Violation of Art. 2;Pecuniary and non-pecuniary damage - award

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

The applicants were born in DATE , DATE and DATE , respectively , and live in GPE . The first applicant is the mother and the remaining CARDINAL applicants are the brothers and sister of PERSON , who was born in DATE and was working as an expert corporal in the special teams of the gendarmerie in GPE .

The facts of the case , as submitted by the parties and as they appear from the documents submitted by them , may be summarised as follows .

At TIME PERSON allegedly committed suicide by shooting himself in the head in the dormitory of the military barracks where he was stationed . A non - commissioned officer who arrived at the scene immediately checked for a pulse and realised that Mr PERSON was still alive . At TIME he was taken to the infirmary in an ambulance .

DATE a First Lieutenant ( “ the military investigator ” ) carried out an inspection of the dormitory , drew a sketch of the place , questioned a number of PERSON colleagues and recorded their statements .

A pistol was found some distance away from the place where PERSON PERSON had fallen , but the exact distance is not specified in the sketch . The pistol had been cocked and had fired CARDINAL rounds but had failed to fire a third time . CARDINAL spent bullet cases and CARDINAL bullets – one of which was misshapen – were also found . It was established that the pistol belonged to CARDINAL of PERSON colleagues , expert sergeant PERSON , who had left it in his locker just outside the dormitory . According to a document drawn up by the military investigator , PERSON had obtained the pistol by smashing the padlock on the locker with a stick .

Expert sergeant PERSON , when questioned by the military investigator , stated that PERSON had stayed at the former ’s house TIME . Mr PERSON had been drunk and in an agitated state . PERSON had been concerned about PERSON state and had taken his pistol away from him and then hidden it in his house . When he had woken up in TIME , PERSON had already left the house , leaving his pistol behind . He had found PERSON in a restaurant , drinking . They had then gone to the barracks where PERSON had unsuccessfully asked expert sergeant PERSON for the key to GPE ’s locker . M.A. had then started to walk away but turned back when he heard a gunshot ; whereupon he saw PERSON on the floor , with a pistol next to his feet .

When questioned by a military prosecutor , expert sergeant PERSON confirmed that he had seen PERSON and PERSON in the corridor and that the latter had asked him for his key to his locker . He had told PERSON that he did not have the key on him . He had then left to attend to business elsewhere in the barracks . He had left his pistol in his locker .

Expert sergeant PERSON told the military investigator that , DATE TIME , he had been changing his clothes in front of his locker in the corridor when PERSON had approached him and asked him where PERSON ’s locker was . PERSON had then heard noises which he thought were coming from the area near PERSON locker . TIME later he had heard CARDINAL gunshots coming from the dormitory . When he had reached the dormitory he had seen Mr PERSON lying on the floor with his head bleeding .

CARDINAL expert sergeants questioned by the military investigator and subsequently by the military prosecutor stated that they had been in their bunk beds in the dormitory when PERSON entered at TIME and asked them to get up and start work . They had told PERSON that it was still too early to get up as their shifts did not start until TIME Mr PERSON had then left the dormitory and they had heard noises coming from the locker area . Mr PERSON had then re - entered the dormitory carrying a pistol . They had then heard him cock the pistol before they heard CARDINAL gunshots within a second of each other . With the exception of CARDINAL of the expert sergeants , none of them had seen Mr PERSON shoot himself . None of the expert sergeants had heard Mr PERSON talking or arguing with anyone before the shooting or seen anyone running away from the scene afterwards .

A number of PERSON colleagues told the military prosecutor that he had been feeling low for DATE and had been drinking a lot . He had fallen in love with a girl in DATE but his mother opposed their marriage .

Expert sergeant PERSON was the only person in the dormitory who claimed to have seen Mr PERSON shoot himself . He told the military investigator that he had seen and heard Mr PERSON fire once , using his right hand and aiming at the right side of his head . When he was subsequently questioned by the military prosecutor , he stated that he could not remember exactly how many shots he had heard as he had been in a state of shock . He added that , although he had been QUANTITY away from PERSON at the time , he had not actually seen PERSON shoot himself as he had covered his face with his hands .

According to a report prepared by the NORP public prosecutor DATE , the military authorities had requested him to assist them in the investigation by carrying out a preliminary examination of the body of Mr PERSON , who had died before his arrival at ORG . Mr PERSON ’s body was formally identified by his colleague , expert sergeant PERSON ..

The prosecutor and a doctor first examined PERSON clothes and observed that there were no bullet holes or any other marks on them . They observed a bullet entry hole on the left temple and a bullet exit hole on the right temple . A lack of gunpowder residue or burns on the skin next to the entry hole led the doctor to conclude that the shot had been fired at close but not at point - blank range . There were no other injuries on PERSON body .

During the examination the prosecutor and the doctor smelt alcohol emanating from PERSON body . Expert sergeant PERSON confirmed that Mr PERSON had been drinking that TIME . PERSON also informed the prosecutor and the doctor that PERSON had been right - handed and had always used his right hand when shooting during their military training .

The doctor secured plastic covers to PERSON hands to preserve them for a subsequent swab test . The body was then sent to ORG , where a post - mortem examination was carried out DATE .

In the course of that examination , the pathologist observed no gunpowder residue next to the bullet entry hole and concluded that the shooting had occurred at point - blank range . The bullet entry hole was QUANTITY above the left eyebrow . The exit hole was next to the right ear . There were burnt and un - burnt gunpowder particles inside the bullet entry hole .

A blood sample was found to contain no alcohol and the cause of death was established as the destruction of the brain . The pathologist also took swabs from PERSON hands for a forensic examination which found gunpowder residue on the outside of the deceased ’s right hand ( report of DATE ) .

On DATE the military investigator concluded his investigation . In a CARDINAL - sentence conclusion , the military investigator stated that PERSON had “ committed suicide as a result of a sudden bout of depression ” .

A lieutenant , who was PERSON immediate commander and who knew him well , was recorded as stating that PERSON had been a very good soldier and that he had not had any psychological problems .

On DATE PERSON , who is one of the applicants and a brother of PERSON , asked the office of the military prosecutor for copies of the documents from the investigation file because the family had “ suspicions surrounding his death ” .

On DATE the lawyer for the applicants wrote to the office of the ORG military prosecutor and repeated the family ’s request for information and documents about the investigation into PERSON “ alleged suicide ” .

On DATE the lawyer for the applicants wrote to ORG and again asked for information about the investigation . The lawyer also stated in his letter that his clients had merely been informed by the military authorities that PERSON had committed suicide . However , neither he nor the family had been given any information or documents from the investigation file despite their written requests . The lawyer submitted that a number of anonymous telephone calls had been made to the mobile telephone which had been owned by PERSON and which had since been returned to the family . The callers had stated that PERSON PERSON had been murdered . The lawyer submitted that the lack of information about the investigation strengthened the family ’s conviction that PERSON had indeed been murdered .

A military prosecutor in ORG replied to the lawyer ’s letter on DATE , enclosing a copy of the post - mortem report . The prosecutor stated that , as the investigation was still continuing , no decisions had been taken yet .

On DATE the military prosecutor in ORG decided to close the investigation . He concluded that PERSON had shot himself in the “ right temple and at close range ” because his mother had opposed his marriage to his girlfriend . He had thus been feeling unhappy . No one had helped him to commit suicide .

The military prosecutor ’s decision is largely devoted to notes reproduced from a notebook which had apparently been found among Mr PERSON ’s personal belongings following his death . Some of the notes are confused and resemble a suicide note .

On DATE the applicants lodged an objection to the military prosecutor ’s decision to close the investigation . They pointed out , inter alia , that gunpowder residue had been found on PERSON right hand but the bullet entry hole had been on the left side of the head . According to the applicants , it was improbable that a person would commit suicide by shooting himself in the left side of the head with his right hand . Furthermore , they drew attention to the failure to determine the distance between the place where the pistol was found and the place where PERSON had fallen . They also pointed to the fact that the military prosecutor had not investigated the conflicting statements made by the officers who had witnessed the incident .

On DATE a military court rejected the objection lodged by the applicants , considering that all necessary investigative steps had already been taken .

On DATE the applicants wrote to the ORG military prosecutor ’s office and asked for the investigation to be reopened . In their request they repeated their above - mentioned arguments and added that they had not been consulted during the investigation . They also argued that the case file should have been sent to ORG with a view to obtaining that ORG opinion as to whether it would have been possible for PERSON to commit suicide by shooting himself in the left side of the head with his right hand . They pointed out that the pistol used in the incident had been semi - automatic , meaning that the trigger had to be pulled for each shot and , as such , it would not have been possible for PERSON to shoot himself a second time after a bullet had already entered and exited his head . Nevertheless , according to the investigation , the pistol was found cocked and it was established that it had failed to fire a third time . To try to shoot himself a third time , they maintained , would have been impossible .

The applicants also submitted in their request that neither the pistol nor the wooden stick allegedly used to smash the padlock on GPE ’s locker , nor the locker itself , had been examined for fingerprints to establish whether Mr PERSON ’s fingerprints were on them .

They asked the military prosecutor to carry out another investigation with a view to eliminating these unresolved issues and to determine with certainty whether PERSON had been killed or had committed suicide as alleged . They maintained that , even assuming that PERSON had committed suicide , those responsible for the failure to ensure his psychological wellbeing should be prosecuted .

The applicants did not receive any information about the outcome of their application for a reopening of the investigation .


No violation of Art. 5-1;Violation of Art. 5-4;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

On DATE , following proceedings on appeal , ORG ( ORG ) convicted the applicant of attempted homicide and sentenced him to CARDINAL months’ imprisonment with deduction of the time spent in pre - trial detention . In addition , ORG imposed a ORG order ( terbeschikkingstelling ) with confinement to a secure institution ( met bevel tot verpleging van overheidswege ) . The ORG order took effect on DATE and expired DATE , on DATE .

By decision of DATE , ORG ( Arrondissementsrechtbank ) of GPE prolonged the ORG order by DATE . It was consequently due to expire on DATE .

On DATE the public prosecutor filed a request for a further prolongation with ORG , where it was registered on DATE . This prolongation request was based on an advice of DATE by the secure institution where the applicant was being treated . In this advice , a prolongation of the ORG order was recommended because the applicant was still considered capable of being seriously aggressive towards other people .

ORG examined the request in the course of a hearing held on DATE . The applicant submitted that the public prosecutor ’s request for a prolongation should be declared inadmissible since ORG was no longer competent to prolong his ORG order as it had expired on DATE . The applicant further submitted that ORG had failed to comply with LAW ( Wetboek van Strafvordering ; hereinafter referred to as “ ORG ” ) which provides that a decision on a request for prolongation has to be taken within DATE after the submission of the request for prolongation .

In its decision of DATE , ORG rejected the applicant ’s arguments and prolonged his ORG order with confinement to a secure institution by DATE , taking into account the advice issued by the secure institution where the applicant was being treated and the testimony of an expert witness , recommending that the ORG order should be extended because the applicant was still considered capable of being seriously aggressive towards others . ORG admitted that the examination of the request had not taken place within the time - limit contained in LAW ORG and that the reason therefor was the fact that during DATE it had not been able to hold sufficient hearings with judges having the specialised knowledge needed . However , it held that a failure to observe the time - limit in LAW ORG did not imply that the public prosecutor ’s request should be declared inadmissible . It noted that the date of the hearing in the instant case had been fixed on DATE , i.e. within DATE after the submission of the prolongation request . It further noted that , by summons of DATE , the applicant had been invited to appear at the hearing of CARDINAL DATE and that a copy of the summons had been sent to his representative . ORG considered that , if the latter had objected to the fixing of that date , the hearing could have been rescheduled for an earlier date during the recess . ORG concluded that in all these circumstances the general security of persons required a prolongation of the ORG order .

The applicant filed an appeal with ORG on DATE . In the course of a hearing held on DATE , ORG heard the applicant and a psychologist working in the secure institution where the applicant was under treatment .

In its decision of DATE , ORG noted that the decision of DATE had been taken DATE after the expiry of the time - limit provided for in LAW . It held that ORG could and should have scheduled a hearing date before the expiry of the time - limit . Moreover , LAW ORG made ORG responsible and not the applicant or his lawyer to see to it that the time - limit was observed . It further held that failure to observe the time - limit entailed neither the inadmissibility of the prosecution ’s request , nor the incompetence of ORG to examine this request , nor yet the expiry of the ORG order . On the basis of the failure to respect the time - limit referred to in LAW ORG and the unsatisfactory reasons therefor stated by ORG , ORG decided to quash the decision of DATE and , on appeal , to determine itself the prolongation request .

After having noted the advice of the secure institution where the applicant was receiving treatment and an expert opinion concerning the applicant ’s medical condition , ORG decided to extend the ORG order with confinement to a secure institution by DATE .

The applicant ’s post - sentence confinement , the order was finally terminated on DATE .

Article CARDINAL of LAW ( PERSON ) enables courts , when dealing with certain serious crimes , to impose a ORG order on a defendant whose mental faculties were inadequately developed or pathologically disturbed as the time of the commission of the offence . If the safety of others or the general safety of persons or goods so requires , the court may further direct that such a person be confined to a secure institution in accordance with Article PERSON of LAW . A ORG order with confinement to a secure institution can also be imposed in conjunction with a custodial sanction if the convicted person ’s responsibility was merely diminished at the time of the commission of the offence . In such a situation , the ORG order will take effect after the convicted person has served the prison sentence imposed . A ORG order with confinement to a secure institution is not intended to have a punitive effect , but to protect society from any risk posed by the person concerned . A confinement order is subject to statutory time - limits , but there is in principle no restriction on the number of extensions that can be granted .

The provisions relating to the extension of a confinement order are set out in ORG CARDINALo – CARDINALx of LAW PERSON ; “ ORG ” ) .

Article CARDINALo § CARDINAL ORG provides that the public prosecutor ’s office ( openbaar ministerie ) may submit a request ( vordering ) for the prolongation of a confinement order no sooner than DATE and DATE before the time at which the ORG order is due to expire . The request must be accompanied by a recent recommendation prepared by the institution in which the patient is being treated ( Article CARDINALo § CARDINAL ORG ) . In accordance with the provisions of LAW ORG , the person concerned must be given a copy of the request as soon as possible .

NORP The court competent to decide on such a request is ORG that tried the person concerned at first instance for the crime that gave rise to the ORG order ( Article CARDINALp ) .

Article CARDINALq CCP , in so far as relevant , reads :

“ CARDINAL . The ORG order shall remain in force as long as no final decision on the request < for its prolongation > has been taken ( “ zolang op de vordering niet onherroepelijk is beslist ... ” ) . Where the request is granted after DATE on which the ORG order , by passage of time , would have expired had no prolongation request been filed , the new period shall nevertheless start to run on DATE . ... ”

ORG must immediately ( onverwijld ) set a date for the examination of the case , and the person concerned must be timely informed of DATE ( Article CARDINALs § CARDINAL ) . The decision of ORG must be rendered as soon as possible , but DATE from the date on which the request was lodged ( LAW ) . ORG may , however , exceed this time - limit if it wishes to consider refusing the request – thus terminating the ORG order – and if it needs more information as to the way in which the person concerned might be released back into society . In such a case , the court has DATE to render its decision ( LAW ) .

Under LAW CCP , the time - limit referred to in LAW t § CARDINAL ORG does not apply where a circumstance has arisen on grounds of which the court can not comply with its obligation pursuant to LAW to hear the person concerned before deciding the request . In such a situation , ORG must decide the prolongation request within DATE after the obstacle for hearing the person concerned has ceased to exist .

ORG decision shall be reasoned . If it decides to prolong the ORG order , the decision must be pronounced publicly ( Article CARDINAL t § CARDINAL ) . An appeal against a decision on a prolongation request lies with ORG , which must determine the appeal as soon as possible ( Article CARDINAL § CARDINAL ORG ) . However , no appeal lies against a first decision to prolong the ORG order for DATE ( Article CARDINALv ) .

There is no express provision requiring the release of the person concerned if the time - limits laid down by ORG CARDINALo § CARDINAL and CARDINAL t § § CARDINAL and CARDINAL are not complied with , nor does the ORG impose any sanctions on exceeding these time - limits .

According to GPE case - law , summary civil proceedings ( kort geding ) may be instituted in cases where a person subject to a confinement order wishes to obtain a court judgment on the lawfulness of his detention .

In a judgment of ORG ( PERSON ) of DATE ( PERSON ( GPE ) DATE , no . CARDINAL ) , it was held that a confinement order remains lawful even if the decision to prolong it has been taken after the expiry of the CARDINAL months’ time - limit now provided for in LAW , as this time - limit is merely of an exhortatory nature .

According to a judgment of ORG of DATE ( GPE DATE , no . CARDINAL ) , a failure to comply with the statutory two months’ time - limit does not in itself give rise to an obligation to terminate a confinement order and to release the person concerned . Only in certain circumstances would the ORG be obliged to terminate a confinement order after its statutory period had expired and no decision as to its prolongation had been taken . In order to determine whether such an obligation exists , the court should have regard to the extent to which the statutory time - limit had been exceeded , the reasons for which the time - limit had not been complied with and the personal and societal interests involved .

In decisions taken on DATE and DATE , ORG held that a failure to respect the time - limit set out in LAW does not affect the validity of the running confinement order since , in accordance with LAW , it remains in force until a final decision has been taken on request for prolongation thereof .


Violation of Art. 6-1;No violation of Art. 3;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant is a NORP citizen , born in DATE .

On DATE the applicant was interviewed by officers of ORG in connection with allegations of market rigging , theft and false accounting , alleged to have taken place in the course of the takeover of CARDINAL company by the company in which the applicant , a chartered accountant , was involved . The alleged offences took place during DATE .

The applicant was further interviewed on DATE and CARDINAL DATE , and was formally charged on DATE .

The applicant ’s trial began in DATE and on DATE , after a trial lasting DATE , the applicant was convicted of conspiracy to defraud and CARDINAL counts of theft . The proceedings were adjourned for pre - sentence reports , and on DATE the applicant was ordered to perform TIME community service . He was also ordered to pay compensation of ORG CARDINAL within DATE , with DATE imprisonment in default , and was further ordered to pay GBP CARDINAL towards prosecution costs .

The applicant lodged a notice of appeal against conviction on DATE , and on CARDINAL DATE , the Attorney General made a reference to ORG for a review of the applicant ’s sentence under Section CARDINAL of LAW DATE . In DATE , the applicant was refused legal aid on financial grounds .

On DATE the applicant , privately represented , submitted perfected grounds of appeal and his response to the Attorney General ’s reference . Leave to appeal against conviction was granted on DATE . A request for the legal aid position to be reconsidered was refused by a single judge in DATE .

NORP In DATE , after a summary of the case had been prepared by ORG , the case was sent to ORG , and on DATE the hearing dates were fixed with counsel ’s clerks .

On DATE the Attorney General served an amended Section CARDINAL reference .

The applicant 's appeal against conviction was dismissed by ORG on DATE , and on DATE , the Attorney General 's reference was heard by ORG . ORG found as follows :

“ We grant leave in respect of each of these applications , as we consider the sentence imposed by Judge PERSON in respect of each of the defendants was unduly lenient . ( … )

Much has been said about the delay in this case . It does indeed seem a very long time . But it has to be borne in mind that much of the delay in the hearing of these applications has resulted from the fact that CARDINAL of the defendants chose , as was their right , to appeal against conviction .

We regard conduct of the sort involved here , that is to say working to create a false market in shares in companies involved in a GPE takeover , and in order to influence the fate of that takeover , as a very serious matter . Not only may it lead to a fraud on shareholders , but it causes considerable damage to the reputation of GPE , which is very important to the whole country ; and damage to the confidence of the public in its institutions .

We consider it very unlikely , therefore , that when such conduct comes before the courts for sentence that a Community Service Order could ever be sufficient punishment . We have no hesitation in concluding that it was inappropriate , that is to say too lenient , in respect of the conduct in this case . True no actual false market was created , but it was not for want of trying . ( … )

Dealing first with [ Mr X ] . We view him as the instigator and leader of the operation . In our judgment , the right sentence which should have been passed on him by a trial judge upon conviction , additional to compensation and the costs order , was DATE imprisonment . We now start by taking into account that he did serve the period of community service that he was called upon to serve , and served it well apparently . Next we deduct from the sentence what has come to be known as the ‘ discount for double jeopardy’ . After those deductions , we arrive at a sentence , to run from DATE , of DATE imprisonment . We further disqualify him from holding a directorship of a public company for DATE from DATE .

Turning to [ the applicant ] . He was an active and powerful second in command . The right sentence in his case , we believe , would have been CARDINAL months’ imprisonment . Again we do the discounting that we did in the case of [ Mr X ] ; and we arrive at a sentence of CARDINAL months’ imprisonment , starting from DATE . We disqualify him from holding a directorship in a public company for DATE . ”

The compensation and costs orders remained . The applicant had already completed the community service to which he had originally been sentenced .

In addition to the general regime of appeals against decisions of ORG , the Attorney General may , in certain circumstances and where it appears to him that a sentence of ORG has been unduly lenient , apply to ORG for leave to refer the case to it to review the sentence . The principal relevant provisions are to be found in LAW of LAW DATE . An application for leave must be made within DATE of the sentence . Where the Court of Appeal grants leave , it will consider a sentence “ unduly lenient ” where “ it falls outside the range of sentences which the judge , applying his mind to all the relevant factors , could reasonably consider appropriate ” ( Attorney General ’s Reference No . DATE , Cr . App . PERSON ) CARDINAL ) . ORG has also commented that “ before this ORG granted an application of this sort , it must be shown that there was some error in principle in the judge ’s sentence ... that in the absence of a sentence being altered by this ORG , public confidence would be damaged ... the ORG should only grant leave in exceptional circumstances , and not in the borderline type of case ” ( Attorney General ’s Reference No . CARDINAL of CARDINAL CARDINAL Cr . App . PERSON ) CARDINAL ) .

Where a person ’s sentence is increased , an allowance is made to reflect the additional period of anxiety imposed on an offender awaiting a second sentencing hearing .


Violation of Art. 6-1;Violation of P4-2;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall

The applicant was born in DATE and lives in GPE , GPE . At the time of the events he was living in GPE .

On DATE , DATE the NORP police took a statement from the applicant in connection with criminal complaints lodged against him by his business partners concerning alleged fraud .

On DATE criminal proceedings against the applicant were opened and he was placed in police custody on charges of fraud through his business transactions .

DATE , the prosecutor attached to ORG ordered the applicant 's remand in custody .

On DATE the prosecutor attached to ORG committed the applicant for trial before ORG .

On DATE ORG held the first hearing in the case . The applicant 's lawyer asked for a rescheduling in order to prepare the defence . Several other hearings were scheduled for the taking of evidence . On several occasions ORG postponed the case due to shortcomings in the summoning procedure .

On DATE a witness 's testimony was heard , in the presence of the applicant and his lawyer .

In a judgment of CARDINAL DATE , ORG convicted the applicant of fraud , sentenced him to DATE imprisonment and awarded civil damages to the victims . It also ordered the applicant 's expulsion , after having served the sentence , given his NORP nationality .

On DATE ORG allowed an appeal by the applicant and remitted the case to ORG for a new trial on the merits . It found that the court of first instance had not clarified all the relevant facts and that it had not examined all the charges against the applicant , as formulated by the prosecutor on DATE .

DATE and DATE some forty hearings were scheduled before ORG , the case being repeatedly adjourned for failure to properly summon the parties , the absence of the parties or the absence of the prosecution file . On DATE the case was adjourned in order to allow the applicant to hire a new lawyer .

The applicant filed motions for bias against the judges of ORG on DATE , DATE and CARDINAL DATE . They were all dismissed .

On DATE ORG , after reassessing the evidence adduced in the case , again convicted and sentenced the applicant to DATE imprisonment , with an obligation to pay civil damages .

On DATE , upon an appeal by the applicant , ORG ended the trial , as the criminal charges against the applicant had become time - barred . After reassessing the evidence and based on its findings , ORG recalculated the amount of civil damages to be awarded to the victims .

In a final decision of DATE , ORG , after reassessing the evidence in the case , dismissed an appeal on points of law by the applicant against the decision of DATE .

On DATE the ORG lodged an application with ORG to have the part of the final decision of DATE concerning the expulsion order quashed ( recurs în anulare ) .

In a final decision of DATE , ORG allowed the extraordinary appeal , quashed the part of the final decision of DATE concerning the expulsion order and set aside that order on the ground that the applicant had never lost his NORP citizenship , which would make his expulsion unconstitutional .

On DATE ORG , upon the applicant 's request , revoked the order for his arrest , but imposed on him an obligation not to leave the city , a precautionary measure provided for by LAW ( the “ ORG ” ) .

On DATE the applicant lodged with ORG a request to have this prohibition revoked . He argued that , if allowed to travel abroad for business purposes , the funds to pay the damages could be recovered more quickly . In a decision delivered on DATE , ORG dismissed the request . It held that it was not necessary for the conduct of his business that the applicant travel abroad or to another town , since he could appoint a representative .

On DATE ORG dismissed an appeal by the applicant against this decision . It held that , according to the ORG , the applicant could only challenge the prohibition when appealing against the decision on the merits of the case .

On DATE and DATE , DATE and DATE ORG rejected further requests from the applicant to have the measure lifted , without specifying reasons . On DATE ORG rejected a similar request on the ground that the circumstances that had led to the taking of the measure had not changed .

On DATE the applicant left GPE of his own free will and took up residence in GPE .


The relevant Articles of the Code of Criminal Procedure which was in force at the time of the events , read as follows :

“ Unless otherwise specifically provided by law , objection proceedings are conducted without a hearing . If necessary , the public prosecutor [ may be ] heard . ”

“ As regards infringements falling within its jurisdiction , the ... magistrates ' court makes its ruling , without holding a hearing , through a penal order . The order can only be given in cases of simple or aggravated fines or in relation to offences carrying a maximum prison sentence of DATE ... ”

“ The judge schedules a hearing if he sees an inconvenience in ruling in the absence of CARDINAL . ”

“ A hearing shall be held if the objection is raised against a prison sentence imposed by a penal order . ( ... )

The suspect can be represented by defence counsel during the hearing . ( ... )

The objections against penal orders ( ... ) are examined by a judge at the criminal court of first instance , in line with the procedure described under LAW , CARDINAL and CARDINAL . The objection would suspend the execution of the penal order . ”

“ Where the Minister of ORG has been informed that a judge or court has delivered a judgment that has become final without coming under the scrutiny of ORG , he may issue a formal order to ORG requiring him to ask ORG to set aside the judgment concerned ... ”


Violation of P1-1;Just satisfaction reserved

The applicant was born in DATE and lives in PERSON . He is a businessman .

NORP In DATE the applicant acquired , at an auction held in the context of denationalisation of ORG property , real property located in the centre of PERSON town . The opening price at the auction had been fixed at CARDINAL NORP korunas ( Kčs ) in accordance with the relevant price regulation . The applicant purchased the property for Kčs CARDINAL,CARDINAL .

The applicant took out a bank loan with a view to paying the purchase price . Subsequently , in the course of DATE , he took out further loans including CARDINAL for CARDINAL NORP koruans ( SKK ) for the purpose of reconstructing the buildings .

In DATE ORG in LOC determined that the applicant had acquired the above real property in association with his partner PERSON , and that they each owned CARDINAL of the property . As a result , Mr T. started running his business in the re - constructed part of the LOC . Since he was not able to benefit from the use of a part of the LOC , the applicant submitted that he was unable to pay the instalments to the bank .

On DATE ORG ordered the applicant and a third party who had guaranteed the applicant 's debt to pay a sum to the creditor bank . The judgment became final on DATE . On DATE ORG issued a payment order against the applicant and the guarantor ordering them to pay different parts of the debt . The payment order became final on DATE .

On DATE ORG , at the creditor 's request , authorised an executions officer to execute the above decisions . The creditor bank agreed to the recovery of the debt by selling the applicant 's share in the above real property . Both executions were carried out simultaneously as they concerned the same persons .

NORP The applicant submitted that the executions officer and the applicant 's brother had reached an agreement under which the latter would start paying off the debt and that no sale of the property would be ordered .

On DATE the applicant filed an objection to the execution on the ground that he had requested the re - opening of the proceedings concerning the ownership of the property . On DATE ORG dismissed the objection .

On DATE the executions officer ordered the sale of the applicant 's share in the real property in issue . On DATE the applicant requested that the execution be adjourned . On DATE ORG dismissed the request .

On DATE the executions officer informed the applicant that an expert had valued the whole property at SKK CARDINAL,CARDINAL on DATE .

Both the applicant and the creditor bank objected to the valuation . In particular , in a letter of CARDINAL DATE the bank 's representatives referred to an expert opinion of CARDINAL DATE elaborated for the purpose of the applicant 's loan request . In it the expert had valued the property , in accordance with the relevant price regulations including Regulation No . CARDINAL , at Kčs CARDINAL . The bank 's letter further stated that the value of real property had increased several times in the meantime and that the applicant had reconstructed the property . Reference was made to the loan of SKK CARDINAL,CARDINAL and the relevant bills . The property was situated in the centre of the town whereby its value was increased .

The executions officer asked for a second expert opinion . In it a different expert assessed the value of the property at SKK CARDINAL,CARDINAL on DATE . The property was valued pursuant to Regulation No . DATE . That valuation did not reflect the market value of the property .

On DATE the executions officer announced that the applicant 's share in the property would be sold at an auction on DATE . The opening price was to be SKK CARDINAL which corresponded to CARDINAL of the value of the whole property as determined by the second expert .

On DATE the other co - owner of the property availed himself of his pre - emption right and deposited SKK CARDINAL with the executions officer .

On DATE the executions officer informed ORG and the applicant that the real property would not be sold at an auction as the co - owner of the property had deposited a sum corresponding to its value . Reference was made to section PERSON ) of ORG .

On DATE the applicant filed objections to the execution . He complained that an auction had been scheduled in disregard of the fact that his brother had undertaken to pay off the debt and that CARDINAL payments had been made DATE . The applicant further objected that the value of the property as determined by experts was disproportionately low . In particular , the applicant argued that a different expert had established a report , in DATE , according to which the value of the property had been Kčs CARDINAL at that time , and that CARDINAL had subsequently been invested in the building . The applicant submitted that the actual value of the property was approximately double the sum established by the experts . He requested that another expert assess the value of the property .

On DATE the ORG judge informed the executions officer that he had proceeded erroneously . The letter stated , in particular , that the market value of the property should have been established for the purpose of the execution . Reference was made to section CARDINAL(CARDINAL ) of ORG . The judge requested the executions officer to have the assessment modified by an expert accordingly .

On DATE the executions officer informed ORG that experts were bound by Regulation No . CARDINAL and that they could not , therefore , take into account the market value of the property in issue .

NORP In a decision of CARDINAL DATE ORG confirmed that the co - owner had acquired the applicant 's share in the property in that he had deposited the above sum of SKK CARDINAL with the executions officer . ORG further dismissed the applicant 's objections concerning the valuation of the property . It held that the experts had been bound by Regulation No . CARDINAL . The fact that the executions officer had disregarded the above agreement according to which the applicant 's brother would start paying off the debt was irrelevant as such agreement was subject to approval by the creditor . No such approval had however been given . No appeal lay against ORG decision .

Subsequently the applicant 's brother claimed the sum of money which he had paid to the executions officer in order to pay off the applicant 's debt . On DATE ORG in PERSON dismissed the action holding that the money paid had been transferred to the applicant 's creditors with a view to paying off the latter 's various debts .

On DATE the ORG requested an expert to determine the market value of the property in issue as of DATE . In an opinion comprising CARDINAL pages and dated DATE the expert found that the general value of the whole property had been SKK CARDINAL at the relevant time . The fact that the property had been co - owned by CARDINAL persons could have affected its value . At that time similar real property had been sold at a price QUANTITY and CARDINAL .

On DATE a different expert valued the property at the applicant 's request of DATE . His opinion indicates that , in DATE , the general value of the property in issue had been SKK CARDINAL,CARDINAL,CARDINAL . On DATE it amounted to SKK CARDINAL .

Section CARDINAL ) , as in force until DATE , provided for the value of property to be established in an expert opinion .

Pursuant to section ORG ) , as in force until DATE , the lowest bid at a sale by auction of real property equalled the price as established in an expert opinion .

Section CARDINAL(CARDINAL ) provides , inter alia , that the purchase price of property obtained as a result of its sale at an auction is not limited by price regulations .

Pursuant to section DATE ) , where the proceeds of the sale exceed all claims to be satisfied in the context of the execution , the executions officer shall , after having satisfied all justified claims , transmit to the debtor the remainder of the proceeds of the sale .

Under section PERSON ) , a co - owner of an object which is to be sold in the context of an execution can prevent its sale if he or she deposits with the executions officer , prior to the start of the auction , a sum corresponding to the value of the share which is to be sold . The executions officer shall use the sum thus obtained as income from the sale .

As from DATE , section ORG ) was amended in that an expert opinion on the value of real property should comprise both the price established pursuant to the relevant price regulation and the market price of the real property in question .

Pursuant to amended section CARDINAL(CARDINAL ) , the lowest bid at a sale by auction of real property equals the market value of the property as determined by an expert under section CARDINAL ) .

Regulation No . CARDINAL of CARDINAL DATE governed , inter alia , the valuation of buildings and of plots of land . It was repealed with effect from DATE .

Section CARDINAL(a ) provided that the ORG extended , inter alia , to the determination of the opening price for the purpose of the sale of property at public auctions unless the law otherwise provided .

Regulation No . CARDINAL/CARDINAL governs the determination of the general value of property and became operative on DATE .

Section CARDINAL(CARDINAL ) provides that it applies to determining the general value of property in the context of proceedings under , inter alia , ORG .

Pursuant to section CARDINAL(CARDINAL)(a ) and ( b ) , the general value of property is its final value determined in an objective manner by an expert and corresponding to a price for which the property could be realised in normal circumstances at a given place and time . It should include , as a rule , value - added tax . The state of the property , influence of the market , economic situation and other specific factors should be taken into account .

NORP In opinion FAC of DATE ORG held that courts should take into account the general value of property ( that is the price for which it could actually be sold ) when deciding on the dissolution of joint ownership and on adequate compensation for a part of such property . Such general value of property could not be determined on the basis of the price regulations in force . The opinion stated that the general value should also be applied where a co - owner availed himself or herself of the pre - emptory right to buy the property . The constitutional principle of equality of rights was thereby respected .


CASE OF HARALAMBIDIS AND OTHERS v. GREECE

Preliminary objection allowed (six months period)

The first applicant used to be president of the board of directors and managing director of the first applicant company and manager of the second applicant company . The first applicant company , the full title of which is PERSON , ORG Transports and ORG ( ανώνυμος εταιρία ) , was incorporated under NORP law . It was set up in DATE . The second applicant company , the full title of which is FAC ( εταιρία περιορισμένης ευθύνης ) , was also incorporated under NORP law . It was set up in DATE .

DATE the second applicant company transported cloth from outside ORG into GPE and then to GPE . DATE the customs authorities , suspecting that criminal offences had been committed in the course of this activity , asked for and were granted leave from the local public prosecutor to start a preliminary inquiry .

On DATE and CARDINAL DATE criminal proceedings were instituted against the first applicant and others for contraband , forgery and fraud against the ORG . The first applicant was in essence charged with bringing the cloth into GPE as goods in transit for GPE and then changing its origin by using forged documents in order “ to export ” it to GPE as NORP and avoid paying customs duties . The first applicant company appeared as the NORP “ exporter ” of the cloth .

On DATE and CARDINAL DATE the customs authorities of GPE , considering that the first applicant in his capacity as representative of the CARDINAL applicant companies had committed the customs offence of contraband , decided to impose on him fines of a total amount of CARDINAL drachmas . Fines of a total amount of CARDINAL drachmas were also imposed on PERSON , an employee of the second applicant company and Mr GPE , a customs broker . The customs authorities also decided that customs duties of a total amount of MONEY were due for the importation of the cloth in GPE . The first applicant as representative of the CARDINAL applicant companies was to be jointly and severally liable for the payment of the fines imposed on PERSON and GPE and of the customs duties ( decisions ORG . PERSON and DATE ) . The duties and fines in question were to be recovered in accordance with the LAW for ORG .

The first applicant and the CARDINAL applicant companies immediately lodged appeals ( προσφυγές ) in ORG ( ORG ) of PERSON . The court requested the competent administrative authorities to compile a case - file , which they did on DATE .

The applicants then tried unsuccessfully to obtain various documents concerning the transport of the cloth in question from the customs authorities .

On DATE the first applicant addressed himself to the investigating judge of GPE asking for his assistance in this matter . The investigating judge asked the customs authorities of PERSON to provide the documents in question . On CARDINAL DATE the authorities replied that some could not be found ( VOLET CARDINAL of ORG CARDINAL ) while others did not concern the applicants ( application for a reloading permit No CARDINAL ) . However , the applicants had already received a letter dated DATE from the customs authorities of GPE to the effect that the NORP authorities had sent to the LOC authorities some of the documents that the LOC authorities could not find .

In the meantime the indictments chamber of the first instance criminal court ( PERSON ) of GPE decided that the first applicant should be tried by the CARDINAL - member ORG ( ORG ) of GPE , sitting as a first instance court , for forgery and fraud and by the CARDINAL - member first instance criminal court ( PERSON ) of GPE for contraband . PERSON and CARDINAL others were indicted as well . The applicant and his co - accused appealed .

On DATE the indictments chamber of ORG ( Συμβούλιο Εφετών ) of GPE decided that the applicant and the others could not be tried for contraband because the cloth in question had technically never been imported into or exported from GPE . GPE had never been its destination , it had been brought into GPE in transit and had eventually left GPE for GPE . As a result , no customs duties were due to the NORP authorities and the crime of contraband could not have been committed . Nevertheless , the chamber decided that the applicant and his coaccused should be tried for forgery and fraud .

The trial commenced on DATE . The applicant testified , inter alia , that “ he had gone to the customs office in GPE , GPE to ask for the documents but was told that he lacked locus standi and the matter was internal ” . On DATE the CARDINAL - member ORG decided to adjourn the trial in order to obtain expert evidence on the question of forgery .

In DATE there was a fire on the premises of the first instance ORG , which , as a result , had to be relocated .

The applicants ' appeals against the decisions of DATE and CARDINAL June DATE of the customs authorities of GPE imposing customs duties and fines were heard on DATE , CARDINAL DATE and DATE .

On DATE , CARDINAL DATE and CARDINAL DATE the threemember first instance ORG ( ORG ) of GPE quashed the decisions of DATE and DATE of the customs authorities of GPE . The court considered that the first applicant had not committed the customs offence of contraband because the cloth had entered into GPE in transit and no customs duties were due to the NORP authorities . Moreover , the intention of the applicant was to defraud the NORP authorities and not to deprive the NORP authorities of income due ( decisions ORG . CARDINAL , CARDINAL/CARDINAL , CARDINAL , CARDINAL , DATE and DATE ) . The customs authorities appealed .

On DATE the third applicant company closed down its operations .

On DATE the CARDINAL - member ORG of GPE acquitted the applicant of the forgery and fraud charges .

On DATE the CARDINAL - member ORG ( ORG ) of GPE , by majority , decided to uphold the customs authorities ' appeal . The court considered that the effect of the first applicant 's and his collaborators ' actions was to change the origin of the cloth into NORP . As a result , the cloth had technically been imported into GPE . However , no customs duties had been paid and , as a result , the customs offence of contraband had been committed . The court , however , reduced the amount of the fines to be paid by the first applicant in his capacity as representative of the CARDINAL applicant companies to CARDINAL drachmas and the global fine for which the first applicant was jointly and severally liable to MONEY . CARDINAL judge disagreed . He considered that the contraband offence had not been committed and referred to the findings of the criminal court of appeal ( decisions ORG . CARDINAL , CARDINAL/CARDINAL , FAC , DATE , CARDINAL and DATE ) .

The first applicant and the CARDINAL applicant companies appealed in cassation to ORG PERSON της PERSON ) .

The appeals were set for hearing by ORG on DATE .

In the meantime , on DATE , ORG issued decision No . CARDINAL on an appeal in cassation by the applicants concerning a fine imposed by the customs authorities on another occasion . CARDINAL of the applicants appealed against decision No . CARDINAL before ORG ( GPE PERSON ) on the ground that in another case ORG ( Αρειος Πάγος ) had interpreted LAW in a different manner .

On DATE the customs authorities ordered that the first applicant should not be allowed to travel out of GPE , because of his debts to the ORG .

On DATE the first applicant requested the public prosecutor of GPE to order the customs authorities to give him certain documents . The prosecutor transmitted the applicant 's request to the customs authorities of GPE , which complied . Among the documents provided by the customs authorities were the VOLETS CARDINAL of ORG and ORG DATE that the applicants had requested in DATE .

In DATE the applicant also obtained certain documents concerning the transport of the cloth in question from the NORP authorities .

On DATE the applicants added to their grounds of appeal in cassation the following : The NORP customs authorities had given the wrong classification to the cloth in question . As a result , the applicants had been asked to pay higher duties and fines . The applicants had been able to establish the wrong classification of the cloth on the basis of documents they had obtained from the NORP authorities . It was the correspondence exchanged between the NORP and the NORP authorities that had made the applicants realise that it was necessary to contact the latter . The applicants had had access to the correspondence in question for the first time in DATE following the intervention of the public prosecutor of GPE . If the applicants had had this information earlier they would have been able to include a relevant ground in their appeal to the first instance ORG . Moreover , ORG had not examined the applicants ' submission that the goods in question had been given a wrong classification by the customs authorities and that the customs duties had been calculated wrongly .

On DATE , due to a change in the legislation , the applicants ' appeals in cassation were transferred from the Second to the Sixth ORG . A hearing was set for CARDINAL DATE , when it was adjourned until DATE .

On DATE ORG rejected the appeal by CARDINAL of the applicants against ORG decision No . CARDINAL .

CARDINAL

The applicants have claimed that the text of the decisions of ORG was “ finalised ” ( καθαρογραφή ) on DATE . However , the Government produced a certificate issued by ORG on CARDINAL DATE , whereby it is attested that the relevant judgments were finalised on DATE , certified ( θεώρηση ) on DATE and signed ( υπογραφή ) on DATE .

Following the decision of ORG the first applicant company paid the sums specified in the decisions of the administrative court of appeal plus interest and default penalties as from DATE of these decisions . The applicant company claims that it paid MONEY in total . The Government claim that the company took advantage of the salutary provisions of law No . CARDINAL/CARDINAL and only paid MONEY .


David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in PERSON .

He was employed by ORG as a parish priest in the parish of PERSON from DATE until DATE . On CARDINAL DATE the Cathedral Chapter ( tuomiokapituli , domkapitlet ) issued him with a warning , which was upheld by ORG on an unspecified date .

On DATE the Cathedral Chapter decided to transfer the applicant to the parish of GPE , which is situated QUANTITY from his home in PERSON . He did not consent to the transfer . In its decision , ORG reasoned as follows ( translation from NORP ) :

“ The post of parish priest in the parish of PERSON is open ... and therefore it is for LAW to find a suitable person for the post . It has come to ORG knowledge that the parish priest of the parish of PERSON , PERSON , has stated that he considers himself unable to discharge all his duties . Therefore , the Cathedral Chapter has decided to discontinue PERSON assignment to his current post and give him a new assignment as parish priest in the parish of GPE .

The Cathedral Chapter has heard ORG ( kirkkoneuvosto , kyrkorådet ) and PERSON . ORG has given a positive statement , whereas PERSON has announced that he will not accept a transfer and that he considers that there are no legal grounds for a transfer .

However , considering the need to find a parish priest for the parish of GPE and the difficulties that PERSON has had in discharging all his functions in his current post , there is a justified reason as required by law for transferring him from the parish of PERSON to the parish of PERSON .

Therefore , the Cathedral Chapter appoints PERSON to the post of parish priest in the parish of GPE from DATE until further notice and terminates his assigment as parish priest in the parish of ORG on DATE .

The decision indicated that ORG had applied LAW , section DATE ) , of LAW ( kirkkolaki , kyrkolagen ; Act no . CARDINAL/CARDINAL ) , which provides that there has to be a justified reason for making a decision such as the above . It also indicated that , as provided by LAW , section CARDINAL(CARDINAL ) , as in force at the relevant time , no appeal lay against that decision .

According to the applicant , the transfer had been orchestrated by the Vicar of the parish of ORG , who had not been satisfied with the applicant ’s contribution to his parish work .

The applicant had been consulted in advance in writing about the proposed transfer . On DATE the applicant ’s counsel had informed ORG as follows ( translation from NORP ) :

“ As the representative of the parish priest PERSON I would like to inform you that he does not intend to change his place of employment . He declares that he enjoys his present post in the service of the parish of ORG . There are no legal grounds for transferring him without his consent . ”

On DATE the applicant lodged an extraordinary appeal ( kantelu , klagan ) with ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) , alleging procedural errors in the decision . He claimed that ORG had not been impartial as the Vicar of the parish of PERSON , who was also the chairperson of ORG of ORG , had been present when the decision had been taken . However , he did not allege that the vicar had participated in the decision - making . He also argued that he had not been heard prior to the decision and that his opinion had not been taken into account . In particular , no weight had been given to the fact that his entire family lived in PERSON .

ORG invited the Cathedral Chapter to make observations and communicated them to the applicant . According to ORG , it was an old tradition that a parish priest could be transferred to another parish with or without his consent if the transfer was considered to be in the interests of ORG . According to this tradition , which was comparable to a similar tradition in the armed forces , there was no appeal against a transfer decision . If an appeal were to be allowed , it would cause an unreasonable delay in the organisation of parish work . ORG also reiterated that it was known to all parties in question that the applicant had not been able to discharge all his functions in the parish of PERSON and that he had also faced disciplinary proceedings , resulting in a written warning . As the applicant had not denied this , ORG found it undisputed that he was incapable of fulfilling his duties in the parish of PERSON . The aim of the transfer was to avoid future disciplinary proceedings . Thus , it was also in the interests of the applicant that he be transferred . Moreover , there was a shortage of parish priests in the parish of PERSON . ORG disputed the applicant ’s contention that he had a right to be heard on the reasons discussed when his transfer was being considered . It also contested that the presence of the Vicar of the parish of PERSON had raised any disqualification issue . The vicar had not taken part in the decision - making .

In his observations in reply , the applicant maintained that ORG had not given him an opportunity to be heard about the grounds on which it had subsequently based its decision and according to which there was a shortage of priests in the parish of GPE and the applicant allegedly had difficulties in performing his duties in the parish of PERSON . He pointed out that he could be removed only on grounds provided for by law and that the decision certainly concerned his rights . As to his partiality allegation , he submitted that before the meeting there had been no report on the matter , which meant that the decision had thus been based solely on the discussion in which the Vicar of the parish of PERSON had taken part .

On DATE ORG upheld the Cathedral Chapter ’s decision without examining the merits of the case . It reasoned as follows ( translation from NORP ) :

“ LAW , subsection CARDINAL , paragraph CARDINAL , of ORG ( hallintolainkäyttölaki , förvaltningsprocesslagen ; Act no . ORG ) provides that a final decision may be set aside following a procedural complaint if a person concerned has not been provided with an opportunity to be heard and the decision violates his or her right . Paragraph CARDINAL provides that a decision may be set aside , if there has been another procedural error which may have likewise affected the decision .

PERSON has requested that ORG decision be set aside on the grounds that he was not properly heard . However , PERSON had , as noted in the decision , been heard prior to the decision . Having regard to the fact that the case concerns appointment to a position under LAW , section CARDINAL ( CARDINAL ) , of ORG ( kirkkojärjestys , kyrkoordningen ; Act no . CARDINAL/CARDINAL ) PERSON has been adequately heard .

PERSON has also requested that the decision be set aside on the grounds that the Vicar of the parish of PERSON was disqualified from taking part in the examination of the matter before ORG . As neither the vicar nor the parish of PERSON is a party to the proceedings in issue and as neither can be expected to derive particular benefit or suffer particular loss from the decision , there has not been any procedural error in respect of disqualification in the matter as provided by LAW , subsection CARDINAL , paragraph CARDINAL , of LAW ( hallintomenettelylaki , lagen om förvaltningsförfarande ; Act no . CARDINAL/CARDINAL ) , as in force at the relevant time . On these grounds and having regard to LAW , section CARDINAL , of LAW , ORG rejects the application .

It appears that the applicant has been an assistant vicar of the parish of ORG since DATE .

LAW ( NORP perustuslaki , PERSON grundlag ; Act no . CARDINAL/CARDINAL ) provides :

“ Everyone has the freedom of religion and conscience . Freedom of religion and conscience entails the right to profess and practice a religion , the right to express one ’s convictions and the right to be a member of or decline to be a member of a religious community . No one is under the obligation , against his or her conscience , to participate in the practice of a religion . ”

Article CARDINAL of the LAW provides :

“ Provisions on the organisation and administration of ORG are laid down in LAW . The legislative procedure for enactment of LAW and the right to submit legislative proposals relating to LAW are governed by the specific provisions in that Code . ”

Section CARDINAL(CARDINAL ) of LAW provides :

“ The ORG has the exclusive right to make legislative proposals for the enactment of LAW in all matters which concern solely its own affairs . It has the same right to propose amendments and repeal of LAW . The proposal of the ORG is submitted by the ORG . The task to examine and confirm the proposal of the ORG is vested in the President of ORG . The ORG also has the right to submit proposals for the enactment of other legislation which concerns the ORG . ”

Although LAW is an ORG , no changes other than technical changes can be made to a legislative proposal once it has been submitted . It is for ORG to either accept or reject the proposal of the ORG ( kirkolliskokous , kyrkomötet ) .

The LAW lays down several guarantees against misuse of public powers , in particular in LAW on fundamental rights and LAW , section CARDINAL(CARDINAL ) , pursuant to which the law must be strictly observed in all public activity . At the material time , the relevant Articles were ORG DATE , CARDINAL and CARDINAL ) of the LAW of DATE , as amended by Act no . CARDINAL .

The Government PERSON ( HE TIME ) for the enactment of LAW noted that the ORG is religiously uncommitted . CARDINAL of the purposes for the enactment of LAW was to relieve ORG from the duty to examine provisions concerning the religious doctrine and spiritual activities of the ORG and to strengthen the ORG ’s autonomous power of decision in its own sphere of authority .

It follows from these provisions that the administration of the ORG is autonomous .

The duties of a parish priest are outlined in LAW ( kirkkojärjestys , kyrkoordningen ; Act no . CARDINAL/CARDINAL ) adopted by the LAW , section CARDINAL(CARDINAL ) , provides that a priest ’s specific duty is to hold public services , give holy sacraments , hold other church ceremonies , provide for the care of souls and take confession .

Under LAW and LAW , parish priests have no independent decision - making powers .

Chapter CARDINAL , section CARDINAL(CARDINAL ) , of ORG provides that LAW may appoint a qualified member of the diocese ( hiippakunta , stiftet ) to perform the functions of a parish priest . Prior to an appointment , ORG provides ORG or ORG with an opportunity to submit its opinion , unless the matter is urgent .

Chapter CARDINAL , section CARDINALa(CARDINAL ) , of LAW provides that a parish may not terminate through dismissal the employment of an office holder appointed or a person assigned to the office of a priest . LAW may suspend or withdraw an assignment given to a person to perform the functions of a parish priest where there is a justified reason to do so . LAW ) , paragraph CARDINAL , provides that a prior assignment is considered automatically terminated without notice where the priest in question is appointed , assigned or permanently transferred to another position within the ORG or a parish .

Chapter DATE , section CARDINAL of LAW provides that a parish priest belongs to the diocese in which he has been consecrated as a priest . According to the Government , this means that parish priests are considered to serve the entire diocese and ORG , without being bound to a particular parish or position . Further , a priest who is assigned to a parish by ORG is under an obligation to accept any new assignment . It is also an established principle that , having consecrated someone as a priest , ORG is under an obligation to ensure that the priest also has a valid assignment in the future .

Chapter DATE , section CARDINAL , of LAW , as in force at the relevant time , provided that LAW examined , in the capacity of a judicial authority , appeals in respect of which it had decision - making competence under the law and complaints made by means of extraordinary appeal . In the capacity of an authority of first instance the Cathedral Chapter examined administrative disputes concerning an obligation or a right based on that LAW or LAW and any such disputes between the ORG or a parish and their office holders concerning employment which could not otherwise be resolved by law .

Chapter DATE , section CARDINAL , as in force at the relevant time , provided that subject to other provisions of LAW , in its consideration of administrative cases , applied the provisions of LAW and , in the administration of justice , the provisions of LAW .

Chapter DATE , section CARDINAL , of LAW , as in force at the relevant time , provided that anyone whose interests had been violated by a decision of ORG had a right of appeal . LAW , as in force at the relevant time , provided that ORG applied to appeal and decision - making subject to other provisions of LAW . LAW is based on the principle of a general right of appeal and it refers , in DATE , to LAW stating that the latter contains provisions governing appeals against a decision of ORG .

Chapter DATE , section CARDINAL(CARDINAL ) , of LAW , as in force at the relevant time , provided that without prejudice to other restrictions on the right of appeal , no appeal lay against decisions by LAW on the appointment of office holders , assignment to a given position or related withdrawal of a prior assignment , decisions on the engagement of an office holder on probation , temporarily or as substitute , and decisions on the termination of employment of probationary , temporary or substitute office holders .

Section CARDINAL ) of LAW provides that a final decision may be set aside following a procedural complaint if a person concerned has not been provided with an opportunity to be heard and the decision violates his or her right or if another procedural error has occurred which may have likewise affected the decision .

Section CARDINAL(CARDINAL ) of LAW ( repealed ) provided that a public official was disqualified if he or she was a member of the board of directors , the supervisory board or a comparable body or was the managing director or held a comparable position in a corporation , foundation , institution of a public - law character or public enterprise which was a concerned party or which could be expected to derive particular benefit or suffer particular loss as a result of a decision in the matter . LAW provided that a disqualified person could neither consider the matter nor be present at the proceedings , except where the disqualification could not affect the outcome because of the nature of the matter , or where the proceedings could not be deferred .

Section CARDINAL provided that a concerned party had to be given an opportunity to comment on the claims made by others and on any evidence that could affect the decision . However , a matter could be decided without hearing a concerned party if the claim was dismissed without prejudice or immediately rejected , if the claim that was approved did not affect another concerned party , if it was obviously superfluous for some other reason , if the matter concerned entry into a service relationship or voluntary training or the granting of a benefit based on an assessment of the qualities of an applicant , if a hearing could jeopardise the achievement of the purpose of the decision , or if a decision in the matter could not be postponed .

According to the ORG , the prohibition on appealing against a decision concerning assignment to a given position or withdrawal of an assignment was based on the need to ensure that the duties of parish priests were discharged as appropriate , in accordance with the respective needs of different parishes . The ORG noted , however , that this purpose was not indicated in the Government PERSON ( HE CARDINAL vp ) for the enactment of LAW .

LAW was amended with effect from DATE as regards the restrictions on the right of appeal concerning posts in ORG ( kirkkohallitus , kyrkostyrelsen ) and LAW . In DATE , ORG gave the following consideration in its opinion ( translation from NORP ) .

“ ... In the opinion of ORG , the autonomy of the administration of ORG , based on LAW , must be taken into account in the assessment of the aforementioned proposed provision . ...

Under existing provisions of law , the ORG and the Bishops’ Conference do not decide on issues that would , in view of the foregoing , affect the rights or obligations of individuals . Therefore , the proposed prohibitions on an appeal ( paragraph CARDINAL ) have no relevance for the application of LAW [ according to which everyone has the right to have a decision pertaining to his or her rights or obligations reviewed by a court of law or other independent organ for the administration of justice ] . The proposed prohibitions may in this respect be considered to clarify the existing provisions of law . The bishop and LAW make their decisions on the assignment of a priest on the basis of religious criteria , and decisions made by the bishop alone mainly fall , according to the explanatory report of LAW , within the scope of religious guidance by the bishop . The prohibitions on appealing against such decisions ( paragraph CARDINAL ) do not constitute a problem with regard to LAW . The prohibitions on appealing referred to in subsection CARDINAL , paragraph CARDINAL , relate to such issues concerning the religious workers of the ORG and falling within the scope of the autonomy of a religious community as do not directly affect anyone ’s subjective rights . Nor do the prohibitions on the right to request review and the right of appeal in any other respect cause problems with regard to the LAW . ”


Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before ORG , solicitors in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON of ORG .

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

The applicant ’s wife died on DATE . In DATE the applicant applied for widows’ benefits . On DATE the applicant was informed that his claim had been disallowed . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .

The applicant was cohabiting as from DATE .

The domestic law relevant to this application is set out in PERSON v. the GPE , no . CARDINAL , § § DATE , ORG CARDINAL-IV and Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .


Violation of Art. 6-1;Violation of Art. 8;Not necessary to examine P1-1;Pecuniary damage - financial award;Costs and expenses award - Convention proceedings

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

The applicant and her husband were holders of a specially protected tenancy on a flat in Split where they lived . On DATE they divorced and the husband left .

On DATE ORG threw the applicant out of the flat and moved in .

On DATE the applicant filed an action against GPE for disturbance of her possessions with ORG ( PERSON ) .

In separate proceedings before the same court , on DATE , the applicant obtained a judgment declaring her the sole holder of the specially protected tenancy on the flat .

NORP In the proceedings against GPE on DATE the applicant 's claim was granted and the court ordered GPE to vacate the flat within DATE from DATE when the decision became final . It was established that ORG had forcefully broken into the applicant 's flat and had been living there without any legal ground . The decision became final on DATE .

Given that ORG did not comply with the court 's order to vacate the flat , on DATE the applicant applied for the execution of the decision to ORG . The execution order was issued on DATE .

On DATE ORG invited the applicant to pay an advance for the costs of eviction . On DATE the applicant informed the court that she had paid the costs .

The court ordered the eviction for DATE . However , on that date the execution officer of the court established that the family PERSON occupied the flat .

On DATE the applicant again asked the court to enforce the eviction order . The court scheduled eviction for DATE . However , the eviction was adjourned because the applicant did not appear .

On DATE the court invited the applicant to pay an advance for the costs of eviction .

On DATE the applicant bought the flat and became its owner .

On DATE the applicant asked the court to speed up the proceedings .

The court scheduled eviction for DATE .

NORP However , on DATE and DATE , respectively ORG ( Hrvatska udruga vojnih invalida domovinskog rata ) and ORG Homeland War Veterans ( ORG hrvatskih branitelja PERSON ) asked the court to adjourn the eviction .

When on DATE an eviction officer of ORG attempted to carry out the eviction order he found a number of war veterans obstructing his attempt . Despite the presence of the police the eviction order was not carried out .

On DATE the court invited the applicant to once more pay an advance for the costs for eviction .

The next attempt to carry out the eviction order was scheduled for DATE , but it failed because a physician invited to assist did not appear .

On DATE the court scheduled the date for eviction for DATE . However , the parties agreed that the family PERSON vacate the LOC DATE .

On DATE the family PERSON left the flat and the applicant moved in .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych

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

The applicant is a journalist who worked as a freelance with ORG ( GPE ) , which broadcasted in DATE a television programme to which the applicant contributed as the author of a report . His contribution concerned allegations that the police in GPE , when calling towing services , gave preference to certain enterprises . In the report , the applicant filmed an entrepreneur who parked his towing service car near the motorway to wait for a message from the police radio in order to be able to get to the scene of an accident or breakdown in time . The report then referred to a recording from the police radio ( Polizeifunk ) from which it could be understood that the police gave preference to a certain towing service . The phrases “ I have now talked to the citizen . He would be willing to become a member of [ the towing service association ] at the scene of the accident ” were broadcasted and referred to in the report as a recording from the police radio .

On DATE , ORG convicted the applicant of a violation of section CARDINAL read in conjunction with section CARDINAL of LAW ( see “ Relevant domestic law ” below ) and sentenced him to a fine of CARDINAL . CARDINAL ( ORG ) . ORG found that the applicant had unlawfully communicated the excerpts which he had intercepted from the police radio . LAW served to protect radio emissions of public authorities which were not intended for the general public in order to preserve the functioning of those authorities . It was compatible with the purpose of that provision that it did not provide for any exceptions , and that the provision did not limit the protection to only those messages which were transmitted by the authorities in the course of the lawful exercise of their powers . ORG also considered the possibility of applying the defences to the charge provided for by ORG CARDINAL and CARDINAL of LAW ( see “ Relevant domestic law ” below ) . However , it reasoned that there had been no loophole in the regulations of LAW which would justify the analogous application of those provisions , LAW in particular because LAW had been enacted after LAW had entered into force . It could therefore be assumed that the legislator had intentionally refrained from including similar provisions in that LAW . When assessing the applicant ’s sentence , ORG took into account that the applicant had felt obliged as a journalist to report to the public illegal conduct by the police .

On DATE , ORG declared the applicant ’s appeal inadmissible as manifestly ill - founded . ORG had correctly decided that the applicant ’s conduct had not been justified by a privilege in LAW . ORG found that it had not been necessary to reproduce the excerpts from the police radio message in order to report on the shortcomings in question .

On DATE , ORG refused to admit the applicant ’s constitutional complaint . It reasoned that there had been interference with the applicant ’s freedom to report by means of broadcasting ( LAW , see “ Relevant domestic law ” below ) , despite the fact that the applicant had unlawfully intercepted the police radio . LAW also protected the communication of unlawfully obtained information which could be of significant interest to the general public , for example in cases of shortcomings on the part of the authorities . The interference was however justified under LAW . Article CARDINAL read in conjunction with section CARDINAL of the Telecommunications Act laid down with sufficient precision the conditions for the applicant ’s conviction . These norms were not rendered disproportionate by the fact that the protection of the information could have been achieved by less severe means ( such as coding the police radio messages ) than a general prohibition on their communication . ORG considered such technical means to be less efficient because their effect was more limited .

The application of those norms and the balancing of the competing interests in the present case by the ordinary courts were not objectionable from a constitutional point of view . ORG had considered the importance of the secrecy of the police radio communications and decided that that deserved priority over the interest of the general public in the present case , in particular because the applicant could have reported on the shortcomings in a different manner . The freedom of the press included the right of journalists to decide in which manner information was presented to the public . However , if that manner was in conflict with other interests protected by the law , the ordinary courts could legitimately balance the consequences of the communication of secret information on the one hand , and the consequences of the prohibition for journalists to communicate such information on the other . ORG stressed that ORG interpretation of LAW was not that the information should have been suppressed , but that restrictions applied to the manner in which it could be presented . Therefore , the norms in LAW did not prevent journalists from reporting shortcomings to the public as such .

( CARDINAL ) Every person shall have the right freely to express and disseminate his opinions in speech , writing , and pictures and to inform himself without hindrance from generally accessible sources . Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed . There shall be no censorship .

( CARDINAL ) These rights shall find their limits in the provisions of general laws , in provisions for the protection of young persons , and in the right to personal honour .

Interception by means of radio equipment of messages not intended for the radio equipment shall not be permitted . The content of such messages and the fact of their reception may not , even where reception has been unintentional , be communicated to other parties , even by persons who are not already committed to secrecy under LAW of this LAW . ( ... ) The right to receive radio emissions intended for the general public or an unspecified group of persons as well as the interception and retransmission of messages by virtue of special legal authorisation shall remain unaffected .

A person who , in contravention of section DATE of this Act , intercepts a message or communicates to a third party any message content or the fact of reception thereof shall be liable to a term of imprisonment not exceeding DATE or to a fine .

Article CARDINAL of the Criminal Code provides for a defence ( PERSON ) to a charge of insult . According to that provision , critical judgments about scientific , artistic or commercial achievements , similar utterances which are made in order to exercise or protect rights or to safeguard legitimate interests as well as official reports or judgments by civil servants and similar cases are only punishable to the extent that the existence of an insult results from the form of the utterance or the circumstances under which it occurred .

Article CARDINAL of the Criminal Code provides for the offence of the violation of the confidentiality of the spoken word , but makes an exception if the public communication was made for the purpose of safeguarding preeminent public interests .


The first applicant , Mr PERSON , was born in DATE . The second applicant , Mr PERSON , was born in DATE . Both being nationals of GPE , they live in GPE , GPE . They were represented before the ORG by Mr PERSON , a lawyer practising in ORG . ORG ( “ the Government ” ) were represented by PERSON , Agent , ORG and Law Enforcement .

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

In DATE the applicants took part in a motor - ORG meeting in ORG , GPE , organised in the park of an open - air swimming pool . They slept in a tent under a tree when , due to the heavy rain , a branch broke and fell on them causing them several injuries .

On DATE the first applicant instituted proceedings in the ORG seeking the payment of damages from the owner of the swimming pool , ORG . On DATE the second applicant filed a similar action .

The second applicant ’s case was stayed on DATE and statutorily ceased to exist on DATE . He reintroduced his claim on DATE .

Meanwhile , after having held CARDINAL hearings and suspending the proceedings at the parties’ request DATE and DATE , on DATE ORG dismissed the first applicant ’s action , holding that the respondent was not liable . The court relied largely on the opinions of CARDINAL experts . On DATE ORG dismissed the first applicant ’s appeal . On DATE ORG review bench quashed the first and second instance decisions and remitted the first applicant ’s case to ORG , holding that it had failed to examine whether the GPE had any contractual liability .

After several hearings held in the resumed proceedings and the joinder of the CARDINAL cases on DATE , on DATE ORG dismissed the applicants’ joint action , holding the respondent had neither contractual nor delictual liability .

On DATE ORG finally dismissed the applicants’ appeal .

On DATE ORG rejected the applicants’ petition for review as inadmissible , without examining it on the merits , observing that they had failed to specify any appropriate legal grounds for their motion , as required by CARDINAL of LAW . This decision was served on the ORG representative on DATE .