Violation of Art. 5-1;Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

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

On an unspecified date the applicant inherited from her mother a PERCENT share in a property situated in ORG at TIME . The property consisted of an apartment building and a plot of land . On DATE the ORG ( FAC ) appointed the applicant as the administrator of the property .

Subsequently , the applicant requested the previous administrator of the property , the association GPE , to cease all of its activities relating to the administration of the property . However , the association ignored her request and continued to collect rent from tenants living in the apartment building . In addition , the applicant challenged the right of Mr PERSON to collect rent from tenants leasing business LOC located in the building , claiming that his title to a part of the property had been obtained under false pretences . These challenges resulted in an on - going dispute between the applicant on the CARDINAL side and the association and Mr PERSON on the other .

On DATE , Mr PERSON , acting through his counsel PERSON , brought a private prosecution against the applicant . A private bill of indictment filed by Mr PERSON alleged that the applicant was guilty of criminal libel since , on DATE , she had sent to a bank , which had made a loan to Mr PERSON , a letter stating that he had obtained the loan under false pretences and had been repaying it from income obtained from her property .

During the hearing before LOC held on DATE , counsel for Mr PERSON and the applicant refused to settle the case . The applicant confirmed that on DATE she had sent the impugned letter , which had led Mr PERSON to bring the private prosecution against her . Counsel for Mr PERSON asked the court to request ORG ( GPE Zdrowia Psychicznego ) for information on whether the applicant was a patient of that clinic and , if so , to instruct it to provide the court with her medical file . Counsel based his request on the fact that , according to his knowledge , the applicant was indeed a patient at that clinic . The applicant denied that she had ever undergone psychiatric treatment and stated that counsel 's submission was slanderous . The court decided that it would consider counsel 's request in camera at DATE , and that it would request information about the applicant 's criminal record and background ( wywiad środowiskowy ) .

On DATE ORG granted the request made on DATE and asked ORG to provide information about any medical treatment which the applicant had received there .

On DATE ORG informed ORG , in a letter signed by PERSON GPE , that on DATE the applicant had visited the clinic and that her medical file included a reference to “ suspected paranoid schizophrenia ” ( podejrzenie schizofrenii urojeniowej ) .

On DATE police constable Z.A. issued a statement concerning the outcome of the background check , which had been conducted at CARDINAL FAC where the applicant resided at that time . He concluded , inter alia , that the applicant 's neighbours had a good opinion of her , that she did not drink heavily and that she was not involved in any quarrels with her neighbours .

On DATE counsel for Mr PERSON requested ORG to order an expert opinion on the state of the applicant 's mental health . He also submitted several letters written by the applicant and pointed out that they showed that the applicant had claimed rent from certain tenants occupying retail and office space located on the property , despite the fact that the association PERSON had been letting out those LOC .

On DATE the court appointed CARDINAL psychiatrists and a psychologist and instructed them to prepare a report on the applicant 's condition at the time of the commission of the alleged crime . On DATE the experts scheduled an appointment with the applicant for DATE .

On DATE the applicant asked ORG ( Okręgowa Izba Lekarska ) to initiate disciplinary proceedings against Dr GPE for making a false representation in her letter of DATE . The applicant contested the contents of that letter , claiming that it had been based on fabricated medical records since she had never visited ORG . The applicant 's requests for an investigation into the circumstances in which the letter had been issued were rejected by LOC and Regional Prosecutors .

On an unspecified date , ORG ordered the applicant to report on DATE for an examination in a psychiatric ward of ORG headed by PERSON GPE The applicant 's appeals and complaints concerning that decision were rejected by the Łódź District and ORG . The applicant submitted that she had asked ORG to change the venue of her examination as she had considered that no objective opinion on her mental health could be issued after an examination in a ward headed by Dr GPE

On DATE the applicant failed to attend the psychiatric examination .

On DATE the applicant filed an application challenging all judges of ORG , but it was dismissed on DATE .

On DATE ORG issued an arrest warrant in order to secure the applicant 's compliance with its order concerning her psychiatric examination .

The Government submitted that on DATE the police informed the court that the applicant had refused to open the door to her flat and the police officers had therefore been unable to enforce the arrest warrant . The applicant denied that , and pointed to the fact that on DATE she had voluntarily gone to the police station ( see below ) .

On DATE ORG issued an order fixing CARDINAL DATE as the new date for the applicant 's compulsory psychiatric examination . However , the applicant did not keep the appointment .

On DATE ORG issued a new arrest warrant and scheduled the applicant 's examination for DATE . The applicant again failed to attend the examination .

On DATE the ORG decided that the applicant should be arrested and detained on remand in order to secure her compliance with its order .

On DATE the applicant visited the FAC ( Komenda Rejonowa Policji ) in order to file a complaint about a breaking and entry into CARDINAL of her apartments . However , her complaint was not accepted by the police and she was arrested under ORG warrant . On DATE the applicant was transferred to FAC . CARDINAL .

On DATE the applicant 's daughter filed an appeal against ORG decision of CARDINAL DATE ordering the applicant 's arrest and detention . However , the appeal was rejected on DATE because the court considered that the applicant 's daughter was not authorised to file an appeal on behalf of her mother .

On DATE the applicant 's counsel appealed the decision of CARDINAL October CARDINAL , but the appeal was dismissed on an unknown date .

On DATE the applicant underwent a psychiatric examination . The psychiatrists who examined the applicant concluded that they could not make a diagnosis based on a single examination , and recommended that the applicant undergo a psychiatric examination in a public hospital . They also stated that only if the applicant failed to present herself for an examination at the public hospital should she be subjected to an examination in a prison hospital . On DATE she was released from detention .

DATE and DATE the applicant 's daughter applied twice to ORG for leave to visit the applicant . Both applications were allowed .

On DATE the ORG decided that the applicant should undergo a psychiatric examination in a medical establishment ( zakład leczniczy ) . On DATE ORG ( Sąd Wojewódzki ) dismissed the applicant 's appeal against that decision .

On DATE the experts appointed by the court to examine the applicant informed it that the examination could take place CARDINAL .

On DATE the applicant again failed to report for an examination .

On DATE ORG issued an arrest warrant because of the applicant 's failure to attend a psychiatric examination at a public hospital . The court decided that she would be detained on remand under LAW ) of LAW . It considered that the applicant had obstructed the criminal proceedings against her since she had not attended the hospital , despite being served with a summons , and because the police were unable to bring her to the hospital .

On DATE the ORG issued a search warrant , considering that the applicant was in hiding since she was not staying at her residence .

On DATE the applicant was arrested . On DATE she was transferred to prison .

On DATE ORG allowed an application for leave to visit the applicant filed by the applicant 's daughter .

NORP On DATE ORG dismissed the applicant 's appeal against ORG decision to arrest her . On DATE the experts advised the court that the applicant 's examination could start on DATE .

On DATE the applicant 's daughter , PERSON , filed with ORG an application for leave to visit the applicant . She asked for CARDINAL separate authorisations , for herself and her sister PERSON GPE , to visit their mother on “ multiple occasions ” ( wielokrotne widzenia ) . On CARDINAL DATE the judge noted the following instruction to the registry :

“ Inform PERSON that the court gives CARDINAL authorisation per month as far as meetings with a detainee are concerned , and other [ authorisations ] only in exceptional cases . ”

On DATE ORG dismissed the applicant 's request that she be released from prison .

On DATE ORG allowed the application for leave to visit the applicant filed by the applicant 's daughter .

On DATE ORG dismissed the applicant 's appeal against ORG decision of DATE .

DATE and CARDINAL DATE the applicant underwent a psychiatric examination in the prison hospital at FAC . CARDINAL . A medical opinion issued after that examination concluded that the applicant 's intellectual ability was substantially above average and that she showed no signs of being either mentally ill or retarded . The opinion also stated that she had a paranoid personality and that she had understood what she was doing at the time of the commission of the alleged offence .

In the meantime , on CARDINAL DATE ORG allowed the application for leave to visit the applicant filed by the applicant 's daughter .

In a letter of CARDINAL DATE the Vice - President of ORG advised the applicant that her examination in a medical establishment had been ordered by a court in response to the request by psychiatrists , who had concluded that they had been unable to draw up an expert opinion on the applicant 's mental health after a single examination .

On CARDINAL DATE the applicant was transferred to FAC . CARDINAL . On DATE ORG allowed the application for leave to visit the applicant filed by her daughter .

DATE . On DATE the applicant was released from prison .

Subsequently , the ORG discontinued the criminal proceedings against the applicant .

Article CARDINAL § QUANTITY of LAW DATE ( “ the Code ” ) , in so far as relevant , provides :

“ A person who , because of being mentally retarded or ill ... , could not understand his acts or who could not control his behaviour [ at the time of the commission of the offence ] shall not be criminally responsible . ”

Article CARDINAL § CARDINAL(CARDINAL ) of the LAW , in so far as relevant , provides :

“ Detention on remand may be imposed if : ...

there is a reasonable risk that [ the accused ] will attempt to induce witnesses to give false testimony or to obstruct the proper course of proceedings by any other unlawful means ... ”

DATE ) of the LAW , in so far as relevant , reads as follows :

“ If it proves necessary for the purposes of taking evidence , the accused shall submit to :

( CARDINAL ) the external examination of the body and other examinations not involving interference with the body ... ”

Paragraph CARDINAL(CARDINAL ) of ORG concerning the rules governing detention on remand provides as follows :

“ A person detained on remand may have visits after obtaining permission from the organ at whose disposal he remains , unless that organ decides otherwise . ”


The applicant is a NORP citizen , born in DATE and living in GPE ( GPE ) . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE ( GPE ) . The respondent Government are represented by their Agent , PERSON .

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

The applicant served in ORG and , according to the Government , in DATE he retired from service . The applicant claims that he retired from service in DATE . His military pension was assessed according to his rank and DATE of service and was paid from ORG .

In DATE GPE enacted a law adopting the former NORP law that had regulated the pension and disability rights of the military personnel . During DATE and DATE that law was changed several times by decrees of the NORP government and acts of ORG .

On DATE , ORG , ORG , assessed the applicant ’s pension , as from DATE , at CARDINAL MONEY of the amount he had received until and in DATE . The applicant appealed against that decision and after his appeal was dismissed , instituted administrative proceedings with ORG ( Upravni sud PERSON ) , which dismissed the applicant ’s claim on DATE .

On DATE ORG passed a law on the regulation of pensions of the former ORG officers that , among other provisions , reiterated that the amount of the former ORG officers’ pension shall be PERCENT of what they had received in DATE .

On DATE the applicant lodged a constitutional complaint claiming that the decisions of the administrative bodies and ORG had violated his constitutional rights to protection of property and not to be discriminated against .

On DATE the ORG enacted new legislation regulating the pension rights of all NORP citizens , including the former ORG officers .

On DATE ORG ( Ustavni sud PERSON ) rejected the applicant ’s claim . The decision was reasoned as follows :

“ The rights of military pensioners , who retired before DATE and who had been citizens of GPE with residence therein and in respect of whom the payments of their pensions were terminated by ORG , were regulated by the LAW then in force incorporating into NORP law the former federal law regulating the pension insurance for military personnel ( LAW ) , which is to be applied in GPE as its own law .

Section CARDINAL of the Decree that altered LAW , which is to be applied in GPE as its own law , served as a basis to determine the amount of the applicant ’s pension by the first instance decision . That section altered section CARDINALb , § CARDINAL of the above mentioned LAW , providing that pensions determined by section CARDINAL § CARDINAL of the same LAW will be paid in the amount of PERCENT of what had been paid in DATE .

ORG has determined that the challenged acts were based on the laws that were in force at that time and that the applicant ’s constitutional right on which he relies in his claim was not violated . ”

Section CARDINAL of the Decree that altered LAW ( Official Gazette no . CARDINAL of DATE ) , which was to be applied in GPE as its own law , provided that the former ORG officers’ pensions should be paid in the amount of PERCENT of what had been paid to them in DATE .

Section CARDINAL of LAW provides as follows :

“ ORG shall enjoy all rights and freedoms , regardless of race , colour , sex , language , religion , political cal or other opinion , national or social origin , property , birth , education , social status or other characteristics .

All shall be equal before the law . ”


Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings

The applicant was born in DATE and lived at the time of the events in PERSON ( GPE ) . He presently lives in GPE ( GPE ) .

In DATE the applicant arrived in GPE together with his brother , born in DATE , and joined his mother who had already been living and working there . Subsequently his mother remarried . The applicant 's family now consists of his mother , his stepfather , his brother and CARDINAL sisters , born in DATE .

On DATE ORG filed a criminal complaint against the applicant on suspicion of burglary . On DATE ORG ( PERSON ) provisionally discontinued the criminal proceedings and ordered the applicant to compensate the victims for the damage caused . On CARDINAL DATE ORG issued a prohibition to possess arms ( PERSON ) under LAW ( GPE ) against the applicant as he had , in DATE , attacked several persons with an electroshock device . On CARDINAL DATE the applicant was remanded in custody on suspicion of having committed CARDINAL burglaries .

On DATE ORG convicted the applicant of burglary and sentenced him to DATE imprisonment , suspended for DATE . On DATE the applicant was released from detention on remand .

On DATE ORG Bezirkshauptmannschaft ) issued a DATE residence prohibition against the applicant . Having regard to the above events and in particular the applicant 's conviction , it found that his further stay in GPE was contrary to the public interest . These considerations were not outweighed by his family links in GPE . On DATE the applicant , assisted by counsel , appealed against this decision . Relying on LAW he submitted , inter alia , that ORG had failed to take sufficiently into account his private and family situation .

On DATE the applicant was again remanded in custody on suspicion of having committed further burglaries in DATE . On DATE ORG again convicted the applicant of burglary and sentenced him to a further term of imprisonment of DATE , suspended for DATE . On DATE the applicant was released from detention on remand .

On CARDINAL DATE the ORG Sicherheitsdirektion ) dismissed the applicant 's appeal against ORG decision of DATE . As regards the applicant 's family situation , the authority noted that the applicant 's mother , his brother and CARDINAL sisters were living in GPE . However , having regard to the applicant 's serious criminal behaviour the issue of a residence prohibition was nevertheless necessary in the public interest .

On DATE the applicant filed a complaint with ORG ) against the residence prohibition . On DATE the ORG declined to deal with the matter for lack of prospects of success and remitted the case to ORG ( Verwaltungsgerichtshof ) .

On DATE the applicant supplemented his complaint to ORG which dismissed it on DATE . It found that the authorities had correctly found that the residence prohibition was necessary in the public interest and did not constitute a disproportionate interference with the applicant 's family situation .

On DATE the applicant was taken into detention with a view to his expulsion and , on DATE , he was deported to PERSON .


No violation of Art. 2 (procedural aspect);No violation of Art. 3 (substantive aspect);No violation of Art. 5-1

David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

After its declaration of independence on DATE , a brutal war started in GPE . It would appear that CARDINAL people were killed and CARDINAL people were displaced . It is estimated that CARDINAL people went missing and that CARDINAL of them is still missing . The major parties to the conflict were the ORG ( mostly made up of Bosniacs and loyal to the central authorities of GPE ) , ORG ( mostly made up of NORP ) and the ORG ( mostly made up of NORP ) . The conflict came to an end on DATE when ORG for Peace ( “ FAC ” ) entered into force . In accordance with that Agreement , GPE consists of CARDINAL Entities : ORG and PERSON . ORG failed to resolve ORG in the GPE area , but the parties agreed to a binding arbitration in this regard under ORG rules ( LAW to ORG ) . LOC , under the exclusive sovereignty of the ORG and international supervision , was formally inaugurated on DATE .

NORP In response to atrocities then taking place in GPE , on DATE ORG passed resolution CARDINAL establishing ORG for the former GPE ( “ the ORG ” ) headquartered in GPE . Although the ORG and national courts have concurrent jurisdiction over serious violations of international humanitarian law committed in the former GPE , the ORG can claim primacy and may take over national investigations and proceedings at any stage if this proves to be in the interest of international justice . It can also refer its cases to competent national authorities in the former GPE . CARDINAL individuals have been convicted and currently CARDINAL people are in different stages of proceedings before the ORG . CARDINAL accused are still at large ( Mr PERSON and Mr ORG ) .

Furthermore , ORG on ORG ( “ the ICMP ” ) was established at the initiative of GPE President PERSON in DATE . It is currently headquartered in GPE . In addition to its work in the former GPE , the ICMP is now actively involved in helping governments and other institutions in various parts of the world address social and political issues related to missing persons and establish effective identification systems in the wake of conflict or natural disaster . Reportedly , the ICMP has so far identified by DNA around CARDINAL missing persons in GPE , whereas local authorities have identified by traditional methods CARDINAL missing persons .

After the war , the ORG , ORG and ORG forces merged into ORG .

The applicant was born in DATE and lives in GPE .

The applicant ’s husband , PERSON , was a military commander of the ORG forces in ORG “ safe area ” of Žepa during the war . On DATE , shortly after the ORG forces had taken control of that area , Mr Palić went to negotiate the terms of surrender with the ORG forces and disappeared .

NORP Following many fruitless attempts to obtain any official news about her husband , on DATE the applicant lodged an application against ORG with ORG , a domestic human - rights body set up by Annex CARDINAL to ORG .

On DATE ORG held a public hearing and heard several witnesses , including Mr PERSON and Mr PERSON who had been detained together with Mr Palić in a military prison in PERSON in DATE . ORG maintained at the hearing that it had no knowledge of the arrest and detention of PERSON .

In its decision of DATE , ORG held that Mr Palić had been a victim of “ enforced disappearance ” within the meaning of the Declaration on the Protection of All Persons from Enforced Disappearance and found a breach of ORG , CARDINAL and CARDINAL of the Convention in respect of Mr Palić and Articles CARDINAL and CARDINAL of the Convention in respect of the applicant . PERSON was ordered : ( a ) to carry out immediately a full investigation capable of exploring all the facts regarding the fate of PERSON with a view to bringing the perpetrators to justice ; ( b ) to release PERSON , if still alive , or to make available his mortal remains to the applicant ; and ( c ) to make all information about the fate and whereabouts of Mr Palić known to the applicant . The applicant was awarded , for non - pecuniary damage , MONEY ( BAM – CARDINAL,CARDINAL euros ( ORG ) ) and , in respect of her husband ( which sum was to be held by the applicant for her husband or his heirs ) , BAM MONEY ( EUR CARDINAL ) . The decision was delivered on DATE and entered into force on DATE when the full ORG rejected ORG request for review .

On DATE the Republika Srpska acknowledged that Mr Palić had been held in Vanekov mlin , a military prison in PERSON administered by the ORG forces , DATE and DATE and that on the latter date Mr ORG , Security Officer of ORG , had taken PERSON from that prison .

Having found that Mr Pećanac had meanwhile settled in GPE , in DATE PERSON authorities issued a domestic arrest warrant against him . In DATE and DATE they interviewed the entire war - time personnel of Vanekov mlin , including its governor .

On DATE ORG ( answerable to ORG ) asked ORG to take over this case . On DATE the latter decided that the case should remain with ORG and returned the case file .

On DATE ORG , which had replaced ORG , rendered another decision in this case : while noting that the monetary award had been paid , it held that the decision of DATE had not yet been fully enforced . PERSON was given an additional DATE period in which to do so .

From DATE until DATE the authorities of ORG and GPE , at the request of ORG , interviewed CARDINAL people in connection with this case , including Mr Pećanac .

On DATE ORG repeated in another decision that the core element of the decision of DATE had not been enforced : PERSON had not released PERSON , if still alive , or otherwise had not made available his mortal remains to the applicant and no prosecution had been brought . This decision was submitted to ORG ( non - enforcement of the decisions of ORG constitutes a criminal offence , see paragraph CARDINAL below ) .

On DATE PERSON , at the request of ORG , established an ad hoc commission to investigate this case . It included Mr PERSON who had allegedly attended the meeting of ORG mentioned in paragraph CARDINAL above ( see paragraph CARDINAL below ) . The applicant appointed her representative to that commission .

On DATE ORG , at the applicant ’s request , issued a declaration of presumed death with respect to Mr Palić ( see paragraph CARDINAL below ) .

On DATE the ad hoc commission adopted a report . Having interviewed numerous people , it established that Mr Palić had been captured by the ORG forces ( that is , by Mr PERSON of ORG ) and handed over to Mr PERSON , Assistant Commander for ORG of ORG . By order of ORG , the Commander of the ORG , he was held in a private flat in GPE ( belonging to Mr PERSON , Security Officer of ORG ) for DATE or so and then in Vanekov mlin , the military prison mentioned above . He was interrogated DATE by security officers of the ORG . It was also established that Mr Pećanac and his driver , Mr PERSON , had taken Mr Palić from that prison on TIME DATE . While questioned by the NORP authorities , at the request of ORG , PERSON and PERSON said that they had taken PERSON to PERSON and handed him over to the late Mr PERSON . However , the report established that Mr PERSON had not been in NORP Pijesak at that time .

On DATE the Prime Minister of the Republika Srpska established another ad hoc commission to investigate this case . He also met the applicant who appointed her representative to that commission .

On DATE ORG issued international arrest warrants against Mr Pećanac and PERSON on suspicion of having committed an enforced disappearance as a crime against humanity .

In DATE the second ad hoc commission established that Mr Palić had been buried in a mass grave in GPE near GPE and , having searched the area in vain , that he could have been transferred to a secondary mass grave in ORG ( where CARDINAL unidentified bodies had been exhumed on DATE ) or elsewhere in that area .

On DATE the authorities of GPE and PERSON arrested PERSON and transferred him to the custody of the ORG .

On DATE the ICMP established that CARDINAL of the unidentified bodies from the mass grave in ORG ( which had been exhumed on CARDINAL DATE and reburied in a nameless grave in GPE on DATE ) was that of Mr Palić . ORG then ordered that the body be exhumed . On DATE the ICMP confirmed through DNA tests that the body indeed belonged to Mr Palić .

On DATE Mr Palić was finally buried on the grounds of ORG in GPE with military honours .

On DATE the ORG amended the indictment against Mr Tolimir . He is charged with the participation in joint criminal enterprise to forcibly transfer and deport the NORP populations of GPE and PERSON , a natural and foreseeable consequence of which was the killing of Mr Palić and CARDINAL other NORP leaders from PERSON by the ORG ( the third category of joint criminal enterprise ) . His trial commenced on DATE .

Mr Pećanac and Mr Mijatović live in GPE . They were granted NORP citizenship on DATE and CARDINAL DATE , respectively .

Armed conflicts often lead to the disappearance of CARDINAL of people . Pursuant to ORG DATE of LAW to LAW of DATE , and relating to ORG , of DATE , families have the right to be informed of the fate of missing relatives ; the parties to a conflict must search for persons reported missing by an adverse party and facilitate enquiries made by members of families dispersed as a result of the conflict so as to help them restore contact with one another and try to bring them together again ; and lists showing the exact location and markings of the graves , together with particulars of the dead interred therein , must be exchanged . ORG ( ICRC ) , with the assistance of its ORG , has long experience in searching for soldiers and combatants who go missing during military operations ( “ missing in action ” ) and for civilians who are reported missing as a consequence of armed conflict .

This is a much narrower concept . A recent definition of “ enforced disappearance ” is set out in LAW from Enforced Disappearance of DATE :

“ For the purposes of this Convention , ‘ enforced ORG is considered to be the arrest , detention , abduction or any other form of deprivation of liberty by agents of the ORG or by persons or groups of persons acting with the authorisation , support or acquiescence of the ORG , followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person , which place such a person outside the protection of the law . ”

The widespread or systematic practice of enforced disappearance is described as a crime against humanity in LAW of DATE .

The Agreement between GPE and GPE on ORG ( published in ORG Herzegovina , International Treaty Series , no . CARDINAL of DATE , amendments published in ORG no . CARDINAL of DATE ) entered into force on DATE . Under Article CARDINAL thereof , when a citizen or resident of CARDINAL ORG is suspected of having committed an offence in the territory of the other ORG , the latter may request the former to take proceedings in the case . While such a request is pending , the requesting ORG may not prosecute the suspected person for the same offence . Moreover , a person in respect of whom a final criminal judgment has been rendered in the requested ORG may not be prosecuted for the same offence in the requesting ORG if he or she has been acquitted or if the sanction imposed has been enforced or the subject of a pardon or amnesty ( LAW ) . Lastly , when CARDINAL ORG intends to request the transfer of proceedings , it may also request the other ORG to provisionally arrest the suspected person ( LAW ) .

The DATE LAW ( published in ORG nos . CARDINAL of DATE and CARDINAL of DATE , amendments published in ORG nos . CARDINAL of DATE , CARDINAL of DATE , CARDINAL of DATE , CARDINAL of CARDINAL DATE , CARDINAL of DATE , CARDINAL of DATE , CARDINAL of CARDINAL DATE and CARDINAL of DATE ) entered into force on DATE .

The relevant part of LAW provides as follows :

“ CARDINAL . Whoever , as part of a widespread or systematic attack directed against any civilian population , with knowledge of such an attack perpetrates any of the following acts :

i ) enforced disappearance of persons ;

shall be punished by imprisonment for a term not DATE or long - term imprisonment .

For the purpose of paragraph CARDINAL of this Article the following terms shall have the following meanings :

h ) Enforced disappearance of persons means the arrest , detention or abduction of persons by , or with the authorisation , support or acquiescence of , a ORG or a political organisation , followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons , with an aim of removing them from the protection of the law for a prolonged period of time .

Furthermore , in accordance with LAW , non - enforcement of a decision of ORG is an offence :

“ An official of the ORG , the ORG or the Brčko District who refuses to enforce a final and enforceable decision of ORG , ORG , ORG or ORG , or who prevents the enforcement of any such decision , or who frustrates the enforcement of any such decision in some other way , shall be punished by imprisonment for a term DATE . ”

The DATE Code of Criminal Procedure ( published in ORG nos . CARDINAL of DATE and CARDINAL of CARDINAL DATE , amendments published in ORG nos . CARDINAL of DATE , CARDINAL of DATE , CARDINAL of DATE , CARDINAL of DATE , CARDINAL of DATE , CARDINAL of DATE , CARDINAL of CARDINAL DATE , CARDINAL of CARDINAL DATE , CARDINAL of DATE , CARDINAL of DATE , CARDINAL of DATE , CARDINAL of DATE , CARDINAL of DATE , CARDINAL of DATE , CARDINAL of CARDINAL DATE and CARDINAL of DATE ) entered into force on DATE .

LAW reads as follows :

“ An accused may never be tried in absentia . ”

War Crimes Sections of the Criminal and Appellate Divisions of the Court of GPE have been set up pursuant to ORG ( a consolidated version thereof published in ORG Herzegovina no . CARDINAL of DATE , amendments published in ORG nos . CARDINAL of DATE and CARDINAL of DATE ) .

Any person or body demonstrating a legitimate interest may lodge a request for a declaration of presumed death with respect to those who went missing during the DATE - CARDINAL war as from the expiry of the waiting period , which is DATE from the cessation of the hostilities ( the Non - Contentious Procedure Act DATE , published in ORG of GPE no . CARDINAL of DATE , which was in force in ORG until DATE and in ORG until DATE ; the Non - Contentious Procedure Act DATE , published in ORG Herzegovina no . CARDINAL of DATE , amendments published in ORG nos . CARDINAL of DATE and CARDINAL of DATE ; and ORG DATE , published in Official Gazette of the Republika Srpska no . CARDINAL of CARDINAL DATE ) .

Pursuant to section ORG ) of LAW , a declaration of presumed death will automatically be issued with respect to all those recorded as missing in ORG ( see paragraph CARDINAL below ) .

LAW published in ORG GPE no . CARDINAL of DATE ) entered into force on CARDINAL DATE . It provides , in so far as relevant , as follows :

“ Families of missing persons have the right to know the fate of their missing family members and relatives , their place of ( temporary ) residence , or if dead , the circumstances and cause of death and location of burial , if such location is known , and to receive the mortal remains . ”

“ The status of missing person is terminated on the date of identification , and the process of tracing the missing person is concluded .

In the event that a missing person is proclaimed dead , but the mortal remains have not been found , the process of tracing shall not be terminated . ”

ORG and , within that ORG have been set up as domestic institutions pursuant to that LAW . ORG , although envisaged , has not yet been set up .

The War Crimes Act DATE ( published in ORG no . CARDINAL , amendments published in ORG nos . CARDINAL , CARDINAL , DATE and DATE ) entered into force on DATE . ORG , ORG and ORG within ORG and ORG have been set up pursuant to LAW . They have jurisdiction over serious violations of international humanitarian law committed anywhere in the former GPE ( see section CARDINAL of this Act ) . A number of persons have been convicted in GPE for war crimes committed during the DATE - CARDINAL war in GPE . As an example , at the request of GPE , the NORP authorities have taken proceedings and convicted Mr PERSON of war crimes committed against ORG in Stari Majdan in DATE and sentenced him to DATE imprisonment . As another example , they have recently convicted PERSON , PERSON , Mr PERSON and PERSON of war crimes committed against FAC in GPE in DATE and sentenced them to CARDINAL , DATE , DATE and DATE imprisonment respectively .

The Mutual Assistance in Criminal Matters Act DATE ( published in Official Gazette of GPE no . CARDINAL ) entered into force on DATE . Under section CARDINAL of this Act , NORP citizens may not be extradited . This Act repealed the corresponding provision of LAW ( published in ORG of GPE no . CARDINAL/CARDINAL , amendments published in ORG of GPE no . CARDINAL/CARDINAL and ORG nos . CARDINAL , CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL/CARDINAL ) which was in force DATE and DATE .


ORG On DATE at QUANTITY was arrested in GPE for insulting , threatening and assaulting CARDINAL municipal police officers in the execution of their duty and taken into police custody .

ORG The GPE public prosecutor ’s office , which was immediately informed by telephone , confirmed the police custody and the applicant was taken to Rebibbia Prison .

ORG On DATE the police forwarded the report on the arrest to the public prosecutor ’s office , which that DATE arranged a hearing for the following morning in ORG , seeking to have the arrest confirmed ( convalida dell’arresto ) .

ORG On DATE at TIME the public prosecutor ’s office also applied for PERSON to be detained at her home pending trial ( LAW of LAW ) .

ORG After satisfying itself that the relevant statutory formalities in respect of arrest had been complied with ( including bringing the applicant before the public prosecutor ’s office within TIME of her arrest , drawing up and sending on the police report within the same period and requesting the public prosecutor ’s office to confirm the arrest within TIME ) , the court confirmed the arrest . However , it did not consider it necessary to detain PERSON pending trial and ordered that she be released immediately .

ORG At the end of proceedings known as " patteggiamento " ( a shortened form of procedure whereby , at the request of the public prosecutor ’s office or , as in the present case , of the defendant , the court imposes a sentence agreed on by the public prosecutor ’s office and the defendant ) the court sentenced the applicant to DATE and CARDINAL days’ imprisonment , suspended .

ORG The hearing ended at TIME At TIME the police escorted PERSON to PERSON . At TIME the record of the hearing was served on her by the prison management . TIME the prison authorities completed the statutory formalities ( accounts , return of effects , notification of release to the police , entry in the prison register ) . At TIME the applicant gave the prison management her address for notification purposes , and at TIME she left the prison .

ORG LAW has several provisions that are applicable in the instant case , as set out below :

" CARDINAL . Police officers who have effected an arrest ... shall immediately inform the public prosecutor ’s office of this ...

... the police officers shall place the person arrested ... at the disposal of the public prosecutor ’s office within TIME of the arrest ... They shall send the police report to the public prosecutor ’s office within TIME unless the latter grants an extension of time . "

" CARDINAL . Within TIME of the arrest ... , if the public prosecutor ’s office does not consider it necessary to release the defendant immediately , it shall ask the judge responsible for the preliminary inquiry to confirm the arrest ...

The judge shall hold the hearing to confirm the arrest as soon as possible , and in any event not more than TIME after the request for confirmation ... "

" If the arrest is lawful and the time - limits laid down in Articles CARDINAL para . CARDINAL and CARDINAL para . CARDINAL have been observed , the judge shall confirm the arrest in an order . An appeal on points of law shall lie against that decision ... "

" ... the public prosecutor ’s office shall order in a reasoned decision the immediate release of the person arrested ... where it does not envisage applying [ to the judge ] for a preventive measure . "


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

The applicant was the owner of a bus capable of transporting QUANTITY persons . On DATE the applicant hired his vehicle for DATE to PERSON , a company which was authorised under the rental agreement to take passengers to GPE and all countries of LOC and LOC . L. further undertook to comply with “ all limits and prohibitions imposed by NORP and international legislation ” .

On DATE the drivers of the bus , X and Y , were arrested in ORG ) while illegally transporting CARDINAL clandestine immigrants of NORP nationality . The applicant ’s bus was seized and was entrusted to a security guard .

In a judgment of DATE ORG imposed on X and Y a sentence , negotiated with the prosecution , of DATE and CARDINAL months’ imprisonment , suspended . Under LAW no . CARDINAL of DATE , as amended by LAW no . CARDINAL of DATE , the court ordered the confiscation of the bus .

On DATE the applicant requested the return of his vehicle . He pleaded his good faith , declaring that he was not aware of the fact that X and Y had used his bus to commit an offence .

In a decision of CARDINAL DATE ORG rejected the applicant ’s application . It observed that in the light of the principles of the LAW and by analogy with what was provided in the general provision on confiscation ( LAW ) LAW no . CARDINAL of DATE was to be interpreted as excluding any deprivation of property where the object seized belonged to a person not linked to the offence ( se la cosa appartiene a persona estranea PERSON ) . It noted that in the case concerned the applicant had produced documents establishing that he was the owner of the bus seized . However , he had not duly proved his good faith , since there was at least a doubt about his participation in the offence committed by NORP and Y. In that connection ORG noted that the rental agreement between the applicant and PERSON indicated that the bus was to be used “ to take passengers abroad ” , a fact which did not exclude the possibility that the owner was aware that the vehicle might be used for unlawful purposes . Moreover , CARDINAL dates ( DATE and DATE ) appeared at the end of the document , so that it could not be asserted with certainty that the agreement had existed before the date of the offence ( DATE ) . Lastly , the applicant had not proved that vehicle hire was part of his normal occupation . In view of the use that had been made of it , ORG considered that the vehicle ’s availability constituted a danger , and that justified its confiscation .

On DATE the applicant appealed on points of law . He argued in particular that ORG had wrongly reversed the burden of proof , obliging him to establish that he did not know about the unlawful use of his bus , with any doubt working to his detriment .

On DATE the applicant asked the President of ORG to stay the destruction of his bus pending the decision of ORG . That application was allowed on DATE .

In a judgment of DATE , deposited with its registry on CARDINAL DATE , ORG dismissed the applicant ’s appeal . It observed that a person who had obtained pecuniary advantages as a result of the commission of an offence could not be considered to have had nothing to do with it ( estraneo PERSON ) . However , the case - law of the plenary division of ORG protected “ non - wrongful trust ” ( affidamento incolpevole ) and affirmed the principle that the owner of the confiscated object could always prove his good faith by establishing that by exercising the diligence normally required in such matters he could not have known that his property was to be used illegally , and that he had done everything in his power to prevent such use . But ORG had correctly taken the view that the applicant had not adduced the evidence in question , regard being had in addition to the fact that the local situation , characterised by frequent cases of clandestine immigration , called for special diligence on the part of the owner of a vehicle intended to take passengers abroad .

On DATE the applicant ’s bus was destroyed .


The applicant , Y , born in DATE and resident in GPE , is a NORP citizen of NORP origin . He is represented before the Court by PERSON Ekman , resident in GPE .

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

The applicant claims that he has been persecuted in his country of origin as follows :

The applicant is a well - known writer and a poet in his home town Malikija , GPE . He has been subjected to persecution on grounds of his political opinion and ethnic background . He is a member of ORG in GPE , GPE , which aims at guaranteeing human rights to the NORP people and at having their land returned to them . The applicant has produced anti - government material , such as posters and poems .

In DATE he was questioned by ORG for the first time , having recited his poems at a party . He was issued with a warning .

On DATE he was arrested as a suspect for anti - governmental activities . The arrest lasted DATE during which the applicant was tortured ; he was blindfolded , forced to sit in a car wheel and beaten with a weapon . He was set free in the absence of evidence on the alleged activities , but his friend is still detained .

In DATE he was arrested again , having attended a secret conference arranged by ORG . The arrest lasted DATE during which time he was denied sleep and got only a minimum amount of food . The above mentioned torture was repeated . The applicant ’s brother was arrested at the same time . The applicant was told that his brother became ill while in detention and died , but he suspects that the brother , who was a district leader of the party , was killed . Since DATE the applicant has been questioned many times and ORG has threatened that he will be killed or imprisoned , if he does not change his views and inform on his friends . The applicant claims that there is a warrant for his arrest in GPE and he fears that he will face at least five years’ imprisonment , if he returns to GPE . He argues that also the mere fact that he has sought asylum abroad will get him arrested .

The applicant left GPE in DATE and lived in GPE in DATE . While pursuing studies in the NORP language in DATE , he was politically active providing PERSON with his texts on the conditions in GPE . He is convinced that ORG is aware of his activities in GPE .

The applicant returned to GPE in DATE and faced similar problems as described above . DATE he returned to GPE .

The applicant was able to enter GPE in DATE and leave GPE again in DATE since he paid the airport police MONEY ( ORG ) . He travelled via GPE to GPE and arrived in GPE on DATE . He applied for asylum DATE . He did not present any travel documents and he had only a copy of his NORP passport on him . The applicant claims that he bought a false NORP passport in GPE for CARDINAL . He claims that he gave his NORP passport to a fellow passenger on the bus to GPE , a NORP woman , who promised to send the passport to his girlfriend in GPE . The applicant kept only a copy of the passport . He promised to bring the original passport to the NORP authorities as soon as his girlfriend returned it to him .

The applicant ’s application for asylum and a resident permit was refused by ORG ( ulkomaalaisvirasto , utlänningsverket ) on DATE and an order was issued for his removal to GPE . ORG found , inter alia , that the applicant ’s identity had not been established , that he had not presented any travel documents and that he had not submitted any medical certificates concerning the alleged assaults . During the questioning on arrival in GPE , the applicant did not allege that he was forced to flee to GPE in DATE . The applicant had not given account for his reasons for returning to GPE in DATE , although he claimed that there was a warrant for his arrest . ORG found that it is not credible that a persecuted person , who had been issued an arrest warrant , would be allowed to leave the country . According to the applicant , he had not been arrested since DATE . Moreover , it was not credible that the NORP authorities would take such an interest in someone who read his poems on the radio in GPE that there would be a warrant for his arrest . The mere fact that the applicant belonged to the NORP minority did not constitute a ground for granting him asylum .

On DATE ORG ( hallinto - oikeus , förvaltningsdomstolen ) , having held an oral hearing , rejected the applicant ’s appeal , finding that the story about his reasons for leaving GPE in DATE was vague and superficial . It noted that he was able to visit GPE in DATE and in DATE and that he managed to leave the country in DATE using his own passport . His activities in GPE and GPE , i.e. writing poems and texts about the NORP people ’s situation , can not be considered to be such that he would be in need of international protection . ORG found no evidence that the applicant would be considered an anti - government activist by the NORP authorities . There were CARDINAL NORP in GPE and the mere fact that the applicant was a NORP did not mean that he was in need of international protection . The court concluded that the applicant would not , on his return to GPE , face any individual risk of inhuman treatment .

A request for application of Rule DATE was refused by ORG on DATE .

According to written medical statements submitted by the applicant to ORG , the arches of his feet are low , his ankle joints are “ loose ” , his big toes are in a faulty position and his left calf does not strain normally . Moreover , his feet do not “ roll ” normally when walking . The physiotherapist considered that there was no contradiction between the applicant ’s symptoms – pain in his feet and legs etc . – and the finding . Moreover , the applicant has undergone a discussion therapy but is still suffering from depression and anxiety .

The applicant has also submitted a certificate issued on DATE in Bad Salzuflen , GPE , by ORG in GPE , GPE , according to which he is a member of the above - mentioned ORG and that his life will be in danger if returned to GPE . The applicant has also submitted letters , apparently written by people who know him , according to which his life will be in danger if he returns to GPE , as he is a NORP and as he has applied for asylum abroad .

On DATE ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) refused the applicant leave to appeal against ORG decision . It is not known whether a date has been set for the applicant ’s removal to GPE .


Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property

Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE .

He is a GPE pensioner .

On DATE the ORG of GPE ( “ the ORG ” ) granted his claim against ORG and recovered arrears in respect of disability and food allowances in the amount of MONEY ( RUB ) and in the amount of RUB CARDINAL respectively . ORG held that as of DATE the applicant had been entitled to a certain increase in his disability allowance , and that as of DATE he had been entitled to yet another increase in disability and food allowances . ORG further held that as of DATE the applicant was entitled to a DATE disability allowance in the amount of RUB MONEY and to a DATE food allowance in the amount of RUB MONEY . Furthermore , ORG held that in future , the DATE disability and food allowances had to be increased in line with the minimum subsistence amount if its index of growth attained an inflation rate of PERCENT . The judgment acquired legal force on DATE .

According to the ORG , the judgment of DATE was enforced in full . The final payment under that judgment was made in DATE .

The applicant submitted that the judgment of DATE remained without enforcement in the part concerning the payment of a DATE food allowance .


Violation of Article 6 - Right to a fair trial (Article 6 - Constitutional proceedings;Article 6-1 - Access to court)

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria

On DATE the applicant , in his capacity as an architect , concluded a contract with ORG ( Colné riaditeľstvo PERSON republiky ) in which he agreed to produce project documentation for a border crossing between GPE and GPE in return for a fee .

On DATE the ORG brought a civil action against the applicant for late completion of the documentation , seeking an order for the payment of a contractual penalty as well as late - payment interest on that penalty .

On DATE the Bratislava V ORG ( ORG súd ) dismissed the action , but its judgment was quashed by ORG ( PERSON súd ) following an appeal ( odvolanie ) by the applicant . At the same time , the case was remitted to ORG for re - examination .

On DATE ORG allowed the action . It found that the applicant and the defendant had agreed on a contractual penalty amounting to PERCENT of the agreed fee per day of delay on the part of the applicant . It also found that the deadline for the applicant to fulfil his obligations under the contract had been DATE and that the applicant had not done so until DATE . The applicant appealed .

On DATE ORG declared the appeal inadmissible as having been lodged outside the statutory appeal period . It applied a legal fiction under LAW ( Law no . PERSON . , as applicable at the relevant time ) , pursuant to which the commencement of the appeal period in the given circumstances is determined with reference to DATE after a written copy of the contested decision has been deposited for the appellant at the local post office , irrespective of when the decision is actually received by the appellant ( see paragraph CARDINAL below ) . The applicant challenged the decision of ORG by way of an appeal on points of law ( dovolanie ) to ORG ( Najvyšší súd ) .

The applicant ’s appeal on points of law per se had no suspensive effect and , consequently , the judgment of DATE was considered final and binding ( see section D on “ Enforcement ” below ) .

NORP However , on DATE , ORG made a separate ruling suspending the effects of the judgment of DATE pending the outcome of the appeal on points of law .

On DATE ORG , having found that the statutory requirements for applying the above - mentioned legal fiction had not been met , quashed the decision of DATE and remitted the applicant ’s appeal against ORG judgment of DATE to ORG .

It was then incumbent on ORG to re - examine the applicant ’s appeal against the judgment of ORG of DATE .

On DATE ORG upheld the judgment of DATE in so far as the applicant had been ordered to pay the contractual penalty . However , it reversed the ruling that the applicant should pay interest on the contractual fine . It held that a contractual fine and latepayment interest had both the nature of a sanction and that cumulating these CARDINAL sanction mechanisms was excluded by the nature of things .

A written version of ORG judgment of DATE was received by ORG on DATE . It was then incumbent on ORG to ensure that the judgment was served on the parties in person ( do vlastných rúk ) .

According to the law , once the judgment of DATE had been served on both parties , the matter was resolved with final and binding effect ( právoplatnosť ) .

The actual service of the written version of the judgment of DATE was carried out as follows :

On CARDINAL and DATE the postal service was unable to reach the applicant ’s lawyer . Accordingly , on the latter date , a written version of the judgment was deposited at the local post office and a notice to that effect was left in her mailbox .

On DATE the judgment was served on ORG .

On DATE the applicant ’s lawyer collected the applicant ’s copy of the judgment from the post office .

As to the effective service of the judgment of DATE on the applicant , the Government have submitted DATE and it has not been disputed by the applicant – that it occurred on DATE , by virtue of the legal fiction ( see paragraph CARDINAL above and paragraph CARDINAL below ) , DATE after the deposition of the judgment at the local post office ( see the preceding paragraph ) .

The Government have also submitted DATE this has not been disputed by the applicant either – that the judgment actually became final and binding on DATE of its effective service on the last of the parties , that is to say the applicant , on DATE .

On DATE , on the applicant ’s request , ORG stamped ( doložka právoplatnosti ) his copy of the judgment of DATE certifying that , together with ORG judgment of DATE , it had become final and binding on “ DATE ” .

On DATE , ORG provided ORG ( Ústavný súd ) on its request ( see paragraph CARDINAL below ) , with a different copy of the judgment of DATE with a similar stamp certifying that , together with the judgment of ORG of DATE , it had become final and binding on DATE .

The applicant then lodged a complaint under LAW no . PERSON . , as amended ) with ORG ( Ústavný súd ) .

As to the date of commencement of the DATE period for lodging the complaint ( see paragraph CARDINAL below ) , the applicant took as decisive the date stamped on his copy of the judgment of DATE , that is to say “ DATE ” ( see paragraph CARDINAL above ) , assuming that the reference to DATE was an obvious typographical error actually meaning DATE , and submitted his stamped copy of that judgment to ORG .

Accordingly , the applicant dated and mailed his complaint on CARDINAL and DATE , respectively . The complaint was received at ORG on DATE .

NORP The applicant relied on LAW and challenged ORG judgment of DATE as being contrary to his right to a fair hearing and the general prohibition of discrimination . In substance , the applicant contested the assessment of the facts and the application of the law by the ordinary courts .

On DATE ORG declared the complaint inadmissible . It noted that it had procured of its own initiative a copy of the contested decisions with a stamp concerning their final and binding effect . This stamp indicated that the matter had been resolved with final and binding effect on DATE ( see paragraph CARDINAL above ) .

As the applicant ’s constitutional complaint had only been mailed on DATE , it had been lodged outside the DATE time - limit laid down in section CARDINAL(CARDINAL ) of LAW ( Law no . CARDINAL/CARDINAL Coll . , as amended ) ( see paragraph DATE below ) .

The applicant subsequently complained to the President of ORG that , according to his stamped copy , the challenged decisions had become final and binding on DATE , the mention of DATE ( see paragraph CARDINAL above ) being an obvious typographical error actually meaning DATE . He had lodged his constitutional complaint on DATE and had therefore met the deadline .

In a letter of DATE the President of ORG notified the applicant that the DATE time - limit for filing his constitutional complaint had commenced on DATE when the contested decisions had become final and binding . It had accordingly ended on DATE . The applicant ’s complaint had only been mailed on DATE and had therefore failed to meet the deadline . Nevertheless , if the applicant had sustained any damage as a result of the incorrect information in the stamped copy he had received , it was open to him to claim compensation under LAW ( Law no . PERSON . , as amended ) .

On DATE a lawyer lodged a petition on behalf of ORG with a judicial enforcement officer ( súdny exekútor ) for enforcement of the judgment of DATE against the applicant .

The enforcement proceedings were first authorised , but eventually discontinued in view of ORG judgment of DATE ( see paragraph CARDINAL above ) .

Nevertheless , on CARDINAL DATE , while the enforcement was still pending , ORG ordered the applicant to pay the court fees for objections ( námietky ) that he had lodged earlier .

On DATE ORG upheld ORG decision of CARDINAL DATE following the applicant ’s appeal .

On DATE ORG declared inadmissible a complaint under LAW , in which the applicant had relied on Articles CARDINAL § CARDINAL and CARDINAL of the LAW and had challenged the decision on fees for his objections as being arbitrary and contrary to his rights to a fair hearing and an effective remedy .

ORG found that the applicant ’s duty to pay the court fees had its legal basis in section CARDINAL ) of LAW and that the contested decision had been legally and factually correct .

Article CARDINAL of the LAW , subsumed under LAW ( dealing with ORG ) of Part ( PERSON ) CARDINAL ( dealing with ORG ) , provides :

“ CARDINAL . The Constitutional Court shall decide on complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court .

NORP If ORG finds a complaint justified , it shall deliver a decision stating that a person ’s rights or freedoms as set out in paragraph CARDINAL have been violated by a final decision , specific measure or other act and shall quash such decision , measure or act . If the violation that has been found is the result of a failure to act , ORG may order [ the authority ] which has violated the rights or freedoms to take the necessary action . At the same time it may remit the case to the authority concerned for further proceedings , order such authority to refrain from violating the fundamental rights and freedoms ... or , where appropriate , order those who have violated the rights or freedoms set out in paragraph CARDINAL to restore the situation to that existing prior to the violation .

NORP In its decision on a complaint ORG may grant appropriate financial compensation to the person whose rights under paragraph CARDINAL have been violated . ”

Section CARDINAL(CARDINAL ) of LAW provides that a complaint to ORG must be lodged within DATE of the date on which the decision in question has become final and binding or on which a measure has been notified or notice of other interference with the complainant ’s interests has been given . As regards measures and other types of interference , this period commences when the complainant has a reasonable opportunity to become aware of them .

NORP Under section CARDINALa , the provisions of LAW and LAW are to be applied accordingly in proceedings before ORG , except where otherwise provided or where the nature of the matter at hand precludes their application .

The service of summonses and other documents is regulated by Articles CARDINAL et seq . of the Code of Civil Procedure . Documents are to be served in person if so provided by statute or so ordered by a court ( Article CARDINAL § CARDINAL ) .

If the addressee of a document to be served in person can not be reached , even though he or she stays at the address provided , the deliverer must notify the addressee in an appropriate manner when a new attempt at service takes place . If the new attempt at service fails , the deliverer must deposit the document at a post office or municipal office and advise the addressee accordingly in an appropriate manner . If the addressee does not collect the document within DATE of its deposition , DATE of that period is deemed to be the date of effective service , irrespective of whether the addressee has actually learned of the deposition ( LAW , as applicable at the relevant time ) .

The relevant provisions of LAW are summarised , for example , in the ORG ’s judgment in the case of GPE and PERSON v. GPE ( no . CARDINAL , § § DATE , DATE ) .


The applicant , Mr PERSON , is a GPE national , who was born in DATE and he lives in GPE . He is represented before the ORG by Mr J. Mackenzie , a solicitor practising in PERSON - on - GPE .

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

At the relevant time , the applicant was a Lance Corporal in ORG . On DATE he was arrested by the civilian police who alleged that he had been drunk and disorderly . He was taken by the police to his army barracks and handed over to the military authorities .

On DATE he appeared before his commanding officer and was charged with drunkenness pursuant to section CARDINAL(CARDINAL ) of the Army Act DATE ( an offence which carried a maximum potential sentence of CARDINAL years’ imprisonment ) .

He subsequently appeared before that officer on CARDINAL and DATE and , on the latter date , he elected to be tried by court - martial as opposed to summary trial by his commanding officer . The commanding officer had the power to award a maximum of CARDINAL days’ imprisonment on summary trial , although the Government submit that the commanding officer ’s sentence following a conviction for drunkenness would generally have been limited to a fine , a reprimand , “ a minor punishment ” or a reduction to the ranks .

Having opted for trial by court - martial , on DATE the applicant ’s case was referred to a higher authority and , in turn , on CARDINAL DATE to ORG . On DATE this authority directed the applicant ’s trial by district court - martial .

In DATE the district court - martial was fixed to begin in DATE . This trial date was postponed pending the outcome of an application by the applicant for leave to take judicial review proceedings concerning his legal aid . The judicial review application was heard in DATE and the court - martial was fixed for DATE , later moved to CARDINAL DATE at the applicant ’s request . The court - martial hearing was again re - fixed ( to allow DATE for the hearing ) for DATE . The applicant was legally represented .

On that date and at the outset of the proceedings , the applicant applied for a stay of the proceedings claiming that the conduct of the prosecuting authorities amounted to an abuse of process . Having heard evidence over DATE , on DATE the Judge Advocate stayed the proceedings as an abuse of process . As to the meaning of abuse of process , he stated that :

“ It is now clear law that the courts have a power to stay proceedings where the continuance of those proceedings against a defendant constitutes an abuse of the court ’s powers ... Put shortly , the court has a general and inherent power to protect its process from abuse . This power must include a power to safeguard an accused person from oppression or prejudice ... The power to stay proceedings for an abuse of process has been said to include a power to safeguard an accused person from oppression or prejudice ( PERSON ) , and has been described as a formidable safeguard , developed by the common law , to protect persons from being prosecuted in circumstances where it would be seriously unjust to do so ( Attorney - General of GPE and GPE v. PERSON [ DATE ] CARDINAL A.C. CARDINAL , PC ) . An abuse of process has been defined as “ something so unfair and wrong that the court should not allow a prosecutor to proceed with what is in all other respects a regular proceeding ” ( PERSON v. NORP [ DATE ] CARDINAL A.C. DATE , PC ) . ”

The Judge Advocate found , in the first place , that the failure to disclose to the applicant video evidence of the incident leading to the applicant ’s arrest , when he appeared before his commanding officer on DATE , was a breach of the applicable rules of procedure of such magnitude as to render the proceedings void . Secondly , he found that , on the evidence , the applicant ’s election to be tried by court - martial had not been a free and valid one . As regards these CARDINAL matters the Judge Advocate concluded :

“ True , there has been no illegality in the sense of a breach of the law , but there has been a very fundamental breach of the principles under which criminal justice is dispensed . True , [ the applicant ] has not had any other or more serious charge preferred against him , but he has had a long and no doubt anxious wait , undoubted expense and , more significantly , I could not guarantee that the court which has been ordered to try him would not punish him more severely than the [ commanding officer ] would have done if he was convicted .

Furthermore , I can not ignore the collected impact of the conduct of [ the commanding and other officers ] , wittingly or unwittingly , in pressurising [ the applicant ] to accept the [ commanding officer ’s ] award and by inference his guilt . For DATE now the courts have fought strenuously to safeguard accused persons from being pressurised into pleading guilty and have rigorously excluded evidence obtained as a result of such pressure . These courts should not countenance service personnel being sent for trial as a result of such pressure . To do so would be to allow their process to be abused . It is for these reasons that I hold that the continuance of the proceedings against [ the applicant ] would be an abuse of process . ”

Thirdly , the Judge Advocate found , as regards the fact that the prosecution had taken and served on the defence a statement from the applicant ’s defending officer :

“ I accept that ... what happened in this case was no breach of legal privilege , if indeed , legal privilege attaches to a defending officer ... I accept that there was no substantial prejudice to the defence case . I accept that no one in the ORG Prosecuting Authority proper knew that [ he ] was the defending officer until much later ... I accept that identity would not have been an issue in the case . None of these things can have lessened the perception of [ the applicant ] as to the chances of justice from the military system when he became aware that his defending officer was to be called as a prosecution witness against him . It was an irregularity of such magnitude that in itself it justifies me in holding that the continuation of these proceedings would be an abuse of the process of this court . ”

The Judge Advocate went on to recommend that the applicant ’s legal aid contributions and any other costs associated with the proceedings should be reimbursed to him .

On DATE the applicant instituted proceedings claiming damages against the civilian police and ORG for matters arising out of his arrest by the police and the conduct of the proceedings against him by the military authorities . The respective defences were filed in DATE . The proceedings against the police were later settled by the payment to the applicant of GBP CARDINAL in damages and costs . The current position as regards the proceedings against ORG is not known .

All criminal courts , including courts - martial , have a wide common law jurisdiction to stay proceedings on the grounds of abuse of process . The application to stay proceedings is in the nature of a “ plea in bar ” , the more conventional “ pleas in bar ” being autrefois convict or autrefois acquit . A “ plea in bar ” operates to prevent a case proceeding to trial and , if raised , is ordinarily dealt with before the accused enters a plea to the charge .

The ability of a trial judge to stay a criminal prosecution was first confirmed by ORG in the case of PERSON v. Director of Public Prosecutions [ DATE ] GPE CARDINAL . Lord PERSON acknowledged the ability of a criminal court “ to prevent a trial from taking place ” in the exercise of its “ residual discretion to prevent anything which savours of abuse of process ” ( at p. CARDINAL ) . In the case of Director of Public Prosecutions v. PERSON [ DATE ] DATE , Lord Salmon considered this discretion to be of “ great constitutional importance ” and a power which “ should be jealously preserved ” .

Lord PERSON defined the discretion to stay proceedings as an abuse of process , in the case of Attorney - General of GPE and GPE v. PERSON [ DATE ] CARDINAL A.C. CARDINAL , as :

“ ... a formidable safeguard to protect persons from being prosecuted in circumstances where it would be seriously unjust to do so ” .

In PERSON R [ DATE ] CARDINAL A.C. DATE , Lord PERSON described an abuse of process as :

“ ... something so unfair and wrong that the court should not allow a prosecutor to proceed with what is in all respects a regular proceeding ” .

The broad basis of this jurisdiction was confirmed by ORG in NORP v. PERSON ORG , ex parte PERSON [ DATE ] CARDINAL A.C. DATE , where it was held that proceedings may be stayed not only where a fair trial is impossible , but also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place .

The case law was summarised by ORG in PERSON DATE ] CARDINAL Cr . App . CARDINAL ( see Lord Justice PERSON , at p. CARDINALG-CARDINALA ) :

“ The jurisdiction to stay can be exercised in many different circumstances . Nevertheless CARDINAL main strands can be detected in the authorities :

( a ) NORP cases where the court concludes that the defendant can not receive a fair trial ;

( b ) cases where the court concludes that it would be unfair for the defendant to be tried ” .

Matters considered to constitute an abuse of process include :

– unjustifiable delay which results in the defendant suffering serious prejudice to the extent that no fair trial can be held ;

– the trial of a defendant after extensive and prejudicial pre - trial publicity ;

– the trial of a defendant after the loss or destruction of relevant material by the prosecution ;

– where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place because the prosecution have been guilty of investigative impropriety ; and

– where the prosecution have otherwise been guilty of manipulation or misuse of the process of the court .

There is no right for the prosecution to appeal against an order for a stay of a ORG trial or court - martial proceedings on the ground of abuse of process . The intention behind such a stay is that there should not be a trial in the future .

There is no possibility of lifting a stay where the stay has been granted on the grounds that , due to the unconscionable conduct of the prosecuting authorities and even though the accused could receive a fair trial , it would nonetheless be unfair for the accused to be tried . Such a case could not be re - opened since it would always be an abuse of process to try the accused .

The applicant does not dispute the ORG ’s submission that there are no known cases where a stay made on the grounds of abuse of process has been lifted to allow a prosecution to continue or where the prosecution has even applied for such a stay to be lifted . In NORP v. ORG ex p. PERSON [ DATE ] CARDINAL WLR CARDINAL , Lord Justice PERSON commented that a decision on an application to stay on grounds of abuse of process determines :

“ ... whether there ever should be a trial ... [ A ] stay on grounds of abuse of process contemplates that there never will be a trial ... It matters not that there are circumstances in which a stay on grounds of abuse of process might be revoked or lifted : the crucial point is that such a stay -- a direction that there shall be no trial -- is intended to be final . ”


Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano

The applicant was born in DATE and lives in GPE .

On DATE the parliament passed the PERSON on disclosing work for or service in the ORG ’s security services or collaboration with them DATE by persons exercising public functions ( ustawa o ujawnieniu pracy lub służby w organach bezpieczeństwa państwa lub współpracy z nimi w latach DATE osób pełniących funkcje publiczne ; “ the DATE LAW ” ) . It entered into force on DATE . Persons falling under the provisions of the DATE LAW , i.e. candidates or holders of public office such as ministers and members of parliament , were required to declare whether or not they had worked for or collaborated with the security services during the communist regime . The provisions of the LAW extended to , inter alia , judges , prosecutors , advocates and members of the supervisory boards and boards of directors of the “ NORP ORG ” and “ NORP ORG ” as well as their local branches .

On DATE the applicant , a member of the supervisory board of the Koszalin Branch of ORG , ORG ) declared that he had not collaborated with the communistera secret services .

In DATE the applicant became a member of the board of directors of the same radio ( GPE ) .

In DATE the Commissioner of ORG ( PERSON ) informed the applicant that he had doubts as to the truthfulness of his lustration declaration .

On DATE ORG ( ORG ) decided to institute lustration proceedings against the applicant following a request made by the Commissioner on the grounds that the applicant had lied in his lustration declaration by denying that he had cooperated with the secret services .

ORG held hearings on DATE , DATE and DATE and DATE . The applicant , who was not represented , attended the hearings although he lived in GPE , QUANTITY away from the court . The hearings were not open to the public .

On DATE ORG , acting as the firstinstance lustration court , found that the applicant had submitted an untrue lustration declaration since he had been an intentional and secret collaborator with the ORG ’s secret services . The court established that DATE the applicant , at that time a student at ORG , had been a secret collaborator ( ORG , tajny współpracownik ) and had signed a socalled collaboration commitment ( zobowiązanie do współpracy ) . The court based its findings on the statements made by PERSON ORG , an officer of ORG ( PERSON , “ the ORG ” ) who had recruited him . The court established that the applicant had met with Mr A.W. several times and had once received financial payment . All the documents collected in the case were classified as confidential and could be consulted by the applicant in the secret registry of the lustration court .

The applicant appealed against the decision . He submitted that he had never collaborated with the ORG and had not passed any information to it . He contested the authenticity of the documents , the originals of which had been destroyed and only microfilms of which had been preserved .

On DATE ORG , acting as the secondinstance lustration court , upheld the impugned judgment . The court established that the evidence in the case had not been extensive but had obviously pointed to the fact that the applicant had been an intentional and secret collaborator with the ORG .

On DATE ORG ( ORG ) dismissed the applicant ’s cassation appeal as being manifestly illfounded . The applicant was barred from holding public office for DATE in application of the CARDINAL LAW .

The relevant law and practice concerning lustration proceedings in GPE are set out in the ORG ’s judgment in the case of ORG v. GPE , no . CARDINAL/CARDINAL , § CARDINAL , ORG ORG


Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

On DATE published on its first page the title of an article due to appear in a future issue together with a summary of the article . The title of the summary was “ The red millionaires ” and it was accompanied by a big picture of the leader of ORG parliamentary group , PERSON , wearing a top hat .

The summary read as follows :

“ The NORP want to sell off piece - meal the PERSON canned food plant

The PERSON plant is the only undertaking in the region which is still alive . The rest of the plants have been sold off piece - meal . Since the NORP came to power , a campaign to liquidate this plant has commenced . Certain members of ORG wish to dismantle it and sell it off piece - meal . Sources from the plant told our newspaper that the member of ORG , who is responsible for PERSON , with the support of the main creditors ... is behind this dirty affair . Having great influence and parliamentary immunity , he wants to fill his pockets following the sale of the plant .

At present the plant is not operating and is making substantial losses , and this situation is being used to maximum advantage by this MP . Since the plant is not operating and is not profitable , the shareholders want to liquidate it . The problem is that the plant could operate if the shareholders did not hinder the plant 's staff .

( A detailed article about this affair will be published in the DATE issue on page CARDINAL ) ” .

DATE , on DATE , Mr ORG brought civil defamation proceedings against the newspaper and against the author of the article . He argued , inter alia , that :

“ ... the defendants disseminated information which is defamatory of me as a citizen , an MP and as the leader of ORG parliamentary group ...

... the article , which is accompanied by my picture , contains the following defamatory statements : ' The NORP want to sell the PERSON canned food plant off piece - meal ' ... ' Since the NORP came to power , a campaign to liquidate this plant has commenced . Certain members of ORG wish to dismantle it and sell it off piece - meal ' .

By publishing this article , the defendants , acted in bad faith , misinforming public opinion about my actions in my capacity as MP and also about the activity of the ORG parliamentary group which I represent , accusing us of destroying an enterprise which is part of the national economy . ”

On DATE Flux published the article announced in its CARDINAL DATE issue . The article was based on the account of ORG , the deputy Chief Executive Officer of the PERSON canned food plant , and reported on events concerning alleged attempts by a NORP parliamentarian ( PERSON ) , to have the plant declared bankrupt and sold off . It stated , inter alia , that the parliamentarian had made use of ORG and other ORG bodies for that purpose and that he ( PERSON ) had told ORG that his actions were supported by the ORG parliamentary group . According to ORG , CARDINAL other plants from the region had already been declared bankrupt and sold off in the same manner .

On DATE Judge GPE , who was also President of ORG , ruled in favour of Mr Stepaniuc , relying on the following grounds :

“ From the content and meaning of the article [ of DATE ] it is clear that ORG and the author made defamatory and false accusations against Mr ORG , in particular to the effect that he , in his capacity as MP and leader of the ORG parliamentary group , had engaged in actions directed at destroying enterprises within the national economy of GPE for personal gain .

In addition , the article was accompanied by a picture of the plaintiff .

The defendants did not present in the article any proof of the truthfulness of their accusations .

In such circumstances , the court considers it necessary to note that any article should be sincere , correct and contain only truthful revelations which correspond to reality and are not based on rumours , anonymous letters or inadequately checked information from unreliable sources .

The defendants , however , did not abide by common sense and unjustly defamed the plaintiff .

Accordingly , the defendants clearly overstepped the limits of constructive criticism of public persons necessary in a NORP society .

In the court 's view , the fact that the plaintiff 's name was not given in the article is not conclusive , since his picture and the meaning and content of the article make it clear that it is directed against him . Consequently , he was exposed to mental and moral suffering which should be remedied by the defendants .

In establishing the compensation to be paid for non - pecuniary damage , the court shall take into consideration the considerable vehemence of the attack against PERSON , the large readership of the newspaper and the degree of suffering endured by the plaintiff .

The court should also take into consideration the public functions occupied by Mr Stepaniuc , that of MP and leader of a parliamentary group , which should increase the award for moral damage . Therefore the court considers it necessary to award the plaintiff the maximum amount of compensation provided for by the law . ”

The court found the statement : “ The NORP want to sell the PERSON canned food plant off piece - meal ” to be defamatory and ordered the newspaper and the author to pay the plaintiff CARDINAL Moldovan Lei ( MDL ) ( the equivalent of QUANTITY ( ORG ) at the time ) and MDL CARDINAL respectively . It further ordered the newspaper to issue an apology within DATE . The defendants were also ordered to pay the court fees .

NORP The newspaper lodged an appeal against the judgment in which it argued , inter alia , that the article had been directed against GPE , another MP from the ORG parliamentary group and not against Mr ORG . The latter 's picture had been published in order to make it easy to identify the ORG parliamentary group , since he was its President .

NORP The applicant also argued that the impugned article was only an abstract of an article to be published subsequently and that the statement found by the first - instance court to be defamatory was merely a subjective conclusion drawn by the author based on the information published in the main article . The applicant further submitted that ORG had also instituted defamation proceedings against the newspaper and requested that the CARDINAL actions instituted by Mr Stepaniuc and by ORG be joined and examined together .

The applicant finally argued that Judge PERSON lacked independence and impartiality because he was a friend of Mr ORG and had been appointed President of ORG by the ORG parliamentary group . The majority of the defamation cases between PERSON and Mr Stepaniuc were examined by him personally and his decisions were stereotyped . In other defamation cases between LOC and representatives of the Government , Judge PERSON had always ruled in favour of the latter and had awarded them the maximum amount provided for by law .

On DATE the ORG dismissed the appeal as being unfounded . It did not take into consideration the article published on DATE .

NORP The newspaper lodged an appeal on points of law , relying on the same grounds as in its appeal and added , inter alia , that the impugned article merely reproduced the opinion of the management of the PERSON canned food plant .

On DATE ORG dismissed the appeal . It stated , inter alia , that it was clear that the information published in the article about Mr Stepaniuc did not correspond to reality ; moreover , his picture had been attached to the article .

It appears that the defamation action brought by ORG was struck out due to ORG 's failure to appear before the court .

The relevant provisions of LAW in force at the material time read :

Article CARDINAL . Protection of honour and dignity

“ ( CARDINAL ) Any natural or legal person shall be entitled to apply to the courts to seek the withdrawal of statements which are damaging to his or her honour and dignity and do not correspond to reality , as well as statements which are not damaging to honour and dignity , but do not correspond to reality .

( CARDINAL ) When the media body which circulated such statements is not capable of proving that these statements correspond to reality , the court shall compel the publishing office of the media body to publish , not later then DATE after the entry into force of the judicial decision , a withdrawal of the statements in the same column , on the same page or in the same programme or series of broadcasts . ”

LAW Compensation for moral damage

“ ( CARDINAL ) The moral damage caused to a person as a result of circulation through the mass media or by organisations or persons of statements which do not correspond to reality , as well as statements concerning his or her private or family life , without his or her consent , shall be compensated by way of a pecuniary award . The amount of the award shall be determined by the court .

( CARDINAL ) The amount of the award shall be determined by the court in each case as an amount equal to DATE minimum wages if the information has been circulated by a legal person and DATE minimum wages if the information has been circulated by a natural person . ”

The Freedom House Organisation DATE country report for GPE , insofar as relevant , reads as follows :

“ ... In DATE , the principle of the rule of law was under challenge in GPE . This was evidenced by the rising number of cases filed by NORP citizens in ORG and actions taken by the ORG and government to suppress judicial independence . Also affecting the fragile balance of power among the legislative , executive , and judicial branches of government in DATE were a series of judicial nominations based on loyalty to the ruling party , the dismissal of the ombudsman , and attempts to limit the independence of ORG .

In DATE , ORG ( MAJ ) signaled that the government had started a process of “ mass cleansing ” in the judicial sector . CARDINAL judges lost their jobs , including PERSON , a member of the court of appeals , and PERSON , the chairman of ORG . In the case of PERSON , the move was likely revenge for decisions by the court of appeals that favored ORG and local oil importers over the government .

The situation worsened when President PERSON refused to prolong the mandates of CARDINAL other judges . The ORG conveyed a statement on the matter to ORG rapporteurs who were in GPE at the time on a fact - finding mission . The government instructed ORG to delay court decisions related to the payment of material damages by state institutions . In DATE , PERSON , chairman of ORG , stated at a press conference that senior government officials were pressuring judges to issue rulings that favored government bodies .

In DATE , President PERSON promulgated a constitutional amendment giving him the right to appoint judges . Under the amendment , the head of state will appoint the chairs of courts , their deputies , and lower - ranking judges for DATE terms at the recommendation of ORG . ORG will appoint for DATE terms members of ORG , including the chief of ORG , the prosecutor - general , and the minister of justice . These changes provide evidence that the country 's NORP leaders are weakening judicial independence and subordinating this branch of governance to their authority ... ”

ORG DATE country report on GPE read as follows in its relevant parts :

“ ... The LAW provides for an independent judiciary ; however , official pressure and corruption of judges remained a problem .

There continued to be credible reports that local prosecutors and judges extorted bribes for reducing charges or sentences .

Following a major reorganization in DATE , the judiciary consists of CARDINAL levels : lower courts , courts of appeals , and ORG . A separate ORG has exclusive authority in cases regarding the constitutionality of draft and final legislation , decrees , and other government acts . While ORG was generally regarded as fair and objective , observers frequently charged that other courts were corrupt or politically influenced .

The LAW authorizes the President , acting on the nomination of ORG , to appoint judges for an initial period of DATE . Before being reappointed , judges must undertake specialized judicial training and pass a test evaluated by ORG . Political factors have played a large role in the reappointment of judges . ”


Violation of Art. 10;Preliminary objections rejected (non-exhaustion of domestic remedies, estoppel);Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

John Freeland;Luzius Wildhaber;Paul Mahoney

The applicant is a NORP citizen who was born in DATE and lives in GPE .

At the material time , the applicant was the major shareholder in ORG ve PERSON , a NORP limited liability company which owns a DATE review entitled Haberde Yorumda Gerçek ( “ ORG and Comments ” ) , published in GPE .

The issue dated DATE contained a news report providing information given at a press conference by a delegation - which included CARDINAL former NORP parliamentarians PERSON and PERSON , Lord PERSON and a member of ORG - on its visit to Şırnak village , in the wake of tensions in the area .

The news report included an article reporting the Governor of Şırnak as having told the delegation that the Şırnak Chief of Police had given an order to open fire on the people .

It further rendered a dialogue between PERSON , PERSON and PERSON , a ORG Commander .

The relevant part of the report read :

“ ORG Commander PERSON :

‘ Your blood would not quench my thirst … ’

While the NORP delegation and ORG MP PERSON , PERSON MP PERSON and GPE Governor PERSON managed to persuade the people of GPE , which was blockaded by the security forces , after talking to them for a while and telling them that permission had been obtained for them to get the bodies of their dead , an interesting conversation took place between ORG Security Director PERSON and ORG Commander ORG GPE .

The conversation between the MPs PERSON and PERSON on the one hand and Colonel PERSON on the other hand was recounted by PERSON as follows :

Colonel PERSON : What business do you have here ? There had been nobody here until you arrived . You have come and stirred things up again .

PERSON : No , Sir . The situation had been extremely tense before we arrived . We have come with the District Governor and are trying to calm down the tension here . Here is the District Governor .

Colonel PERSON : No , that ’s not true . We saw when we were flying by helicopter that there was nobody here before . People gathered when you arrived .

Orhan Doğan : No , you can ask the District Governor if you like . ( Meanwhile , ORG PERSON was also being told off . )

Colonel PERSON : Do you know who these dead people are ?

Orhan Doğan : Yes , they are our children , the children of all of us .

Colonel PERSON : No , these are not our children , they are your children .

Orhan Doğan : But my Colonel ...

Colonel PERSON : Do not call me your colonel . I am not your colonel . Your blood would not quench my thirst . You should also be honest and freely admit that my blood would not quench your thirst . Right now I could kill you like a rat . Your death would give us pleasure . Your blood would not quench my thirst .

PERSON : If the problem can be solved by killing us , then here are our people ; let ’s go among them and you kill us and this problem is solved .

Colonel PERSON : No , I would not kill you now . I would kill you after disgracing you in the eyes of the people . ”

On DATE ORG at ORG ( GPE PERSON ) charged the applicant , being the owner of the review , with revealing the identity of officials mandated to fight terrorism and thus rendering them terrorist targets . The charges were brought under LAW DATE ( " the CARDINAL Act " ; see paragraph CARDINAL below ) .

NORP In the proceedings before ORG the applicant denied the charges and advanced the following arguments in his defence . The news report had been published with the aim of informing the public of the events which had occurred during the DATE Newroz celebrations . It had been based on a joint press declaration by former deputies PERSON and PERSON and an NORP delegation , during their visit to south - east GPE . By virtue of the fact that section CARDINAL of the CARDINAL Act contained an absolute prohibition on the disclosure and dissemination of the identity of officials appointed to fight terrorism , it enabled officials to abuse their authority , violate the law and subject citizens to ill - treatment . The right to receive and impart information , including information concerning acts of officials , was fundamental in a NORP society . Section CARDINAL of LAW contravened not only LAW but also LAW .

In a judgment of DATE ORG convicted the applicant under LAW and sentenced him to pay a fine of MONEY . It noted that the news report had contained an allegation to the effect that the Governor of Şırnak had stated to the visiting delegation that the Şırnak Chief of Police had given an order to open fire on the people . It had further affirmed that a gendarme commander had stated to PERSON in PERSON presence " [ y]our death would give us pleasure . Your blood would not quench my thirst " . By having disclosed the identity of these officials , the publication had rendered them targets for terrorist attack .

The applicant appealed , reiterating his defence before ORG . He also argued that the press declaration at issue had already been reported in other newspapers and magazines and that the incriminated news report had added nothing to these .

On DATE ORG dismissed the appeal . It upheld the cogency of ORG assessment of the evidence and its reasoning for rejecting the applicant 's defence .

The relevant provisions of LAW DATE read as follows :

“ It shall be an offence , punishable by a fine of from CARDINAL to MONEY , to announce , orally or in the form of a publication , that terrorist organisations will commit an offence against a specific person , whether or not that person ’s ... identity is divulged , provided that it is done in such a manner that he or she may be identified , or to reveal the identity of civil servants who have participated in anti - terrorist operations or to designate any person as a target .

It shall be an offence , punishable by a fine of from CARDINAL to MONEY , to print or publish declarations or leaflets emanating from terrorist organisations .

Where the offences contemplated in the above paragraphs are committed through the medium of periodicals within the meaning of section CARDINAL of LAW ( Law no . CARDINAL ) , the publisher shall also be liable to a fine equal to MONEY of the income from the average sales for DATE if the periodical appears more frequently than DATE , or from the sales of the previous issue if the periodical appears DATE or less frequently , or from the average sales for DATE of the DATE newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched.CARDINAL However , the fine may not be MONEY . The editor of the periodical shall be ordered to pay a sum equal to CARDINAL the fine imposed on the publisher . ”

The relevant provisions of domestic law governing the organisation and procedure of ORG are quoted in paragraphs CARDINAL of the NORP no . CARDINAL v. GPE judgment , which is being delivered on DATE as the present judgment .