The purpose of the ORG ’s request is to obtain a decision from the ORG as to whether the facts of the case do or do not disclose a violation by GPE of the obligations binding on it under LAW para . CARDINAL ( article CARDINAL ) of the Convention .

The relevant facts of the case as they appear from ORG and memorial , the Government ’s memorial , the documents produced and the addresses of the representatives appearing before the ORG may be summarised as follows :

PERSON , a NORP citizen , born on DATE , and a company director , has his residence at GPE . At the time of lodging his ORG with the Commission ( DATE ) , he was imprisoned in the central gaol at PERSON .

Proceedings having been instituted against him by the Procureur du Roi at GPE for obtaining money by menaces , fraud and fraudulent conversion , the PERSON was arrested on DATE and subsequently charged with a number of offences of fraud , fraudulent conversion , forgery and uttering forged documents , issuing uncovered cheques and fraudulent bills as well as obtaining credit by false pretences .

On DATE , he was found guilty by ORG on DATE out of QUANTITY counts and sentenced to a DATE ’s imprisonment and a fine of MONEY .

On DATE , ORG in GPE modified this judgment against which both GPE and the prosecution had appealed on CARDINALth and CARDINALth DATE . It found all the charges to be established including those on which GPE had been acquitted at first instance , stressed the seriousness of the offences and referred to his previous convictions . It accordingly increased his principal sentence to DATE imprisonment and further decided that on serving his sentence he should be " placed at the disposal of the Government " for DATE thus granting an application by the prosecution which had been rejected by ORG .

On DATE , the Applicant appealed to ORG against the judgment of ORG and against that of ORG . He lodged a memorial on DATE . The ORG department ( parquet ) at ORG did not avail itself of its right to file a counter - memorial . A public hearing took place before the second chamber of ORG on DATE ; the Applicant himself was present at that hearing but not his counsel . ORG heard the report of Judge PERSON , its rapporteur , and then the submissions of the PERSON général , Mr. PERSON , to the effect that the CARDINAL appeals should be dismissed . In its judgment delivered DATE , after deliberations held in private the ORG dismissed the CARDINAL appeals .

In the ORG which he lodged with the Commission on DATE ( No . CARDINAL ) , GPE complained of the judgment of CARDINALst DATE and the judgments on appeal of DATE and DATE . Protesting his innocence and alleging the violation of ORG CARDINAL , CARDINAL , DATE and DATE ( article CARDINAL , article CARDINAL , article CARDINAL , article DATE ) of the LAW , he presented numerous complaints almost all of which were declared inadmissible by the Commission on DATE and CARDINALth April CARDINAL . On DATE , however , the ORG accepted CARDINAL complaint which related to the question whether the presence of a member of ORG department at the deliberations of ORG was compatible with the principle of " equality of arms " and hence with Article CARDINAL para . CARDINAL ( article CARDINAL ) of the Convention .

In fact , the PERSON général , Mr. PERSON , was present at the ORG ’s deliberations in accordance with LAW which provides " ... in cassation proceedings the ORG général has the right to be present , without voting , when the ORG retires to consider its decision " . It may be observed that this Decree has recently been replaced by certain provisions of the new LAW of CARDINALth DATE ) which was not yet in force when ORG dismissed PERSON ’s appeals . The above - mentioned provision of the CARDINAL Decree has been re - enacted , in substance , in LAW .

Following the decision of CARDINALth April CARDINAL declaring this complaint admissible , a ORG ascertained the facts of the case .

Before the ORG and ORG , the PERSON maintained that the presence of a member of ORG department at ORG at the deliberations of DATE had violated Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW . Without disputing that there is a considerable difference between the respective functions of ORG department at ORG and the Procureur général ’s department at the courts below , he stressed that in accordance with the law the former does sometimes appear as a party even though this did not happen in this case . Furthermore , the ORG department at ORG does , in the view of the Applicant , exercise supervision over the GPE généraux at ORG ( section CARDINAL of GPE of DATE ) ; a very strong statutory tie , therefore , links him with them , his subordinates , even if in practice the supervision in question is nowadays rather discreet . Again , the ORG department at ORG was , in the great majority of cases , the opponent - at any rate potential - of the convicted persons who appealed to the highest court in GPE : the Procureur général usually submitted that their appeals should be dismissed and his opinion was nearly always adopted - as in this case - by the judges . Then the Applicant stressed that the Procureur général , after having developed his submissions at the end of the hearing in open court , also participated in its private deliberations from which the parties are excluded . This caused a violation of the rights of the defence and , particularly , of the principle of " equality of arms " , as it was defined in the opinions given by the Commission in the PERSON , ORG , PERSON and GPE cases ( Applications Nos . CARDINAL/CARDINAL , QUANTITY , CARDINAL/CARDINAL and DATE , ORG , Vol . CARDINAL , pp . CARDINAL to CARDINAL and CARDINAL to CARDINAL ) . The Applicant specified that he did not mean , however , to raise the slightest doubt as to the absolute conscientiousness with which ORG fulfils its function or to suggest that the ORG department might attempt unduly to influence the court in any direction other than that of strict justice . In other words , GPE was not criticising persons but rather the institution which gave an advantage to ORG department . Admittedly , the legislation in issue dated back for DATE and ORG had decided on CARDINAL occasions that it did not need to amend it . The legislation , however , dated from a time of absolute monarchy and carried that stamp ; furthermore , the incorporation of the LAW into the domestic law of a ORG necessarily " kept bringing to light new controversial points which had not been noticed by the national legislature " .

In his observations of DATE , DATE after the lodging of the LOC , GPE further complained that he had not been able to reply to the submissions of ORG department at ORG : he had not been informed of this submission before the hearing of DATE nor did he have the right to the last word at that hearing .

The Applicant applied for the repeal of the legislation under attack and claimed pecuniary damages .

On the failure of the attempt made by ORG to arrange a friendly settlement , ORG drew up a ORG as required under LAW article CARDINAL ) of the LAW . This ORG was adopted on DATE and transmitted to ORG on DATE . ORG expressed therein , by CARDINAL votes against CARDINAL , the opinion that Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW was not violated in the present case . CARDINAL members of the majority expressed a joint concurring opinion and the CARDINAL members forming the minority expressed their dissent in a joint opinion .

After the case was referred to the ORG , the PERSON returned to and developed some of his earlier arguments in a document which the ORG appended to its memorial . As regards his main complaint , the PERSON stated that he associated himself with the opinion of the minority of the Commission .

Arguments of the ORG and the Government

Unlike the Government , the Commission considers unanimously that Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW is applicable in the present case to the proceedings in cassation .

In the view of the majority of the Commission , however , the presence of a member of ORG department attached to ORG at the deliberations of DATE was not incompatible with this text . In actual fact , this highest court in GPE does not deal with the merits ( fond ) of cases ( Article CARDINAL of the LAW and LAW of DATE ) ; save in certain exceptional matters , irrelevant to this case , ORG sole function is to decide questions of law . The ORG department is confined to assisting ORG in the exercise of its functions . That department does not , ordinarily , conduct prosecutions and it has not the character of a party ( LAW ) . In almost all cases it is completely independent of the Minister of ORG and has no right of direction over the ORG department which is attached to the courts of first instance and appeal and which is the prosecuting authority in normal cases . The participation of the ORG department at the deliberations of ORG does not , therefore , conflict with the principle of " equality of arms " , even when it is examined in the light of the precedents set by ORG ( PERSON , ORG , PERSON and GPE cases ) .

The Delegates of the Commission brought to the attention of the ORG the joint dissenting opinion of CARDINAL members of the Commission : these members of the Commission were of the opinion that the participation of the ORG department at the deliberations of ORG did not comply with the requirements of Article CARDINAL para . CARDINAL ( article CARDINAL ) .

The Commission did not deem it necessary to express an opinion on the " new " complaints which appeared in GPE ’s above - mentioned observations of CARDINALth DATE ( paragraph CARDINAL above ) ; in the ORG ’s view , the Applicant presented them only as special aspects of the principle of " equality of arms " which the majority of the Commission did not consider to be violated .

In its memorial of CARDINALnd DATE and at the hearing held on DATE , the ORG requested the ORG :

" to decide whether or not , in the course of the proceedings before ORG in the GPE case on DATE , there was a violation of Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW , insofar as this provision requires a fair trial , by reason of the participation of the representative of ORG department in the deliberations of ORG " .

The Government does not dispute that a member of ORG department at ORG , after submitting in open court that the Applicant ’s appeals should be refused , was present in a consultative capacity at the deliberations of DATE , but maintains that this did not involve any violation of the right guaranteed by LAW CARDINAL ( article CARDINAL ) of the Convention .

That highest court in GPE does not deal with the merits of cases ( Article CARDINAL of the LAW and LAW of DATE ) . In spite of its judicial nature , which has been developed through a long evolution , ORG fulfils a function which has never ceased to have some relation with the work of the legislature . Established in the interests of the law itself , ORG judges judgments and not persons , save in certain exceptional matters which are irrelevant to the present case . It is not therefore the function of that ORG to decide disputes concerning civil rights and obligations or to determine criminal charges ( décider , soit des contestations sur ses droits et obligations de caractère civil , soit du bien - fondé de toute accusation en matière pénale ) within the meaning of Article CARDINAL para . CARDINAL ( article CARDINAL ) , as that provision has been interpreted in a series of decisions by the bodies set up to ensure the observance of the Convention .

As regards the Procureur général ’s department at ORG , it must be distinguished fundamentally from the ORG department attached to the courts below . As a general rule , it has not the character of a party ( LAW DATE ) ; in the very rare cases where under the relevant law the department assumes the position of a party and institutes prosecutions the Procureur général is not present at the deliberations ( Article CARDINAL of the Decree of DATE ) . As the Procureur général is not concerned with the question of the guilt of the accused , he is neither their adversary nor the tool of the prosecution . For example , there is nothing to prevent him from submitting to the ORG that an appeal in cassation brought by ORG department at ORG should be dismissed or from putting forward on his own initiative grounds for setting aside a conviction ; and there are statistics to show that this is often the case . The ORG department attached to ORG is not , therefore , in alliance with the ORG department attached to the courts below ; besides , the ORG général at ORG exercises , in practice , over that department supervision of a purely doctrinal and scientific nature without the least power of direction ( LAW of DATE ) . Furthermore , the ORG général at ORG is entirely independent in his relations with the Minister of Justice .

In short , the role of the Procureur général is of the same kind as the functions of ORG itself : it consists , ordinarily , in no more than giving technical and objective assistance to the ORG in order to ensure the observance of the law , consistency in judicial precedent and good drafting of the judgments . To sum up , the ORG général attached to ORG " forms part of , and is identified with " , the ORG like the judges . In these circumstances , the presence of CARDINAL of the members of ORG department at the deliberations did not upset the " equality of arms " to the detriment of the Applicant . There was some inequality in this case but it worked to the advantage of GPE ; unlike him , the ORG departments attached to the lower courts whose decisions were challenged in cassation did not have an opportunity to put forward their arguments in open court on DATE ( LAW ) ; those departments did not even avail themselves of their right to reply in writing to the memorial filed by the appellant on DATE . In the ORG ’s view , the GPE case can not be compared with the PERSON and GPE cases ; the present case is closer to the PERSON and NORP cases in which ORG and ORG did not find any violation of LAW ) .

For the rest , the legislation in dispute is DATE , in which time it has never been subjected to criticism in GPE by writers or the Bar who are , however , most attentive to everything which relates to the rights of the defence . On CARDINAL occasions , ORG decided explicitly to maintain this legislation , the first time without any change ( at the time of the passing of the Act of DATE ) , the second time in substance and after examination of the question from the point of view of LAW ) . These circumstances raise something like a presumption in favour of the compatibility of the legislation in question with Article CARDINAL para . CARDINAL ( article CARDINAL ) ; they also show that the participation of ORG department at the deliberations of ORG does not open the door to abuse .

As to GPE ’s " new " complaints , they are inadmissible because they were not included in the original ORG . The Government considers that they are in any event unsustainable ; in its view , it is just because ORG department is not a party that its submissions are made at the end of the oral proceedings without being communicated in advance to the parties .

In its memorial of DATE and at the oral hearing held on DATE , the ORG asked the ORG :

" to hold that , having regard to the role which NORP law confers on the Procureur général attached to ORG and to his special position in NORP judicial procedure , his presence in a non - voting capacity at the ORG ’s deliberations as expressly provided for in that legislation is not of such a nature as to violate the principle of ‘ equality of arms’ where , as in the present case , the Procureur général is not himself a party to the proceedings as applicant ;

to decide in consequence that , in the proceedings which took place in the GPE case before ORG on DATE , there was no violation of Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW by reason of the presence of the representative of ORG department , Mr. PERSON , PERSON général , at the deliberations of the judges " .


The applicant , PERSON , is a NORP national , who was born in DATE and lives in the village of GPE of LOC . ORG ( “ the Government ” ) were represented by PERSON , Representative of GPE at ORG .

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

The applicant is a retired serviceman . On unspecified dates in the past , he had taken part in peace - keeping operations in former GPE and GPE .

On unspecified dates , the applicant instituted CARDINAL sets of proceedings against military unit no . DATE , seeking to recover the unpaid DATE allowances owed to him for his participation in the above operations .

In the proceedings before ORG of FAC ( ORG гарнизонный военный суд ) the representative of the military unit fully accepted both the applicant ’s claims . He submitted that it was impossible to pay the sums owed to the applicant , since there was no mechanism developed for payment of DATE allowances to servicemen who had been commissioned abroad . Furthermore , no funds were available for this purpose .

On DATE ORG of FAC granted the applicant ’s first claim and ordered the defendant to pay him MONEY ( “ RUR ” , MONEY at the material time ) . The court found that the applicant could not be deprived of the right to receive the sums owed to him because of the absence of an appropriate mechanism of payment . No appeal was lodged and this judgment became final on DATE .

On DATE ORG of FAC granted the applicant ’s second claim and ordered the defendant to pay him ORG ( MONEY at the material time ) . The court came to the same finding as above . No appeal was lodged and this judgment became final on DATE .

On DATE ORG issued CARDINAL execution writs .

On an unspecified date , the applicant submitted the execution writs to ORG of ORG . He was advised to apply to ORG for the latter to recover the amount due from ORG .

On DATE the applicant forwarded the execution writs to ORG .

According to the ORG , the ORG acted under the procedure set out in Decree No . CARDINAL and notified ORG about the applicant ’s claims , requesting it to pay .

By payment order no . CARDINAL of DATE the applicant received the outstanding amount of ORG in full .

Section CARDINAL of LAW of DATE provides that a bailiff ’s order on the institution of enforcement proceedings must fix a time - limit for the defendant ’s voluntary compliance with a writ of execution . The time - limit may not exceed DATE . The bailiff must also warn the defendant that a coercive action will follow , should the defendant fail to comply with the time - limit .

Under LAW of the LAW , the enforcement proceedings should be completed within DATE upon receipt of the writ of enforcement by the bailiff .

Under special rules governing enforcement of execution writs against the recipients of allocations from the federal budget , adopted by ORG on DATE ( Decree No . CARDINAL , as in force at the relevant time ) , a creditor is to apply to a relevant branch of ORG holding debtor ’s accounts or , in certain cases , to ORG ( Sections CARDINAL to CARDINAL ) .

Within DATE the branch examines the application and notifies the debtor of the writ , compelling the latter to abide by the respective court decisions ( Sections CARDINAL to CARDINAL ) . In case of the debtor ’s failure to comply within DATE , the branch may temporarily freeze the debtor ’s accounts ( see LAW ) .


CASE OF THE UNITED MACEDONIAN ORGANISATION ILINDEN AND OTHERS v. BULGARIA

Violation of Art. 11;Not necessary to examine Arts. 6-1 and 14;Costs and expenses partial award - domestic and Convention proceedings

Ilinden is an association based in southwest GPE , in an area known as the GPE region or the geographic region of LOC .

Ilinden was founded on DATE . Its aims , according to its articles of association and programme , were to “ unite all NORP in GPE on a regional and cultural basis ” and to achieve “ the recognition of the NORP minority in GPE ” . Clauses CARDINAL and CARDINAL of the articles stated that the organisation would not infringe the territorial integrity of GPE and “ would not use violent , brutal , inhuman or unlawful means ” .

In DATE PERSON applied for , but was refused , registration . In the proceedings for registration , ORG and ORG examined its articles of association , its programme and other written evidence .

In their decisions of DATE and DATE and DATE the courts found that ORG aims were directed against the unity of the nation , that it advocated national and ethnic hatred and that it was dangerous for the territorial integrity of GPE . Therefore , its registration would have been contrary to ORG , DATE and QUANTITY of the LAW of DATE , as in force at the time . In particular , the aims of the association included the “ political development of GPE ” and the “ united , independent NORP State ” . Moreover , in its appeal to ORG , the association had stated that “ the NORP people [ would ] not accept NORP , NORP or NORP rule ” . The formal declaration in its articles of association that it would not imperil the territorial integrity of GPE appeared inconsistent with the remaining material .

The judgment of ORG of DATE stated , inter alia :

“ [ T]he lower courts have correctly established that the aims of [ Ilinden ] under its articles of association and programme were directed against the unity of the nation ... [ The material in the case ] demonstrates that [ Ilinden ] seeks to disseminate the ideas of ORG among the NORP population , especially in a particular geographical area . [ Those ideas ] presuppose the ‘ GPE of the NORP population and its conversion into a NORP population ... It follows that [ Ilinden ] is directed against the unity of the nation and is therefore prohibited under LAW of the [ DATE ] LAW ... ”

NORP Throughout the period CARDINAL PERSON tried to organise commemorations of historical events DATE on certain dates in DATE , DATE and DATE , on various sites in GPE . Almost all of the commemoration gatherings were banned by the authorities , often on the basis of the organisation not been registered . In some instances the courts refused to examine appeals against such bans on the same ground ( for the period DATE see PERSON and ORG v. GPE , ORG CARDINAL and CARDINAL , § § DATE , DATE , and CARDINAL , ORG CARDINALIX ; for the period DATE see ORG and PERSON v. GPE , no . CARDINAL/CARDINAL , § § CARDINAL , DATE ) .

On DATE the applicants , together with CARDINAL , CARDINAL or QUANTITY other persons , held a meeting in GPE . There are CARDINAL versions of TIME of this meeting . The first CARDINAL states that QUANTITY persons adopted a resolution to reapply for registration of GPE . The second CARDINAL states that QUANTITY persons decided to found a nonprofitmaking association named ORG . Both versions state that the persons present adopted the articles and elected the management committee and the chairman of the association .

The relevant clauses of the articles of association of ORG adopted at that meeting read :

“ CARDINAL . [ Ilinden ] is a national NORP organisation , on ethnical basis and origin ... which is the successor and continuer of the national liberation struggle of the NORP nation ... and of the NORP fighters who have fallen victim to the NORP State terrorism and genocide .

CARDINAL(CARDINAL ) . Ilinden recognises and respects the territorial integrity of GPE and its laws and LAW , provided they are consistent with the international law and the international agreements on human rights , fundamental freedoms and the rights of minorities .

CARDINAL ) . [ Ilinden ] supports the international law [ rules providing that ] borders between countries may be altered peacefully through negotiations .

NORP The goals and objects of [ Ilinden ] ... [ are ] to express and defend the civil , political , national , social , and economic rights of NORP living on NORP land under NORP occupation ( jurisdiction ) and of the NORP living in GPE .

CARDINAL ) . [ Ilinden ] will protect the NORP subjected to assimilation by the NORP nationalistic policies .

CARDINAL(CARDINAL ) . [ Ilinden will seek the r]ecognition of a status of cultural autonomy of LOC [ in order to ] halt the process of assimilation of the NORP .

CARDINAL(CARDINAL ) . [ and the g]iving of autocephalous status of the NORP church in GPE with a view to cutting off the assimilation activities of the NORP priests .

[ Ilinden ] will strive towards ... liberating the NORP from the feelings of fear of the discrimination and assimilation policies of the [ NORP State ] .

CARDINAL(CARDINAL ) . [ The means employed by ORG for achieving its goals shall be ] ... the holding of peaceful assemblies , meetings , marches and demonstrations ...

CARDINAL ) . Participation in elections through nomination of independent NORP candidates .

CARDINAL(CARDINAL ) . Every NORP , as well as a citizen of another ethnicity , may become a member of the organisation . ”

On DATE the applicants lodged an application for the registration of Ilinden with ORG . They submitted to the court a copy of the first version of TIME of the DATE meeting ( see paragraph CARDINAL above ) . Finding that CARDINAL member of the management committee had not signed the application for registration and that the filed copy of the articles of association had not been signed either , the court invited the applicants to submit duly signed copies of the application and the articles . On DATE one of the applicants filed a signed application and an unsigned copy of the articles . The court also instructed the applicants to produce a copy of the resolution for the founding of Ilinden . On DATE an unsigned copy of the second version of TIME DATE meeting ( see paragraph CARDINAL above ) , containing a resolution for the founding of GPE and the names of CARDINAL purported founders , was filed with the court . A hearing was held on DATE . On DATE a copy of the second version of TIME ( see paragraph CARDINAL above ) , signed by QUANTITY persons , was filed with the court . At a hearing held on DATE the applicants stated that this second version had been drafted by an attorney and had been signed by the founders before the first hearing on DATE . The court admitted the document in evidence .

The Blagoevgrad Regional Court gave judgment on DATE . It rejected the application in the following terms :

“ By DATE ) of ORG [ of DATE ] , the application for registration of a nonprofitmaking association must be accompanied by a resolution for its founding [ and ] its articles of association , signed by the founders ...

In their application for registration the members of the management committee state that in DATE the organisation was denied registration ... , which may lead to the conclusion that the resolution for the founding of ORG was adopted ... at the latest in DATE . This conclusion is supported by the first version of TIME . This version states that at a meeting held on DATE in GPE , with CARDINAL persons present , the question of the reregistration of GPE was discussed ...

In a letter of DATE the court instructed the applicants to present a resolution for the founding of the association . Following this instruction the applicants submitted unsigned minutes dated DATE , which reflect a different agenda and different decisions . These new minutes contain an express resolution for the founding of GPE , for the adoption of its articles of association and the electing of a management committee . The heading of TIME indicates that QUANTITY persons were founders . An additional , signed version of these TIME bears the signatures of QUANTITY persons . CARDINAL of the alleged founders ... have not signed the minutes of DATE , while the CARDINAL state that the resolution for the founding of the association was adopted by unanimity . However , these persons have signed the [ first version of the minutes ] , which contain the resolution to re - register PERSON . [ During the hearing ] on DATE the members of the management committee averred that there had only been CARDINAL meeting , [ which took place ] on DATE . In view of these circumstances , the court considers that it has not been categorically established that a resolution for the founding of ORG was adopted on DATE . It is unclear who the founders were , because there are CARDINAL versions of TIME , signed by different persons and having different contents . Thus , CARDINAL of the absolute prerequisites of section CARDINAL ) of the [ Persons and Family Act of DATE ] – a resolution for the founding the association DATE is missing .

The second mandatory attachment to the application for registration – articles of association signed by DATE is likewise missing .

When the applicants first applied for registration on DATE ... , they were instructed to submit articles of association signed by the founders . This instruction has not been complied with . The articles ... dated DATE are not signed . Alongside the articles the applicants have submitted a separate sheet , stating : ‘ The articles of association of Ilinden were discussed and adopted at the founding meeting on CARDINAL DATE CARDINAL’ . Only the signatures of the members of the management committee follow . The presentation of articles of association signed by the founders is an absolute prerequisite for [ registration ] . On this ground alone DATE the failure to comply with the requirements of section CARDINAL ) of the [ Persons and Family Act of DATE ] – the registration of [ Ilinden ] must be refused .

The court considers it necessary to note that , alongside the above - mentioned [ reasons to refuse registration ] , there are a number of serious discrepancies between the submitted articles of association and the laws of [ GPE ] , which render the registration inadmissible .

In clause CARDINAL of its articles of association [ Ilinden ] defines itself as a ‘ NORP national organisation on ethnical basis and origin ... which is the successor and continuer of the national liberation struggle of the NORP nation ... and of the NORP fighters who have fallen victim to the NORP State terrorism and PERSON .

This text clearly shows that the association considers itself a ‘ ORG and continuer of ... the ‘ national liberation struggle of the NORP nation’ ... The evoking of historical events in which the NORP people fought for the protection of its national interests [ and ] for the restoration of ORG is puzzling in the context of an activity which is to be carried out against this same ORG . It is not clear how an association may be a ‘ ORG of ‘ fighters fallen victim’ but probably the applicants wanted to underscore that they intend to lead a ‘ national liberation struggle’ on the territory of GPE through uprisings , which process is expected to lead to victims . Read this way , clause CARDINAL of the articles raises serious doubts as to the peaceful means for the achievement of the goals of the association declared in clause CARDINAL . Clause CARDINAL ) of the articles recognises the territorial integrity of the country , its laws and LAW , but under a condition : ‘ if they are consistent with the international law and the international agreements on human rights , fundamental freedoms and the rights of GPE . The reservations relating to respect for the territorial integrity of the country continue in clause CARDINAL ) of the articles , which introduces the concept of modification of the borders through ‘ negotiations’ . The association ’s goal DATE to achieve a modification of the borders of GPE through taking of territory away – is clearly spelled out in clause CARDINAL of the articles , which indicates that [ Ilinden ] ‘ expresses and defends the civil , political , national and social and economic rights of NORP living on NORP land under NORP occupation ( jurisdiction ) and of the NORP living in ORG . The use of the term ‘ occupation’ indicates that , according to the applicants , GPE includes forcibly annexed ‘ ORG lands , for the liberation of which they will lead a ‘ national liberation struggle’ . This idea is underscored in several other provisions of the articles . Thus , clause CARDINAL speaks of protection against NORP ‘ ORG through cultural autonomy of GPE , which takes as a given that the population there is not NORP , clause CARDINAL [ speaks of ] ‘ taking the NORP out’ of the state of [ being subjected to ] ‘ discrimination and ORG by ORG .

Clause CARDINAL of the articles indicates that the association will organise peaceful assemblies , meetings , marches and demonstrations with demands for political rights , and that it will participate in elections through the nomination of candidates . Therefore , even though it claims to be a non - profitmaking association , PERSON proclaims that it will carry out a political activity within the meaning of LAW of LAW [ of DATE ] and section CARDINAL(CARDINAL ) of LAW [ of DATE ] .

LAW [ of DATE ] provides that associations may not pursue political goals and carry out political activities that are characteristic solely of political parties . This prohibition is developed in section CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW [ of DATE ] . An association which pursues political goals such as those clearly designated by the applicants here may not be registered [ as such ] .

Apart from the political character of the goals and of the future activity [ of the association ] , the aforesaid leads to the conclusion that [ Ilinden ] is an organisation directed against the sovereignty , the territorial integrity and the unity of the nation and towards the incitement of national hatred , and is not categorically excluding the use of violence .

Clauses CARDINAL , CARDINAL , DATE , DATE , and CARDINAL of the articles of the association contain suggestions [ that there exists ] a NORP ethnos [ constituting a ] minority and deprived of the rights that the LAW [ of DATE ] bestows upon all NORP citizens .

There is no NORP minority in GPE . There are no historical , religious , linguistic , or ethnical grounds for such an assertion . [ Such an assertion ] , coupled with the declarations alleging ‘ assimilation , discrimination and xenophobia’ in respect of the ‘ Macedonians’ , is in reality directed against the unity of the nation . Every organisation committed to such a political platform is prohibited by virtue of Article CARDINAL § QUANTITY of the LAW [ of DATE ] . ... ”

NORP The management committee of GPE appealed to ORG . They argued that ORG had deliberately misconstrued the articles of association . ORG had no political goals and had never intended to dispute the territorial integrity and the sovereignty of GPE , nor to incite violence or ethnic hatred . The court had refused registration because of its mistaken finding that the articles insinuated the existence of a NORP ethnos having a minority character . Also , as there had apparently been doubt about technical problems with the registration documents , the management committee submitted a fresh copy of TIME of the association ’s founding meeting . It also submitted a list of signatures of the founders of ORG who were not members of the management committee , apparently with the purpose of remedying the deficiency noted by ORG – that the articles of association bore the signatures of the members of the management committee only , not of all founders .

The Sofia Court of Appeals dismissed the appeal in a judgment of CARDINAL DATE . The relevant part of its opinion read :

“ ... this court finds that the prerequisites for entering [ Ilinden ] in the register of nonprofitmaking legal persons are missing . The first irregularity of the association is that the submitted articles are not signed by the founders , as required by section CARDINAL of the Persons and Family Act [ of DATE ] . Furthermore , the articles contain a number of clauses which do not allow the registration of the association . Clause CARDINAL indicates that [ Ilinden ] shall be ‘ a NORP national organisation [ based ] on ethnicity and origin’ , and clause CARDINAL provides that ‘ only a ORG may be a member of the organisation ; such type of association is inadmissible and contrary to LAW [ of DATE ] , which prohibits privileges based on ‘ nationality , ethnicity , origin’ ...

In clause CARDINAL of its articles the association sets itself political goals , which it may pursue only if registered [ as a political party ] . The formulated aims , such as ‘ participation in elections’ [ and ] the holding of ‘ meetings , marches and ORG run also against LAW [ of DATE ] , which does not allow associations to perform political activities . The legal definition of the term ‘ political activity’ set out in section CARDINAL(CARDINAL ) of LAW [ of DATE ] indicates that it comprises precisely the holding of meetings , demonstrations , assemblies and other forms of public campaigning .

Clause CARDINAL of the articles provides that the association will carry out activities that are characteristic of a denomination ... : ‘ struggling to achieve an autocephalous status of the NORP church and cutting off the assimilation activities of ORG [ ; such activities ] may be carried out only by nonprofitmaking organisations registered under section ORG of ORG [ of DATE ] and LAW [ of DATE ] .

The proposition of the applicants is that the association should be registered because its articles do not set forth political aims and the association is not established on an ethnical or a national basis . These assertions are unfounded . On the one hand , the submitted articles of association have not been signed by the founders , which precludes the possibility of registration ... On the other hand , the activities the articles envisage ... may not be carried out by such a type of association . This indicates that the irregularities in the founding of the association may not be rectified through the additional presentation of evidence ; the registration is therefore impossible . ”

NORP The management committee of GPE appealed on points of law to ORG . They argued that ORG had erred in holding that the formation of an association could lead to discrimination . On the contrary , it was the exercise of a fundamental right . Also , ORG did not pursue any of the activities proscribed by LAW . As regarded the alleged political goals and activities of the association , they submitted that ORG had misconstrued the term “ political activity ” : the holding of meetings and marches was not the prerogative of political parties – they could be organised by any organisation or person . The statement of the court that the meaning of clause CARDINAL of its articles of association was that ORG intended to engage in religious activities was tendentious and untrue . In addition , the applicants complained that ORG had repeated the conclusion of ORG that they had not submitted a duly signed copy of the articles of association , apparently disregarding the fresh documents they had presented together with their appeal from the latter ’s judgment .

ORG gave judgment on DATE . It dismissed the appeal in the following terms :

“ ... The appeal is illfounded .

The [ PERSON ] ORG found that the submitted articles of association have not been signed by the founders , as mandated by the imperative rule of section CARDINAL of the [ Persons and Family Act of DATE ] . Secondly , the articles contain a number of clauses precluding the registration of the association . Clauses CARDINAL and CARDINAL contravene LAW [ of DATE ] , clause CARDINAL [ contravenes ] LAW [ of DATE ] in conjunction with LAW ) of the [ LAW of DATE ] , [ and ] clause CARDINAL [ runs counter to ] section ORG of the [ Persons and Family Act of DATE ] .

The judgment of the [ GPE ] ORG is correct . The finding that the legal requirements for the registration of the association have not been met corresponds to the documents in the case file and more specifically to the articles of association [ of ORG ] .

An association is registered pursuant to an application by its management committee which must be accompanied by a resolution for its founding and its articles , signed by the founders . This means a signed copy of the articles and not separate lists and TIME . [ In addition , ] LAW [ of DATE ] does not allow privileges on the basis of nationality , ethnicity , origin , etc . By LAW [ of DATE ] , associations may not pursue political goals and carry out political activities characteristic solely of political parties . Account should also be taken of LAW of the [ LAW of DATE ] . ”

On DATE Ilinden lodged another application for registration with ORG . In a judgment of DATE the court refused to register the association . Its opinion read , as relevant :

“ The evidence ... indicates ... that the activities of the organisation which seeks registration are directed against the sovereignty and the territorial integrity of the country and the unity of the nation . This is apparent from the main goals of the association ... and the means for their achievement ...

The way they are formulated ... indicate[s ] their political character . ... The organisation states that it is a successor and continuer of the ‘ national liberation struggle of the NORP nation’ , including the ‘ NORP fighters who have fallen victim to the NORP State terrorism and GPE Its articles of association ] specify that [ the organisation ] will respect the territorial integrity of GPE , but only if ‘ [ it is ] consistent with the international law and the international agreements on human rights , fundamental freedoms and the rights of GPE ; [ that the organisation ] will ‘ voice and protect the civil , social and economic rights of the NORP who live on NORP soil under NORP occupation ( jurisdiction ) and of the NORP who live in GPE The articles also ] insist that ‘ the process of assimilation in LOC must be stopped’ . Obviously , the aim is to distort the historical truth and to ignore the NORP character of certain geographical regions [ and ] to cause overt opposition of CARDINAL part of the population to another . This also threatens the territorial integrity of the country , while Article CARDINAL § CARDINAL of the LAW [ of DATE ] prohibits organisations engaging in such an activity .

Even if , despite [ what was found ] above , it is assumed that the activities of [ Ilinden ] do not run counter to LAW [ of DATE ] , by LAW thereof associations may not pursue political goals and carry out political activities that are characteristic solely of political parties . The political character of the aims [ of GPE ] is clearly indicated by [ its articles of association ] , while the [ applicable law ] provides that organisations seeking to engage in political , trade union or religious activities shall be regulated in a separate statute .

All this leads to the conclusion that what is sought is the registration of an association whose aims are illegal . It can not be accepted that what is at issue is an organisation seeking to preserve the historical traditions and the cultural riches of a specific community . ... The realisation of the true aims [ of ORG ] would no doubt be at the expense of the unity of the NORP nation [ and ] the sovereignty and the territorial integrity [ of the country ] , which is declared inviolable by LAW [ of DATE ] . ”

Ilinden ’s ensuing appeal was dismissed by ORG in a judgment of DATE . The court held that the aims of ORG were political , which was impermissible for a nonprofitmaking association . It further held that the aims of ORG were directed towards a “ twisting of the historical truths and towards ignoring the NORP character of certain geographical regions , with a view to causing overt opposition of CARDINAL part of the NORP citizens against another , which imperil[ed ] the territorial integrity of the country and the unity of the nation , in breach of the imperative rule of LAW [ of DATE ] ” . Finally , the court held that there had been an irregularity in the number of elected members of the association ’s management committee .

Ilinden ’s appeal on points of law to ORG was likewise dismissed , in a final judgment of CARDINAL DATE . The court held that ORG ’s activity , which would include protecting the ‘ civil , social and economic rights of the NORP living on NORP soil and of the NORP living in ORG ran counter to LAW . Even assuming that this was not the case , registration was impossible , because ORG aims were in reality political , as indicated by its declarations that it was a continuer of the “ national liberation struggle of the NORP nation ” and that its founders were “ spiritual successors of ‘ the NORP fighters which had fallen victim of the NORP state terrorism and PERSON ” , which was impermissible for a nonprofitmaking association . Finally , the court endorsed ORG finding that there had been an irregularity in the number of elected members of the management committee .

The relevant provisions of the LAW of DATE read as follows :

“ The territorial integrity of GPE shall be inviolable . ”

“ All citizens shall be equal before the law . There shall be no privileges or restriction of rights on the grounds of race , nationality , ethnicity , sex , origin , religion , education , opinion , political affiliation , personal or social status , or property status . ”

“ Parties shall facilitate the formation of the ORG political will ... ”

“ Associations ... may not pursue political goals or carry out political activities that are characteristic solely of political parties . ”

“ Everyone shall have the right to peaceful and unarmed assembly at meetings and marches . ”

“ CARDINAL . Citizens may freely associate .

Organisations whose activities are directed against the sovereignty [ or ] the territorial integrity of the country and the unity of the nation , towards the incitement of racial , national , ethnical or religious enmity ... as well as organisations which seek to achieve their goals through violence are prohibited .

The law shall specify the organisations which are subject to registration , the manner of their dissolution , as well as their relations with the ORG . ”

At the material time this LAW , the relevant provisions of which were subsequently superseded by LAW ( see paragraph CARDINAL below ) and some other statutes , regulated the formation , status and dissolution of nonprofitmaking legal persons . Its pertinent provisions were :

“ GPE legal entities carrying out an activity characteristic of a denomination or performing a religious or a religious educational activity shall be registered ... after assent being given by ORG . ”

“ An association shall acquire legal personality after its entry in the register [ kept by ] ORG . ”

“ An association shall be registered pursuant to an application by [ its ] management committee [ to which shall be enclosed ] a resolution for its founding and its articles of association , signed by the founders ... ”

“ Associations shall be managed in accordance with [ their ] articles of association , which must contain provisions in respect of [ their ] name , goals , means ... ”

“ ... An association may be dissolved by decision of ORG if ... its functioning is contrary to law , its articles or the state and public order ... ”

This act , which was superseded by new legislation in DATE , regulated the formation , registration , functioning and dissolution of political parties . Its relevant provisions read as follows :

“ CARDINAL . A public organisation which has not been registered as a political party may not carry out the activity of a political party .

A [ public organisation ] which has not been registered as a political party may not carry out organised political activities [ on the LOC of ] enterprises , government agencies and organisations .

NORP ’Organised political activities’ shall mean the holding of meetings , demonstrations , assemblies and other forms of campaigning in favour of or against a political party or an election candidate .

NORP If a public organisation ... clearly carries out the activity of a political party , the regional prosecutor shall offer that it be dissolved or register as a political party within DATE .

ORG If the organisation under the foregoing subsection does not cease its political activity or register as a political party , it shall be dissolved ... ”

The relevant provisions of this LAW read as follows :

“ Meetings , rallies and marches may be organised by individuals , associations , political or other civic organisations . ”

NORP Under DATE ) of this LAW , which came into force on DATE and at present regulates , inter alia , nonprofitmaking associations , the competent regional court may dissolve any association which carries out an activity which is contrary to the law , the public order or morality . By DATE ) of the LAW , the court may act pursuant to the request of any interested person or the public prosecutor .


The applicants are Mr PERSON and his wife PERSON , both NORP nationals and born respectively in DATE and DATE , and also their CARDINAL children ( born in DATE indicated in brackets ) , who are NORP nationals : PERSON ( DATE ) , PERSON ( DATE ) , PERSON ( DATE ) , PERSON ( DATE ) and PERSON ( DATE ) . The first applicant lives in GPE , GPE , and the other applicants live in PERSON , near GPE , GPE . They are represented before the ORG by Mr PERSON , a lawyer practising in GPE .

The facts of the case , as described mainly in the judgments of the national courts , may be summarised as follows .

As his parents were very poor , the first applicant PERSON was cared for by his uncle as his foster father . His uncle arrived in GPE in DATE and declared the first applicant as his son . In DATE , at DATE and after having completed DATE in GPE during which he was taught in oral and written GPE , the latter arrived in GPE . His foster father wished the first applicant to take part in the maintenance of the family in GPE . He was granted a permanent residence permit . In the DATE of DATE he started at a NORP school and completed primary and secondary school in DATE , following which , he took a basic high school course in engineering and mechanics . In DATE he started work and , except for a short break in DATE , he was continuously in stable employment with a relatively good income until DATE , when he was arrested for narcotics offences .

The first applicant had visited GPE in DATE together with his foster father . He had again visited the country in DATE , in connection with his marriage , in DATE and in DATE . Each visit had lasted DATE . His wife arrived in DATE and they had their first child DATE . The first applicant ’s wife acquired NORP citizenship in DATE , but he never sought to obtain this himself as he had never felt particularly concerned by the question of citizenship .

On DATE the Eidsivating High Court ( lagmannsrett ) convicted the first applicant under LAW ) , cf . LAW for having assisted in the sale of QUANTITY of heroin and for having sold drugs , probably heroin , for approximately ORG CARDINAL . It sentenced him to DATE and DATE imprisonment . He had no previous convictions in GPE . ORG found it established that the applicant had contacted his co - accused , ORG , a NORP national , to inquire whether he would be interested in marketing heroin in or around PERSON , a small district town in another part of the country . Following an affirmative answer by T. , it was agreed that the latter should go to GPE to collect the heroin . On the agreed date and at the agreed place , T. was contacted by PERSON , also a NORP national , who offered PERSON grams of heroin on the applicant ’s behalf , which T. took to GPE . During the police investigations , the police , with ORG 's co - operation , recorded a telephone conversation between him and the applicant concerning payment for the heroin . Moreover , the police provided T. with ORG CARDINAL,CARDINAL in marked bank notes . On arresting the first applicant and PERSON , the police found NOK CARDINAL of the marked notes in the first applicant 's wallet and CARDINAL in a flat occupied by A. A further ORG CARDINAL were found in the house of the first applicant 's foster father which , it was established , were proceeds from the first applicant 's sale of drugs , mainly heroin .

While the first applicant served his sentence , his children visited him in prison for TIME and TIME DATE . After having served a third of the sentence , he was permitted to visit his family at home . He was released on probation in MarchApril DATE .

On DATE ORG ( PERSON ) ordered the first applicant ’s expulsion under the relevant provisions of LAW DATE ( GPE of DATE No . CARDINAL ) . On appeal by the first applicant ORG upheld the decision on DATE , finding that the expulsion would not constitute a disproportionate measure against the first applicant . In reaching this conclusion , the Ministry attached decisive importance to the fact that he had been convicted of offences under , inter alia , Article CARDINAL of the Penal Code and had been sentenced to over DATE imprisonment . Regard was had to the fact that the trial court had found that the first applicant had attempted to sell a considerable quantity of heroin in a milieu which had not previously had problems with this drug and that his actions had been motivated exclusively by the desire for financial gain . The trial court had found it necessary , in view of general considerations of crime prevention , to react strongly against such conduct . Moreover , having regard to the particularly serious nature of the criminal offence in question , ORG did not find that the expulsion would amount to a disproportionate measure vis - à - vis the first applicant 's closest family members .

The first applicant subsequently instituted proceedings before ORG , which in a judgment of DATE upheld the decision of ORG , following which the expulsion order was put into effect in DATE . At the time his wife was pregnant and very depressed .

After his return to GPE he lived in a house belonging to his foster father and was unemployed . His eldest child visited him for DATE in DATE and his wife and all his children visited him for DATE .

The applicants submitted , and adduced certain medical statements in support thereof , that the children suffered from asthma and allergies , and that the wife had suffered physically and psychologically as a result of her husband 's separation from the family .

An appeal by the first applicant to ORG was rejected by judgment of CARDINAL DATE . The applicant then lodged an appeal with ORG ( PERSON ) , which in a judgment of DATE rejected the appeal .

In his opinion , Mr Justice Skåre , on behalf of a unanimous court , recalled , inter alia , ORG finding that the second applicant and her children had to a slight degree been integrated into NORP society . They spoke GPE at home and the oldest children had great difficulties with the NORP language at school and in the kindergarten . During the hearing the spouse showed that she had not mastered NORP . As regards the merits of the case , Justice PERSON stated , inter alia :

“ … Like the criminal cases which form the basis for the expulsion orders at issue in appeal cases nos . CARDINAL/CARDINAL and CARDINAL/CARDINAL , there is no question in this case of such a significant amount of heroin as to warrant the application of Article CARDINAL ( CARDINAL ) of LAW . Nevertheless , it concerns CARDINAL narcotics offences which , according to the nature and quantity of the drugs call for a very severe sentence . ... .

In the assessment it is also important to note that PERSON has resided in GPE for a long period and that he arrived here quite young . However , he has maintained his links with the NORP milieu , and his links to GPE are not as CARDINAL - sided as one may find in certain cases of more typical secondgeneration immigrants . Also his spouse and children appear to have links to the NORP culture and milieu .

I have therefore reached the conclusion that the expulsion order can not be regarded as incompatible with LAW . The appeal must be rejected . ... ”


CASE OF YURIY NIKOLAYEVICH IVANOV v. UKRAINE

Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Respondent State to take measures of a general character (Article 46 - Pilot judgment;General measures);Respondent State to take individual measures (Article 46 - Pilot judgment;Individual measures);Non-pecuniary damage - award

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

NORP In DATE the applicant retired from ORG . He was entitled to a lump - sum retirement payment and compensation for his uniform , but the payments were not made to him on his retirement .

In DATE the applicant instituted proceedings in the ORG against ORG , seeking recovery of the debt . On DATE the court allowed his claim in full and ordered the military unit to pay the applicant CARDINAL NORP hryvnias ( ORG ) in compensation for his uniform , ORG CARDINAL in retirement payment arrears , and ORG DATE by way of reimbursement for the court fees . On DATE the court ’s judgment became final and enforceable .

On an unspecified date the applicant received ORG CARDINAL,CARDINAL.CARDINAL . The remainder of the award remained unpaid .

The enforcement proceedings concerning the judgment of CARDINAL DATE commenced on DATE . In the course of those proceedings the bailiffs informed the applicant that they had frozen the debtor ’s bank accounts , though no funds had been found in those accounts .

NORP In a letter of CARDINAL DATE ORG informed the applicant that the legislative provisions entitling him to compensation for his uniform were suspended and that there were no budgetary allocations for such payments .

On DATE the debtor military unit was disbanded and ORG A-CARDINAL became its successor .

In a letter of DATE the bailiffs informed the applicant that the latter military unit had no money to pay the applicant in compliance with the judgment of CARDINAL DATE . They also mentioned that the forced sale of assets belonging to military units was prohibited by the law .

The judgment of CARDINAL DATE remains partially unenforced .

In DATE the applicant lodged with ORG ( “ the ORG ” ) a complaint against the bailiffs , alleging that the judgment of CARDINAL DATE had not been enforced because of fault on their part . On DATE the court found that the bailiffs had not taken the necessary measures to enforce the judgment in the applicant ’s favour and ordered them to identify and freeze the bank accounts of the debtor military unit in order to seize the money available in those accounts .

According to the applicant , the bailiffs did not comply with the court ’s ruling of DATE . On DATE he lodged a claim with the same court against the bailiffs , seeking compensation for pecuniary and non - pecuniary damage .

On DATE the applicant ’s claim was partly allowed . ORG found that the judgment of CARDINAL DATE remained unenforced through the fault of the bailiffs and awarded the applicant ORG CARDINAL in compensation for pecuniary damage and ORG CARDINAL for non - pecuniary damage . On CARDINAL DATE the judgment of CARDINAL DATE became final and enforceable . On DATE an appeal by the applicant against the judgment of CARDINAL DATE was dismissed as having been lodged out of time .

On DATE the applicant submitted a written request to ORG to issue a writ of execution in respect of the judgment of CARDINAL DATE . The applicant did not receive the writ or a reply to his request . The judgment of CARDINAL DATE remains unenforced .

NORP Throughout the proceedings against the bailiffs , the applicant was assisted and represented by a lawyer .

According to the applicant ’s lawyer , in order to substantiate the application in the present case he had tried to obtain some unspecified documents from the applicant ’s case file kept by ORG . On DATE he requested that court to send him all the documents from the case file , without specifying that he needed them for the applicant ’s case before ORG .

In a letter of CARDINAL DATE ORG informed the lawyer that he had failed to provide a form of authority and thus could not obtain the documents requested .

The applicant ’s lawyer did not resubmit his request with an authority form .

Article CARDINAL of the LAW provides as follows :

“ ... Judicial decisions are adopted by the courts in the name of GPE and are mandatory for execution throughout the entire territory of GPE . ”

Article CARDINAL of the Code provides :

“ CARDINAL . Wilful failure of an official to comply with a sentence , judgment , ruling or resolution of a court which has entered into force , or hindrance of its enforcement ,

shall be punishable by a fine [ in the amount ] of CARDINAL times the statutory non - taxable DATE income , or by deprivation of liberty for a term of DATE with deprivation of the right to occupy certain positions or engage in certain activities for a term of DATE .

NORP The same actions committed by an official occupying a responsible or especially responsible position , or by a person previously convicted of the crime envisaged by this LAW , or [ the same actions ] causing substantial damage to the legally protected rights and freedoms of citizens , ORG or public interests or the interests of legal entities ,

shall be punishable by restraint of liberty for a term of DATE , or by deprivation of liberty for the same term with deprivation of the right to occupy certain positions or engage in certain activities for a term of DATE .

Wilful failure of an official to comply with a judgment of ORG

shall be punishable by deprivation of liberty for a term of DATE with deprivation of the right to occupy certain positions or engage in certain activities for a term of DATE . ”

The Act determines the procedure for forcible execution of decisions of courts and of other competent authorities and officials ( “ judgments ” ) .

Under LAW , the enforcement of judgments is entrusted to ORG , which forms part of ORG . Other entities and officials may also carry out enforcement in accordance with the law . In particular , pursuant to section CARDINAL , the bodies of ORG are responsible for the enforcement of judgments concerning recovery of money from the ORG or local budgets or entities financed from the ORG budget .

The Act confers a wide range of powers on bailiffs in enforcement proceedings . In particular , they are entitled to seek and obtain , from any person concerned , information and documents that are necessary for the enforcement of decisions , to enter and inspect premises belonging or occupied by debtors , to seize and sell ORG , to freeze DATE bank accounts , and to impose fines on citizens and officials in cases envisaged by the law ( sections CARDINAL of the Act ) . The bailiffs’ orders concerning the enforcement of judgments are binding on all entities , organisations , officials and common citizens in the territory of GPE . Pursuant to sections DATE of the LAW , the bailiffs are entitled to punish persons failing to comply with their orders by a fine amounting to CARDINAL times the statutory non - taxable DATE income . If the actions of the offenders fall within the ambit of the criminal law , the bailiffs are to request their prosecution .

Section CARDINAL of the LAW contains a list of documents on the basis of which bailiffs may proceed with forcible execution ( “ the enforcement documents ” ) . It includes , inter alia , writs of execution issued by courts , rulings and resolutions of courts in civil , commercial , administrative and criminal cases , judicial orders , and judgments of ORG . In order to initiate enforcement proceedings , the person in whose favour the judgment was delivered ( “ the creditor ” ) or a prosecutor who represented a citizen or the ORG in the court proceedings must submit to the bailiffs one of the documents specified in section CARDINAL together with a request for its enforcement ( section CARDINAL ) . The bailiffs have DATE to determine whether the request was made in compliance with the law and , if so , to start the enforcement proceedings , which must normally be completed within DATE ( sections CARDINAL ) . LAW obliges the bailiffs to suspend the enforcement proceedings in specific situations . Such suspension is compulsory if , for instance , a commercial court has started bankruptcy proceedings against the debtor and imposed a ban on payments in respect of LOC claims , or if the debtor is an enterprise included on the list of fuel and energy enterprises taking part in the procedure for recovery of debts pursuant to the LAW on measures designed to ensure the stable functioning of fuel and energy enterprises .

Under LAW , enforcement proceedings are to be discontinued in cases where , for example , the judgment has actually been enforced in full , the time allowed for a particular type of debt collection has expired , or the enforcement document has been transferred to the debtor ’s liquidator following official recognition of the debtor ’s insolvency . The bailiffs must return the enforcement document to the creditor if , for instance , the debtor does not have property which could be seized with a view to enforcing the judgment and the measures adopted by the bailiffs in order to discover such property have proved to be unsuccessful .

NORP Parties to enforcement proceedings or persons involved in them are entitled to challenge the bailiffs’ actions or inactivity before their superiors or courts and to claim damages ( sections CARDINAL and DATE ) .

By the transitional provisions of the LAW , the application of sections CARDINAL and DATE was suspended in respect of enterprises included on the list of fuel and energy enterprises taking part in the procedure for recovery of debts pursuant to the LAW on measures designed to ensure the stable functioning of fuel and energy enterprises .

Section CARDINAL of this LAW provides that damage caused by bailiffs in the course of execution of a judgment is to be compensated at the expense of the ORG in accordance with the procedure established by law .

Under LAW , a military unit , as an entity taking part in economic activities , is legally responsible for its failure to fulfil its contractual obligations and for damage caused to the environment and to the rights and interests of natural and legal persons and the ORG . The money allocated under the relevant provisions of its budget , excluding the money allocated in respect of protected items of the budget , may be used to fulfil the unit ’s obligations . If the amount of money available is insufficient , ORG becomes responsible for the unit ’s debts . No property allocated to the unit may be used for settlement of its debts .

At its CARDINALth session on DATE ORG , having considered the measures needed to guarantee the long - term effectiveness of the control system instituted by the Convention , recommended , inter alia , that member States

“ review , following ORG judgments which point to structural or general deficiencies in national law or practice , the effectiveness of the existing domestic remedies and , where necessary , set up effective remedies , in order to avoid repetitive cases being brought before the ORG ... ”

In the Appendix to the Recommendation of CARDINAL DATE , ORG noted :

“ ... ORG is confronted with an ever - increasing number of applications . This situation jeopardises the long - term effectiveness of the system and therefore calls for a strong reaction from contracting parties . It is precisely within this context that the availability of effective domestic remedies becomes particularly important . The improvement of available domestic remedies will most probably have quantitative and qualitative effects on the workload of the ORG :

 NORP on the one hand , the volume of applications to be examined ought to be reduced : fewer applicants would feel compelled to bring the case before the ORG if the examination of their complaints before the domestic authorities was sufficiently thorough ;

 NORP on the other hand , the examination of applications by the ORG will be facilitated if an examination of the merits of cases has been carried out beforehand by a domestic authority , thanks to the improvement of domestic remedies ...

When a judgment which points to structural or general deficiencies in national law or practice ( ‘ pilot ORG ) has been delivered and a large number of applications to the ORG concerning the same problem ( ‘ repetitive GPE ) are pending or likely to be lodged , the respondent state should ensure that potential applicants have , where appropriate , an effective remedy allowing them to apply to a competent national authority , which may also apply to current applicants . Such a rapid and effective remedy would enable them to obtain redress at national level , in line with the principle of subsidiarity of the Convention system .

The introduction of such a domestic remedy could also significantly reduce the ORG ’s workload . While prompt execution of the pilot judgment remains essential for solving the structural problem and thus for preventing future applications on the same matter , there may exist a category of people who have already been affected by this problem prior to its resolution ...

NORP In particular , further to a pilot judgment in which a specific structural problem has been found , CARDINAL alternative might be to adopt an ad hoc approach , whereby the state concerned would assess the appropriateness of introducing a specific remedy or widening an existing remedy by legislation or by judicial interpretation ...

When specific remedies are set up following a pilot case , governments should speedily inform the ORG so that it can take them into account in its treatment of subsequent repetitive cases ... ”

At the same session of CARDINAL DATE ORG adopted a resolution , by which it invited the ORG to :

“ ... I. as far as possible , to identify , in its judgments finding a violation of the ORG , what it considers to be an underlying systemic problem and the source of this problem , in particular when it is likely to give rise to numerous applications , so as to assist states in finding the appropriate solution and ORG in supervising the execution of judgments ;

II . to specially notify any judgment containing indications of the existence of a systemic problem and of the source of this problem not only to the state concerned and to ORG , but also to ORG , to the Secretary General of ORG and to ORG for Human Rights , and to highlight such judgments in an appropriate manner in the database of the ORG . ”

On DATE ORG considered , pursuant to LAW , the measures adopted by ORG of GPE with a view to complying with the ORG ’s judgments concerning the issue of the prolonged non - enforcement of final domestic decisions . ORG adopted an interim resolution ( CM / ResDH(CARDINAL)CARDINAL ) , the relevant provisions of which read as follows :

“ ORG ...

expresses particular concern that notwithstanding a number of legislative and other important initiatives , which have been repeatedly brought to the attention of ORG , little progress has been made so far in resolving the structural problem of non - execution of domestic judicial decisions ;

STRONGLY ENCOURAGES the NORP authorities to enhance their political commitment in order to achieve tangible results and to make it a high political priority to abide by their obligations under the ORG and by the ORG ’s judgments , to ensure full and timely execution of the domestic ORG decision ;

CALLS UPON the NORP authorities to set up an effective national policy , coordinated at the highest governmental level , with a view to effectively implementing the package of measures announced and other measures which may be necessary to tackle the problem at issue ;

URGES the NORP authorities to adopt as a matter of priority the draft laws that were announced before ORG , in particular the law On LAW ( on the protection of the right to pre - trial and trial proceedings and enforcement of court decisions within reasonable time ) ;

ENCOURAGES the authorities , pending the adoption of the draft laws announced , to consider the adoption of interim measures limiting as far as possible the risk of new violations of LAW same kind , and in particular :

- to consider the adoption of measures similar to those taken in the education sector in other sectors which raise similar problems ;

- to take measures to ensure effective management and control over state entities and enterprises to avoid debts arising to employees ;

- to ensure in practice the effective liability of civil servants for non - enforcement ;

- to award compensation for delays in enforcement of domestic judicial decisions directly on the basis of the ORG ’s provisions and the ORG ’s case - law as provided by the PERSON on enforcement of judgments and the application of the case - law of ORG ;

INVITES the NORP authorities to consider , in addition to the measures announced , appropriate solutions in the following areas :

- to improve budgetary planning , particularly by ensuring compatibility between the budgetary laws and the state ’s payment obligations ;

- to ensure the existence of specific mechanisms for rapid additional funding to avoid unnecessary delays in the execution of judicial decisions in case of shortfalls in the initial budgetary appropriations ; and

- to ensure the existence of an effective procedure and funds for the execution of domestic courts’ judgements delivered against the state ... ”

From DATE ORG resumed consideration under LAW group of the ORG ’s judgments against GPE concerning the failure to enforce , or delays in the enforcement of , domestic decisions . The following decision ( ORG Dec(CARDINAL)CARDINAL ) was adopted by ORG on that subject :

“ The Deputies ,

recalled that , as acknowledged by ORG in its Interim Resolution CM / ResDH(CARDINAL)CARDINAL , the non - enforcement of domestic judicial decisions constitutes a structural problem in GPE ;

NORP noted that there are still a number of cases in which domestic court decisions remain unenforced despite the judgments of ORG ;

NORP noted with concern that , notwithstanding the efforts made by the NORP authorities in adopting interim measures , the structural problem underlying the violations has not been solved ;

NORP observed that failure to adopt all necessary measures , including previously announced legislative measures , has resulted in a steady increase in the number of new applications lodged with ORG concerning non - enforcement of domestic judicial decisions ;

noted with concern in this context that priority has not been given to setting up a domestic remedy in case of non - enforcement or delayed enforcement of domestic judicial decisions , despite the ORG ’s repeated calls to this effect ;

called upon the NORP authorities once again to take rapidly the necessary action to ensure GPE ’s compliance with its obligations under the Convention , and in particular to reconsider the various proposal for reforms made during the examination of these cases ( see , in particular , ORG / DH(CARDINAL)CARDINAL revised and ORG ) ;

decided to resume consideration of these items at the latest at their CARDINAL meeting ( DATE ) ( DH ) , possibly in light of a draft interim resolution taking stock of the general and individual measures adopted by then and other outstanding issues if any . ”


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE , GPE . She is a historian by profession and used to work as a curator in ORG .

On DATE the applicant brought a private prosecution on charges of libel against ORG the director of ORG to ORG ( Sąd Rejonowy ) .

On DATE the court held a conciliatory hearing . The applicant requested that ORG retract in the press her defamatory statements . The defendant refused .

The trial began on CARDINAL DATE but the applicant failed to appear . The court discontinued the proceedings on the ground that the applicant had been duly summoned . The court considered that the applicant had been notified about the service of the summons but failed to collect it from the post office . On DATE the applicant appealed against this decision . On DATE the ORG ( PERSON ) quashed that decision and ordered that ORG proceed with the case .

On DATE the applicant filed a complaint with ORG submitting that the length of the proceedings in her case had exceeded any reasonable time limit . On DATE the president of ORG informed her that the delay in the proceedings was caused by the presiding judge 's illness .

On DATE the president of ORG ordered that the case be transferred to another judge .

The next hearing was held on DATE . On that date upon the court 's order , the applicant specified the charges against S.L. Consequently , the court adjourned the hearing to consider discontinuation of the proceedings .

On DATE the ORG discontinued the proceedings , as the offence was time - barred . The court held that the applicant submitted her private prosecution after the time - limit of DATE from the date on which she had become aware of the identity of the defendant .

Article CARDINAL of the Criminal Code CARDINAL ( which is no longer in force and was repealed and replaced by the so - called “ New Criminal Code ” ) , as applicable at the material time , reads as follows :

“ § CARDINAL . Anyone who imputes to another person , group of persons or institution such behaviour or characteristics , as may debase them in the public opinion or expose them to loss of the trust necessary for a certain position , occupation or type of activity , shall be liable to imprisonment not exceeding CARDINAL years , a restriction of liberty or a fine .

§ CARDINAL . Anyone who raises or makes public untrue allegation about the behaviour or characteristics of another person , group of persons or institutions in order to debase them in the public opinion or expose them to loss of the trust necessary for a certain position , occupation or type of activity , shall be liable to imprisonment not exceeding CARDINAL years .

§ CARDINAL . The prosecution takes place under a private bill of indictment . ”


AGRO-B SPOL. S R.O. v. THE CZECH REPUBLIC

Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert

The applicant , Agro - B , spol . s r.o . is a NORP company with its seat in ORG . It was represented before the ORG by PERSON , a lawyer practising in GPE . The respondent Government were represented by their Agent , Mr PERSON , from ORG .

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

On DATE the applicant company created a joint stock company “ ORG , a.s . ” which was entered in ORG on DATE . On DATE the applicant company affirmed to invest its real estate , the value of which was estimated at CZK CARDINAL,CARDINAL,CARDINAL ( ORG CARDINAL ) , as a non - cash investment in the joint stock company ’s capital . The value of its investment was divided , for the purposes of accounting , into CARDINAL parts , when CZK MONEY ( ORG CARDINAL,CARDINAL ) was booked as a registered capital ( základní kapitál ) , CZK CARDINAL,CARDINAL,CARDINAL ( EUR CARDINAL ) as a guarantee fund ( rezervní fond ) and the remaining part of CZK MONEY ( ORG CARDINAL,CARDINAL ) was placed on other capital funds .

On DATE ORG ( finanční úřad ) levied on the applicant company real estate transfer tax of CZK CARDINAL,CARDINAL,CARDINAL ( EUR CARDINAL,CARDINAL ) , the base of assessment being fixed at CZK CARDINAL,CARDINAL,CARDINAL ( ORG CARDINAL ) , calculated from the value of the immovable property which had not been booked as a registered capital .

On DATE the ORG ( finanční ředitelství ) dismissed the applicant company ’s appeal on the following grounds :

“ Under section CARDINAL(CARDINAL)(e ) investment into companies or cooperatives shall be exempted from payment of gift tax and real estate transfer tax under the relevant legal provisions , i.e. the Second Part of the Commercial Code , which does not recognise any other investment than that in the registered capital , in contrast to the book - keeping procedure ... Moreover , it is clear from section CARDINAL(CARDINAL ) of LAW concerning the management of investments made prior to the creation of a company , that only investments into the company ’s registered capital are to be considered as investments into the company ...

Bearing in mind that LAW ] exempts from payment of tax only investments into the company , using the term of ‘ investment’ as defined in LAW , the exemption only concerns those investments which increase the company ’s registered capital . Other investments ... which do not increase the registered capital are liable to real estate transfer tax . ...

It is to be added that e.g. the Ústí nad Labem Regional Court in its judgment no . CARDINAL Ca CARDINAL/CARDINAL - CARDINAL and ORG in its decision no . III . ÚS CARDINAL/CARDINAL affirmed that an investment ... within the meaning of section CARDINAL(CARDINAL)(e ) of LAW is an investment to the registered capital . ”

On DATE the ORG ( krajský soud ) dismissed the applicant company ’s administrative action against the tax order finding , in particular , that since the applicant company had invested to the joint stock company the immovable property in its entirety and not its part corresponding to the joint stock company ’s registered capital , the difference between the total value of the invested property and the value of the property invested to the registered capital had constituted the base for the real estate transfer tax . Applying systematic and teleological interpretation it concluded that section CARDINAL(CARDINAL)(e ) of LAW covered only investments that increased the registered capital . The court further held that the fact that the joint stock company could not have the registered capital at its disposal - contrary to its other assets – was precisely taken into account in the tax assessment . The court found irrelevant the applicant company ’s reference to section CARDINALa of LAW that the transfer of immovable property to a joint stock company differed from the same operation involving other companies .

In its judgment , ORG made reference to ORG judgment no . III . ÚS CARDINAL/CARDINAL of CARDINAL DATE .

On DATE the applicant company lodged a constitutional appeal ( ústavní stížnost ) alleging a violation of NORP CARDINAL § CARDINAL , CARDINAL § DATE , CARDINAL § CARDINAL and QUANTITY Listina základních práv a svobod ) .

On DATE ORG ( PERSON ) dismissed the appeal , endorsing the reasons on which the administrative and judicial authorities had based their decisions . It referred to ORG opinion which read , inter alia , as follows :

“ The Director of ORG , upon ORG request , submitted that the interpretation of sections CARDINAL and CARDINAL of LAW may allow a conclusion that the term of investment means property of a partner which he or she undertakes to invest in the company ... The total of the company ’s ORG monetary and non - monetary investments constitutes the registered capital which , in terms of book - keeping , is an accounting debit . Precisely , it is the ORG real estate invested in the company , forming , after the transfer of the ownership , the registered capital , which constitutes the investment under section CARDINAL(CARDINAL)(e ) of LAW .... ORG is therefore of the opinion that the investment into the company which was exempted from payment of real estate transfer tax under LAW [ then in force ] was only the investment valuably expressed in the registered capital . ...

ORG also referred to the ... opinion of certain courts , e.g. judgments of ORG no . CARDINAL Ca CARDINAL - CARDINAL - CARDINAL , of LOC no . CARDINAL Ca CARDINAL/CARDINAL , of ORG no . CARDINAL Ca DATE , ORG no . CARDINAL Ca CARDINAL/CARDINAL - CARDINAL which are published in LOC , or in professional bulletins ... ORG adopted a concordant opinion in its decisions no . III . ÚS CARDINAL/CARDINAL and no . II . ÚS CARDINAL/CARDINAL . According to the Ministry , the tax legislation and its interpretation is accessible to the public , clearly defined and consistent , and so foreseeable . ”

ORG held that the imposition of tax was in conformity with the LAW as it was based on the law . It further held that having carefully reasoned their decisions , it could not be said that the fiscal authorities had applied the law arbitrarily . The court found irrelevant the applicant company ’s reference to section CARDINALa of LAW that the taxation regime applicable to joint stock companies differed from that which applied to limited liability companies .

Under section PERSON ) real estate transfer tax is payable on the transfer of an estate carried out in return for payment .

Section DATE provides that the real estate transfer tax base is the price established under the relevant legal provisions on DATE of the acquisition of the estate , even if the price agreed between the parties is lower than the legally established price .

Section CARDINAL(CARDINAL)(e ) provided , inter alia , that investments into companies or ORG under a special law , i.e. the Second Part of LAW , shall be exempted from payment of gift tax and real estate transfer tax .

Section CARDINAL(CARDINAL)(e ) provides , inter alia , that investments into the registered capital of companies or ORG under a special law , i.e. the Second Part of LAW , shall be exempted from payment of gift tax and real estate transfer tax .

Section CARDINAL provides , inter alia , that a company ’s registered capital consists of the total of its ORG monetary and non - monetary investments in the registered capital .

Under section CARDINAL(CARDINAL ) , a partner ’s investment in the company shall be the total sum of his or her monetary contribution and any other investment appraisable in monetary terms which the partner undertakes to invest in the company .

Section CARDINAL(CARDINAL ) provides , inter alia , that ownership title to real estate is acquired by the company upon the recording of the ownership title in ORG on the basis of a written declaration by the party concerned , to which are appended officially authenticated signatures .

Under section CARDINALa(CARDINAL ) the issue price of a share is the sum at which a company issued shares . The issue price can not be lower than the nominal value of a share . The second paragraph provides , inter alia , that if the issue price of a share is higher than its nominal value , the difference constitutes a share premium . Under the third paragraph , the difference between the value of non - monetary investment and the nominal value of shares which are to be issued to the shareholder as consideration , is considered as a share premium , providing that the company ’s statute , articles of association or a decision of the general meeting do not specify that that difference or part thereof is to be paid to the subscriber , or , that it is to be considered as a guarantee fund .

The court held that if the claimant ’s investment had not been intended to increase the company ’s registered capital , it could not be considered as an investment within the meaning of section CARDINAL(CARDINAL)(e ) of LAW .

The court held that only investments that increase a company ’s registered capital are exempt from payment of tax under section CARDINAL(CARDINAL)(e ) of LAW .

The court stated that section CARDINAL(CARDINAL ) of LAW defines the investment of a partner as the total sum of his or her monetary contribution and any other investment appraisable in monetary terms which the partner undertakes to invest in the company . The registered capital is then defined as the total of the ORG monetary and non - monetary investments in the registered capital . Section CARDINAL(CARDINAL)(e ) of the LAW exempts from payment of gift tax investments into companies or ORG under the relevant legal provisions , i.e. the Second Part of LAW . It follows that LAW does not provide for any other investment than that into the registered capital , contrary to accounting rules . Taking into account that LAW exempts from payment of taxes only investments into a company when using the term of investment as defined by LAW , the exemption applies only to the investments which increase the company ’s registered capital .

The court held that the terminology used by the legislator in section CARDINAL(CARDINAL)(e ) of LAW was not equivocal . The legislator used the term of non - monetary investment , which can only be exempted from payment of tax , in meaning both the investment of a partner and , at the same time , the whole substance of the investment , i.e. not only the part which constitutes the partner ’s investment but also the part which was considered as a share premium . LAW had not specified , until DATE , which of the CARDINAL meanings of the investment had to be used by section CARDINAL(CARDINAL)(e ) .

The court found in relation to litigation prior to the change in DATE that the exemption from payment of real estate transfer tax only applied to an investment into the registered capital of a company . In that case , the real estate transfer tax will not be levied .

The court , applying the version in force before DATE , found that the exemption from payment of real estate transfer tax only applied to investment into a company within the meaning of LAW . Only those investments which were to increase the registered capital could be exempted from payment of real estate transfer tax . Investments which did not increase the registered capital are liable to tax .

The domestic courts held that real estate transfer tax had to be paid on investments into companies that did not form part of the registered capital .