Preliminary objection joined to merits and dismissed (Article 35-3 - Ratione materiae);Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Just satisfaction dismissed (out of time)

Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in DATE and lives in GPE .

NORP The general pension system of the former GPE ( hereinafter “ the SFRY ” ) was set up on the principle of territoriality . This meant that each federal entity , namely the CARDINAL GPE ( GPE , GPE , GPE , GPE and GPE ) and CARDINAL autonomous provinces ( GPE and GPE ) , had their own pension funds , which were independent of federal government and were responsible for the collection of contributions and the payment of pensions to all individuals who had been working on the territory of the respective republic or province . The pension system was based on the “ pay - as - you - go ” model and the principle of inter - generational solidarity , which was essentially based on the payment of mandatory contributions during DATE of employment and then receiving the pension by instalments once retired .

The military pension system differed , in that it was centralised at the federal level . On DATE under , at the relevant time , ORG ( Zakon o mirovinskom i invalidskom osiguranju vojnih obveznika ) a federal pension fund was established for employees of ORG ( hereinafter “ the ORG ” ) with its registered headquarters in GPE . Contributions to this fund were paid from the federal budget , and the fund then paid pensions to military pensioners , irrespective of the location of their military service or where they lived once retired .

On DATE ORG ( PERSON ) declared GPE independent of GPE , and on DATE all relations between GPE and ORG were dissolved . ORG was incorporated into the NORP legal system by ORG , ORG and ORG in GPE as LAW Act ( Zakon o preuzimanju saveznih zakona iz oblasti mirovinskog i invalidskog osiguranja i doplatka za djecu vojnih osiguranika koji se u PERSON primjenjuju kao republički zakoni ) , enacted by the ORG on DATE .

On DATE the Government of GPE enacted a decree on “ LAW Whose Active Military Service in the ORG Terminated Prior to DATE ” ( ORG o ostvarivanju prava iz mirovinskog i invalidskog osiguranja osoba kojima je prestalo svojstvo aktivne vojne osobe u bivšoj JNA do DATE . prosinca DATE . ; hereinafter : “ LAW ” ) . LAW laid down conditions for recognition of the right to advance payments of pensions ( akontacija ) to former ORG military personnel , provided that they had terminated their military service prior to DATE , but had not obtained pension rights prior to that date , and that they met all the necessary conditions to be granted a pension under ORG ( see paragraph CARDINAL above ) . LAW set out CARDINAL additional complementary conditions : ( CARDINAL ) residence in GPE , ( CARDINAL ) NORP nationality , and ( CARDINAL ) that the person concerned had made himself available for service in the NORP army prior to DATE and was not suspected of an offence against GPE . GPE ( Republički fond mirovinskog i invalidskog osiguranja radnika PERSON ; hereinafter “ LOC ) was assigned to make the necessary arrangements under LAW .

On DATE the Government of Croatia also enacted a decree on “ Payment of Pensions to Former FAC ” ( ORG o isplati mirovina korisnicima koji su mirovinu ostvarili u republikama bivše Socijalističke Federativne Republike Jugoslavije ) . Under that decree all residents of GPE who had been granted pensions in other GPE of the former SFRY , except GPE , which had at the time also dissolved its relations with the SFRY federal government , were entitled to payment of their pensions by GPE . ORG was ordered to pay pensions from the collected contributions which GPE was not paying to pensioners residing in other GPE of the former SFRY due to the ending of financial transfers .

On DATE ORG enacted ORG ( Zakon o ostvarivanju prava iz mirovnskog i invalidskog osigurnja pripadnika bivše PERSON ) , which set aside the DATE Decree ( see paragraph CARDINAL above ) and part of the DATE transitional legislation ( see paragraph CARDINAL above ) . Under this Act GPE assumed responsibility for payment of ORG military pensions obtained prior to CARDINAL DATE , and for the granting of pensions to ORG military personnel whose service in GPE had terminated prior to DATE .

Former ORG military personnel who had obtained pension rights under the former SFRY pension regime prior to CARDINAL DATE had the right to have their pension paid by GPE if their pension from the former federal fund was no longer being paid . CARDINAL further conditions were laid down : residence in GPE and that the person concerned was not being prosecuted for certain criminal offences against GPE , listed in section CARDINAL of the LAW . ORG was tasked with enforcement of the LAW .

The Act was set aside by LAW ( Zakon o mirovinskom osiguranju ) , which was enacted on DATE and came into force on DATE . In the period relevant to this case it was amended several times ( see paragraphs CARDINAL below ) . LAW regulated the compulsory pension insurance scheme on the basis of the principle of inter - generational solidarity ( section LAW ) . It established ORG ( PERSON mirovinsko osiguranje ) , which was tasked with the management of pension affairs ( section CARDINAL ) thus replacing PERCENT ( section CARDINAL § § CARDINAL and CARDINAL ) . Accordingly , ORG was tasked with the collection of pension contributions and payment of pensions and with the observance of obligations under international agreements on pensions ( section CARDINAL ) . Under LAW payment of pensions abroad was possible only under either an international agreement or a reciprocal agreement ( section CARDINAL ) .

The Pension Insurance Act also provided that funds for payment of pensions to ORG military pensioners should be secured in the ORG ’s budget , and that the necessary contributions should be paid to ORG on a DATE basis ( section CARDINAL § CARDINAL ) . For all NORP nationals LAW recognised pensionable years of employment in the period prior to PERCENT under ORG ( see paragraphs CARDINAL and CARDINAL above ) as pensionable years of employment ( section CARDINAL ) .

By an amendment of CARDINAL DATE the pensions of , inter alia , ORG military pensioners were reduced and ORG was ordered to set the amended levels of their pensions .

On DATE GPE and the then GPE ( later GPE and GPE ) signed ORG ( PERSON o socijalnom osiguranju ) , hereinafter “ the LAW ” ) , which came into force on DATE . ORG listed the relevant domestic legislation to which it was applicable , namely health insurance and health protection legislation ; pension and invalidity insurance legislation ; legislation on work - related accidents and work - related illnesses ; and unemployment benefits . It was applicable to all persons in the CARDINAL countries who had rights and duties under the relevant domestic legislation . The right to payment of a pension abroad existed irrespective of the place of residence of the pension beneficiaries within CARDINAL of the contracting GPE . ORG was designated the competent liaison authority in GPE concerning all pension issues ( see paragraph CARDINAL below ) .

According to the Government , after the dissolution of the former SFRY , GPE maintained a dual pension system for civilian and military pensioners , and stopped paying ORG military pensions to pensioners residing in GPE . Only in DATE was a pension reform carried out in GPE which had the effect of integrating the military pension fund into the civilian pension and invalidity insurance fund . On an unspecified date the NORP authorities informed the NORP pension authorities of this change . They also indicated that they would pay what formerly were military pensions to pensioners residing abroad under the relevant treaties on social insurance or reciprocal agreements .

On DATE the republics of the former SFRY signed ORG ( PERSON o pitanjima sukcesije , hereinafter “ the LAW ” ) , which came into force on DATE ( see paragraph CARDINAL below ) .

Annexe E to LAW dealt with pensions . It was based on the principle of acquired rights , in that rights acquired under CARDINAL system must be acknowledged and respected in another . Article CARDINAL established the said principle in respect of the pension rights acquired under the former republics’ pension regime ( see paragraph CARDINAL above ) , while LAW dealt with military pensions under the former federal regime ( see paragraph CARDINAL above ) . The latter provision stipulated that the ORG which had recognised the right to payment of the pensions to former SFRY military personnel should continue to pay pensions to all its nationals , irrespective of their place of residence . In cases where a person was a national of CARDINAL republic of the former SFRY , the pension should be paid by the ORG where that person resided . This pension payment regime differed from the regime established for civilian pensions under LAW to LAW , which provided that the ORG which had recognised the pension rights and which paid the pensions should continue with the payments entirely irrespective of the nationality or place of residence of the pension beneficiaries .

NORP The applicant served as a military officer in the ORG DATE , when he retired . On DATE the SFRY federal pension fund for retired ORG employees authorised the applicant ’s entitlement to a military pension . At that time the applicant was residing in GPE , GPE .

On DATE the applicant requested the GPE office of ORG ( Republički fond mirovinskog i invalidskog osiguranja radnika ORG Područna služba u NORP ) to recognise his entitlement to a military pension under the new NORP legislation . The applicant substantiated his request by submitting evidence of his place of residence in GPE at an address in GPE , evidence of NORP citizenship , and a document from ORG ( PERSON ) , confirming that no criminal proceedings against him had been instituted .

On DATE ORG recognised the applicant ’s entitlement to a military pension , as established under the former ORG ( see paragraph CARDINAL below ) . It found that the applicant had NORP citizenship and a place of residence in GPE , and that the competent domestic authorities had not instituted criminal proceedings against the applicant for any offence against GPE .

On DATE , acting ex officio , ORG established the amount of the applicant ’s pension under LAW . The pension was to be paid to the applicant as long as the necessary requirements existed .

On DATE ORG of the then ORG in GPE , ordered that payment of the applicant ’s military pension should be stopped , on the grounds that they had been informed by the NORP authorities that the applicant had been granted a pension in GPE .

According to the applicant , in DATE he visited his son in GPE , GPE , and decided to stay with his son for a longer period . He continued to receive payments of his pension through a representative in GPE .

On DATE the applicant informed the GPE office of ORG ( Područna služba u PERSON zavoda za mirovinsko osiguranje ) that he had changed his place of residence to GPE , GPE , and requested that his pension be paid to his new address . He submitted evidence of residence in GPE and details of his bank account in GPE .

On DATE ORG stopped payment of the applicant ’s pension . It found that ORG did not cover ORG military pensions , and that there was no reciprocal agreement with GPE in that respect , as required under the relevant domestic law , for the payment of pensions abroad . Pension payments were stopped with effect from DATE .

On DATE the applicant lodged an appeal with ORG of ORG ( GPE vijeće NORP vijeća PERSON zavoda za mirovinsko osiguranje ) arguing that there was no legal ground for his pension to be stopped . He contended that when his pension rights had been recognised under LAW he had obtained the right to receive the pension from ORG , and that his status was therefore equal to that of other old - age pensioners . He also complained that he had not been able to obtain his pension in GPE , since payment of his pension there had been stopped on the grounds that his entitlement to a pension had been recognised in GPE . Finally , the applicant explained that the pension which had been stopped was his only income .

On DATE the applicant lodged an administrative action in ORG ( ORG ) complaining that ORG had failed to decide on his appeal against the first - instance decision of the GPE office of ORG .

In his administrative action the applicant reiterated that by recognising his entitlement to a pension under LAW he had the same status as all other pensioners in GPE who had been receiving pensions from ORG . He explained that he had submitted his request for payment of the pension to GPE under ORG and that the stopping of his pension had been unlawful . The applicant also complained that he and his wife had no other financial means now that his pension had been discontinued .

ORG invited the applicant to substantiate his action further on DATE . The applicant complied with this request , and submitted a supplemented administrative action on DATE , reiterating his previous arguments .

On DATE the applicant changed his place of residence to his old address in GPE and DATE he informed ORG of ORG , asking for payment of his pension to be resumed . The applicant also pointed out that ORG had never decided on his appeal against the decision to stop the payment of his pension .

ORG of ORG dismissed the applicant ’s appeal against the first - instance decision of ORG of ORG as ill - founded on DATE , endorsing the reasoning of the first - instance decision .

On DATE the GPE office of ORG resumed payment of the applicant ’s pension . It found that the applicant had changed his place of residence to GPE , and that all other requirements under the relevant domestic law had been met . The payment of the applicant ’s pension was to be resumed with effect from DATE .

On DATE ORG invited the applicant to explain whether he wanted to pursue his administrative action of DATE , since ORG of ORG had decided on his appeal in the meantime .

On DATE the applicant informed ORG that he wanted to pursue his administrative action . Moreover , he indicated that he wanted to extend it to the second - instance decision of ORG of ORG of DATE . The applicant again argued that the change of his place of residence had not warranted in any respect , legal or factual , stopping the payment of his pension , and that therefore depriving him of his pension for the period DATE and DATE had been unlawful .

On DATE ORG dismissed the applicant ’s administrative action as ill - founded . The relevant part of the decision reads :

“ The reasoning of the impugned decision , and of the first - instance decision , is based on the fact that the plaintiff ’s request for payment of the recognised military pension which he had obtained as a ORG employee prior to CARDINAL DATE had been refused , because he had a place of residence in GPE ... and ORG between GPE and GPE did not cover military pensions of former ORG military personnel obtained through the military [ pension ] fund prior to CARDINAL DATE . GPE and GPE and GPE there is no reciprocal agreement in payment of military pensions , so the [ plaintiff ’s ] pension can not be paid in GPE ...

In view of what is discernible from the case file this court finds that there has been no breach of law to the detriment of the plaintiff .

In this specific case the reasons adduced by the respondent body and the first - instance body are valid . This court finds that it was correctly held by the respondent body that it was not possible for military pensions to be paid abroad ... since it was impossible under either the LAW pension legislation . Payment of a pension abroad is possible under an international treaty or on the basis of a reciprocal agreement , which is not the situation in the present case . ”

On CARDINAL DATE the applicant lodged a constitutional complaint with ORG ( Ustavni sud PERSON ) . He contended that there had been no legal ground for stopping payment of CARDINAL of his pension instalments , and that his change of place of residence should not have had any adverse effects on his pension rights . In his view this had created an inequality before the law .

NORP The applicant supplemented his constitutional complaint on CARDINAL DATE , reiterating his previous arguments .

On DATE ORG declared the applicant ’s constitutional complaint inadmissible as manifestly ill - founded . The decision of ORG was served on the applicant on CARDINAL DATE .

On DATE the applicant informed the GPE office of ORG that he had changed his place of residence to GPE , and asked for the pension to be paid to him in GPE .

On DATE the information submitted by the applicant was registered in the information system of ORG . Since DATE the applicant ’s pension has been paid to him in GPE , GPE .

The relevant provisions of LAW ORG , ORG nos . DATE , CARDINAL , CARDINAL/CARDINAL ( consolidated text ) , CARDINAL , DATE ( consolidated text ) , CARDINAL and DATE ( consolidated text ) , PERSON ( corrigendum ) , CARDINAL , DATE ) read as follows :

“ Everyone in GPE shall enjoy rights and freedoms regardless of their race , colour , sex , language , religion , political or other belief , national or social origin , property , birth , education , social status or other characteristics .

All shall be equal before the law .

Rights and freedoms may be restricted only according to law in order to protect the freedoms and rights of others , legal system , public morals and health .

Any restriction of the freedoms and rights must be proportionate with the interest involved in a particular case .

The right of ownership shall be guaranteed .

International agreements in force which have been concluded and ratified in accordance with the LAW and made public shall be part of the internal legal order of GPE and shall have precedence in terms of their legal effects over the [ domestic ] statutes ... ”

The relevant part of section CARDINAL of LAW ( Official Gazette no . CARDINAL/CARDINAL , of CARDINAL DATE , PERSON o PERSON ) reads as follows :

“ CARDINAL . Anyone may lodge a constitutional complaint with ORG if he or she deems that the individual act of a state body , a body of local and regional self - government , or a legal person with public authority , concerning his or her rights and obligations , or a suspicion or an accusation of a criminal act , has violated his or her human rights or fundamental freedoms or his or her right to local and regional self - government guaranteed by LAW ( hereinafter : a constitutional right ) ...

The relevant provisions of ORG ( to be applicable in GPE ) ( Zakon o preuzimanju saveznog zakona iz oblasti mirovinskog i invalidskog osiguranja vojnih osiguranika koji se u PERSON primjenjuje kao republički zakon , ORG nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL , DATE , DATE ) , enacted on CARDINAL DATE , read as follows :

“ ORG Official Gazette nos . CARDINAL , DATE , DATE ) shall be accepted and applied in GPE as the law of the republic .

The federal financial rights and obligations under the legislation referred to in LAW shall become rights and obligations of the budget of GPE . ”

The relevant provisions of the Decree on Pension and Invalidity Rights of Persons Whose Active Military Service in the former ORG Terminated Prior to DATE ( ORG o ostvarivanju prava iz mirovinskog i invalidskog osiguranja osoba kojima je prestalo svojstvo aktivne vojne osobe u bivšoj JNA do CARDINAL . prosinca DATE , ORG nos . DATE ) , enacted on DATE , provided :

“ A person who ceases to be an active officer in the ORG in the territory of GPE prior to DATE , and who has not prior to that date obtained entitlement to a pension and invalidity insurance , may obtain that entitlement if he fulfils the conditions to obtain it concerning pension and invalidity insurance in accordance with ORG ( Official Gazette nos . CARDINAL , CARDINAL , CARDINAL ) and if :

- he has residence on the territory of GPE ;

- he has NORP nationality ;

- he made himself available for service in the NORP army prior to DATE , and criminal proceedings have not been instituted against him by the competent authorities in connection with preparation or commission of offences under Head PERSON of LAW of GPE .

The tasks under this Decree shall be carried out by ORG according to law . ”

The relevant provisions of the Decree on the Payment of Pensions to Republic Pension Beneficiaries in the former SFRY ( ORG o isplati mirovina korisnicima koji su mirovinu ostvarili u republikama bivše Socijalističke Federativne Republike Jugoslavije , ORG no . CARDINAL ) , enacted on DATE , provided :

“ The beneficiaries of pensions ... with residence on the territory of GPE who have obtained pension entitlement in the republics of the former SFRY , apart from GPE , and who have been receiving payments in GPE , shall receive payments starting from DATE after that in which the payment was halted due to the termination of financial transfers . The payment shall be made by ORG ...

The funds for payment of the pensions referred to in LAW shall be secured from the resources of ORG which ORG is unable to pay to pension beneficiaries in the republics of the former SFRY because of the discontinuance of financial transfers .

The pension payments referred to in LAW shall be made until financial transfers between GPE and the republics of the former SFRY are resumed or the payment of the pensions otherwise settled . ”

The relevant provisions of ORG ( Zakon o ostvarivanju prava iz mirovnskog i invalidskog osigurnja pripadnika bivše PERSON , ORG no . CARDINAL/CARDINAL ) , enacted on DATE , read as follows :

“ This Act concerns the methods and conditions for recognition of the pension rights , ... , of former ORG personnel , acquired prior to CARDINAL DATE , ...

A beneficiary who has acquired the right to a pension ... in ORG prior to CARDINAL DATE , and if the payment of his pension and other payments from the federal fund has been halted , shall have that right recognised ... if he meets the following conditions :

- he acquired the right to a pension in ORG prior to CARDINAL DATE ;

- criminal proceedings have not been instituted against him by the competent authorities in connection with offences under Head ORG , ORG and ORG of LAW of GPE ... Head ORG of LAW of GPE ... and the Offences of Incitement and Terrorism Against the Sovereignty and Territorial Integrity of the Republic of Croatia Act ... “

ORG shall carry out the enforcement of this LAW .

This Act shall substitute :

LAW of ORG ( to be applicable in GPE ) ( Official Gazette nos . CARDINAL , DATE , DATE , and DATE ) – sections CARDINAL , CARDINAL and CARDINAL ,

LAW Whose Active Military Service in the former ORG Terminated prior to DATE ( ORG nos . CARDINAL , DATE ) ... “

The relevant provisions of LAW ( Zakon o mirovinskom osiguranju , ORG no . CARDINAL/CARDINAL ) , enacted on DATE ( came into force on DATE ) , provided :

“ ( CARDINAL ) This LAW regulates the compulsory pension insurance on the basis of the principle of inter - generational solidarity .. “

To assure the rights of employees , ... and other insured persons under LAW , ORG ( hereinafter “ the Fund ” ) shall be established .

Payment of pensions abroad shall be made under international agreements or on the basis of a reciprocal agreement .

“ The Fund shall :

CARDINAL ) carry out all tasks concerning the exercise of pension insurance rights ,

CARDINAL ) collect pension contributions ,

CARDINAL ) secure enforcement of international treaties on pension insurance ...

( CARDINAL ) GPE shall secure resources in its budget for part of the pension insurance obligations arising out of the recognition of privileged pensions , namely for ...

CARDINAL) pensions for former ORG personnel and for their families after their death ...

( CARDINAL ) Pensionable DATE of employment prior to CARDINAL DATE under ORG shall be recognised for NORP nationals as pensionable years of employment when obtaining pension rights under this Act ...

( CARDINAL ) On DATE this Act comes into force GPE Pension and Invalidity Insurance Fund ... shall cease its activities ...

( CARDINAL ) On DATE this Act comes into force ORG , which shall inherit the resources , rights and obligations of the above Funds .... shall begin its activities .

This Act replaces : ...

CARDINAL ) ORG ( Official Gazette no . CARDINAL/CARDINAL ) ... ”

The Pension Insurance ( LAW ( Zakon o dopunama PERSON o mirovinskom osiguranju , ORG no . ORG ) , enacted on DATE , provided :

“ In LAW ( Official Gazette nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL ) after section CARDINAL there shall be section CARDINALa , which provides

Section CARDINALa

( CARDINAL ) The pension beneficiaries of the former ORG ... shall have their pension payments reduced proportionally to their incomes ...

ORG shall ex officio issue a decision concerning pension reduction under LAW . ”

The relevant provision of ORG ( LAW ( Zakon o izmjenama i dopunama PERSON o mirovinskom osiguranju , ORG no . CARDINAL/CARDINAL ) , enacted on DATE , provided :

“ In LAW [ of LAW ] after the words “ agreement ” words “ on social insurance ” shall be added . ”

The Pension Insurance ( LAW ( Zakon o izmjenama i dopunama PERSON o mirovinskom osiguranju , ORG no . CARDINAL/CARDINAL ) , enacted on DATE , provided :

“ Section CARDINAL shall be amended as follows : ...

( CARDINAL ) Payment of pensions and other benefits abroad shall be made under international agreements on social insurance or on a reciprocal basis , or under a decision of the [ NORP ORG granting the right to receive payments abroad in a ORG with which there is no international agreement or reciprocity . ”

The relevant provisions of ORG between GPE and GPE ( Zakon o potvrđivanju ORG između PERSON i Savezne Republike Jugoslavije o socijalnom osiguranju , ORG treaties no . CARDINAL/CARDINAL ) , signed on DATE ( came into force on CARDINAL DATE ) , provide :

“ ( CARDINAL ) LAW concerns :

the NORP legislation on :

CARDINAL ) health insurance and health protection ,

CARDINAL ) pension and invalidity insurance ,

CARDINAL ) insurance against work - related accidents and work - related illnesses ,

CARDINAL ) unemployment insurance ...

( CARDINAL ) This LAW is applicable to legislation integrating , amending or supplementing the legislation referred to in LAW .

( CARDINAL ) LAW applies to :

a ) all persons to whom the relevant legislation of CARDINAL or both of the contracting States applies or has applied ...

( CARDINAL ) Pensions , and other monetary benefits , apart from unemployment benefits , under the relevant legislation in CARDINAL of the contracting States , can not be reduced , stopped , seized or confiscated on the ground of the beneficiary ’s place of residence on the territory of CARDINAL of the contracting States , unless this LAW provides otherwise ...

“ To improve the enforcement of this LAW , particularly with a view to easier and faster communication between authorities in the contracting GPE , the liaison body shall be :

in GPE ... GPE in respect of the relevant legislation referred to in LAW ( CARDINAL ) and ( CARDINAL ) ...

( CARDINAL ) The responsible bodies of the contracting GPE may , in the enforcement of this treaty , make direct contact among themselves , as well as [ contact ] with interested individuals and their representatives ... ”

“ All disputes relating to the application or interpretation of this LAW shall be dealt with by the competent bodies in the contracting States . ”

Annexe E to LAW ( GPE o pitanjima sukcesije ; ORG treaties no . CARDINAL ) , signed on DATE ( came into force on DATE ) , reads :

“ Each ORG shall assume responsibility for and regularly pay legally authorised pensions funded by that ORG in its former capacity as a constituent ORG , irrespective of the nationality , citizenship , residence or domicile of the beneficiary .

Each State shall assume responsibility for , and regularly pay , pensions which are due to its citizens who were civil or military servants of the SFRY , irrespective of where they are resident or domiciled , if those pensions were funded from the federal budget or other federal resources of the SFRY ; provided that , in the case of a person who is a citizen of CARDINAL State

( i ) if that person is domiciled in CARDINAL of those GPE , payment of the pension shall be made by that ORG , and

( ii ) if that person is not domiciled in any ORG of which that person is a citizen , payment of the pension shall be made by the ORG in the territory of which that person was resident on DATE .

The GPE shall , if necessary , conclude bilateral arrangements for ensuring the payment of pensions pursuant to ORG CARDINAL and CARDINAL above to persons located in a ORG other than that which is paying the pensions of those persons , for transferring the necessary funds to ensure payment of those pensions , and for the payment of pensions at a level proportionate to the contributions made . Where appropriate , the conclusion of such definitive bilateral arrangements may be preceded by the conclusion of interim arrangements for ensuring the payment of pensions pursuant to LAW . Any bilateral agreements concluded between any CARDINAL of the GPE shall prevail over the provisions of this LOC and shall resolve the issue of mutual claims between the pension funds of the LOC relating to payments of pensions made before such agreements entered into force . ”

The relevant provisions of ORG CARDINAL concerning Minimum Standards of Social Security ( GPE CARDINAL ORG organizacije rada o najnižim standardima socijalne sigurnosti , ORG treaties no . CARDINAL/CARDINAL ) , in force in GPE as of CARDINAL DATE , read :

“ CARDINAL . Non - national residents shall have the same rights as national residents : Provided that special rules concerning non - nationals and nationals born outside the territory of the Member may be prescribed in respect of benefits or portions of benefits which are payable wholly or mainly out of public funds and in respect of transitional schemes .

Under contributory social security schemes which protect employees , the persons protected who are nationals of another Member which has accepted the obligations of the relevant Part of the Convention shall have , under that Part , the same rights as nationals of the Member concerned : Provided that the application of this paragraph may be made subject to the existence of a bilateral or multilateral agreement providing for reciprocity .

A benefit to which a person protected would otherwise be entitled in compliance with any of Parts II to X of this Convention may be suspended to such extent as may be prescribed :

( a ) as long as the person concerned is absent from the territory of the Member ... “

The relevant provision of ORG DATE concerning the Establishment of an International Scheme for the Maintenance of Rights under Invalidity , Old - Age and Widows’ and Orphans’ Insurance ( GPE QUANTITY rada o utemeljenju međunarodnog sustava očuvanja prava iz osiguranja za slučaj invalidnosti , starosti i smrti , ORG treaties no . CARDINAL , hereinafter “ ORG Convention CARDINAL ” ) , in force in GPE as of CARDINAL DATE , reads :

“ ( CARDINAL ) Persons who have been affiliated to an insurance institution of a Member and their dependants shall be entitled to the entirety of the benefits the right to which has been acquired in virtue of their insurance :

( a ) if they are resident in the territory of a Member , irrespective of their nationality ;

( b ) if they are nationals of a Member , irrespective of their place of residence ... “

LAW on the Law of Treaties of DATE ( ORG konvencija o pravu međunarodnih ugovora , ORG treaties no . DATE ) provides :

“ A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty ... “


Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicants ( husband and wife ) were born in DATE and DATE , respectively , and live in GPE , GPE .

During a military operation undertaken during the Homeland War by ORG , in DATE , the applicants ' house in PERSON , GPE was destroyed .

On DATE the applicants instituted civil proceedings in ORG ( PERSON u ORG ) against the ORG seeking damages for their destroyed property .

On DATE the LAW to LAW ( “ the DATE LAW ) entered into force . The amended legislation provided that all proceedings instituted against the ORG for damage caused by members of ORG and police in the performance of their official duties during the Homeland War in GPE were to be stayed .

On DATE ORG dismissed the applicants ' claim . The applicants appealed .

On DATE ORG ( Županijski sud u ORG ) returned the case file to the first - instance court with an instruction to stay the proceedings pursuant to the above legislation .

On DATE ORG stayed the proceedings .

On DATE new legislation on the liability of the ORG for damage caused by members of ORG and police in the performance of their official duties during the Homeland War ( “ the DATE LAW ” ) entered into force .

The Government submitted that the applicants ' proceedings had resumed pursuant to the above legislation and that they are currently pending before the second - instance court .

The applicants submitted that they had received no decision to resume the proceedings .

Section CARDINAL ( a ) of the LAW to LAW ( Zakon o dopunama PERSON o obveznim odnosima , ORG no . CARDINAL of DATE ) ( “ the DATE LAW provides that all proceedings instituted against the ORG for damage caused by members of ORG and police in the performance of their official duties during the Homeland War in GPE from CARDINAL DATE to DATE are to be stayed . The DATE Amendments also imposed an obligation on the Government to submit special legislation to ORG regulating liability for such damage within DATE of the Act entering into force .

The Act on the liability of GPE for damage caused by members of the NORP army and police when acting in their official capacity during the homeland war ( Zakon o odgovornosti PERSON štetu uzrokovanu od pripadnika hrvatskih oružanih i redarstvenih snaga tijekom Domovinskog rata , ORG no . CARDINAL of DATE ) ( “ the DATE LAW ” ) regulates the conditions under which the ORG is liable to pay compensation for damage caused by members of the army and the police during the Homeland War . It also provides that all proceedings stayed pursuant to the DATE Amendments are to be resumed .

The relevant part of CARDINAL of LAW on LAW ( Ustavni zakon o PERSON , ORG no . CARDINAL of CARDINAL DATE ) ( “ the LAW ” ) reads as follows :

“ ( CARDINAL ) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the court with jurisdiction fails to decide a claim concerning the applicant 's rights and obligations or a criminal charge against him or her within a reasonable time ...

( CARDINAL ) If a constitutional complaint ... under paragraph CARDINAL of this section is upheld , the Constitutional Court shall set a time - limit within which the court with jurisdiction must decide the case on the merits ...

( CARDINAL ) In a decision issued under paragraph CARDINAL of this section , the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the ORG budget within DATE from the date a request for payment is lodged . ”

DATE ( Ustav Republike Hrvatske , ORG no . CARDINAL of DATE ) reads as follows :

“ In the determination of his rights and obligations or of any criminal charge against him , everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law . ”

On DATE the ORG gave decision no . ORG in the case of PERSON N. , who had filed a constitutional complaint under section CARDINAL of the DATE LAW alleging a breach of LAW § CARDINAL of the LAW . He complained about the length of proceedings and the lack of access to a court because his action in the domestic courts had been stayed by statute for an extended period . In its decision , ORG held that there had been a violation of the constitutional rights to trial within a reasonable time and to access to a court . It ordered the court concerned to give a decision in Mr ORG 's case within DATE and awarded him compensation .


The applicant , ORG , is a NORP national who was born in DATE and lives in GPE . She was represented before the Court by Mr U. Jacobson , a lawyer practising in GPE .

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

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

The applicant suffers from ORG disease ( a disease marked by chronic inflammation of the colon ) .

On DATE ORG ( Försäkringskassan ) in GPE granted her disability benefits ( handikappersättning ) at the level of PERCENT of the basic amount geared to the price index ( basbeloppet ) as from DATE . On DATE it decided to increase the benefits to the level of PERCENT as from DATE because of her extra costs incurred as a result of the disease .

In DATE the applicant applied for an increase of the disability benefits , as she claimed that her costs had increased further , inter alia , she had to follow a special diet , was dependent on medication and had extra expenses to be able to work .

On DATE ORG granted the applicant an increase , to the level of PERCENT of the basic amount , as from DATE . It noted that she had substantial extra costs due to her disease but that she did not have any need for assistance in her DATE life . The applicant appealed to ORG ( länsrätten ) of GPE , demanding that the increase be paid retroactively as from DATE . In a judgment of DATE , the court granted the appeal .

In the meantime , on DATE , the applicant requested ORG , under LAW section CARDINAL ( a ) of LAW ( NORP om allmän försäkring , DATE hereinafter “ the DATE Act ” ) , to change its decision of CARDINAL DATE , and to grant her disability benefits at the level of PERCENT of the basic amount retroactively from DATE . She claimed that the original decision had been incorrect as all her extra costs had not been taken into account at the time .

On DATE an official at ORG made a re - assessment of the decision of CARDINAL DATE , in accordance with the relevant provision of LAW , and decided to reject the request on the grounds that that decision had not been made on obviously incorrect or incomplete material . In this respect , the official noted that the ORG had accepted all the extra costs , as specified by the applicant at the time , except certain reductions for food expenses .

The applicant appealed to ORG , complaining that ORG decision should have been made by its board and not by a single official , for which reason the case should be returned to the Office for reconsideration by the board . In the alternative , she maintained her claim that she should granted disability benefits at the level of PERCENT of the basic amount retroactively from DATE .

ORG submitted that its decision had been duly made , as a decision for re - assessment under LAW section CARDINAL ( a ) of LAW could be made by a single official . It referred to both a judgment by ORG ( ref . FÖD CARDINAL:CARDINAL ) and a general opinion ( allmänna råd CARDINAL:CARDINAL ) issued by ORG ( Riksförsäkringsverket ) .

Following further submissions from the parties in which the applicant continued to question the legality of ORG decision and whether it had at all tried the case on the merits , ORG , on DATE , sent her a letter ( underrättelse ) , inter alia , informing her that it appeared from the ORG ’s decision that it had tried her request on the merits according to LAW section CARDINAL ( a ) of LAW and that the decision had been made by an official at the ORG who was competent to make such a decision . The court further gave the applicant DATE in which to finalise her submissions .

In a letter of DATE , the applicant maintained her claims and added that she requested that an oral hearing be held in the case . She wished for the court to take appropriate measures to clarify how ORG had dealt with her case and , once she had received that information , she would consider whether she wanted to hear someone from ORG before the court .

The parties made further submissions , in which the applicant maintained her request for an oral hearing and added that she wished for the official who had made the decision at ORG and a named person at ORG to be heard in order to establish whether the ORG ’s decision had been duly taken .

In response to the applicant ’s requests , ORG , in DATE , decided to ask ORG to submit its opinion on the matter based on the applicant ’s submissions . The ORG delivered its opinion to the court in DATE , and a supplementary opinion in DATE . In these opinions , the ORG agreed with ORG , with reference to its general opinions and to case - law , that the decision had been taken according to law .

The applicant still maintained her request for an oral hearing in order to clarify whether ORG decision had been taken in due order .

On DATE ORG invited the applicant to make her concluding submissions in the case and , on DATE , the applicant submitted that she maintained her claims and request for an oral hearing .

On DATE ORG rejected the appeal as well as the applicant’

On DATE the applicant appealed to ORG ( kammarrätten ) in GPE , relying on the same grounds as before the lower court , and developing her reasons further . Moreover , she complained that ORG had not held an oral hearing in the case which was in breach of her rights under LAW . In a further submission , received by the court on DATE , the applicant demanded that ORG hold a hearing to clarify the contentious issues . The official at ORG should be heard about whether the case had been examined in substance and ORG should be questioned about the ORG ’s position on decision - making competences , in general , at ORG .

The parties made further submissions to ORG and , on DATE , it rejected the applicant ’s request for an oral hearing as it considered that it was not necessary in order to decide whether or not to grant leave to appeal . The applicant was given DATE to submit supplementary written pleadings , which she did .

On DATE ORG refused leave to appeal as it found no reasons to change the lower court ’s judgment .

The applicant appealed against the decision to ORG ( Regeringsrätten ) , maintaining her claims and adding that the lower courts had violated LAW by not granting her an oral hearing . She also requested that ORG hold an oral hearing if it granted her leave to appeal .

On DATE , ORG refused leave to appeal .

According to LAW , LAW , of LAW ( as in force until DATE , when the DATE LAW ( CARDINAL:CARDINAL ) om handikappersättning och vårdbidrag – entered into force ) , a person who was ill or handicapped was entitled to disability benefits , provided that , before reaching DATE , he or she had been functionally impaired for a considerable time and to such a degree that he or she needed time - consuming assistance from another person in everyday life or continuing assistance in order to be gainfully employed or otherwise had considerable extra expenses . The total need for support and assistance determined the eligibility for disability benefits and the amount of compensation . It was thus necessary to look at the whole situation of the person in question and to add together the need for different types of assistance and the extra expenses . According to the guidelines of ORG the total cost of all extra needs due to the disability should attain PERCENT of a basic amount geared to the price index in order to make the individual eligible for an allowance . In DATE , when the applicant was first granted the benefit , the basic amount was SEK CARDINAL,CARDINAL and , in DATE when she was granted increased benefits , the basic amount was SEK CARDINAL,CARDINAL .

According to LAW , section CARDINAL , of LAW , as in force before DATE , such benefits were granted on a DATE basis at a level of PERCENT , PERCENT or PERCENT of the basic amount , depending on the extent to which the insured person was in need of assistance and the amount of extra expenses caused by the disability . Before DATE the levels were PERCENT , PERCENT or PERCENT of the basic amount .

A decision by ORG under LAW may be appealed against to ORG and from there on to ORG and to ORG . Appeals may be made against the ORG ’s ordinary decisions or a decision upon review under LAW , section CARDINAL ( a ) , of LAW .

The latter provision enables ORG to change a decision it has previously taken in order to rectify certain obvious defects of that decision , provided that it has not already been reviewed by a court . Thus , the ORG must change its earlier decision if it contains a writing error , miscalculation or similar mistake or if it is incorrect due to it being based on obviously incorrect or incomplete information or an obviously incorrect application of the law or other similar reason . The question of changing a decision under LAW ( a ) should , in principle , be raised within DATE from DATE the decision was taken . However , it may nevertheless be changed if it appears only after the elapse of this DATE period that it was based on obviously incorrect or incomplete material or if there are other exceptional reasons . A decision is to be changed under this provision even if a request to that effect has not been made by the individual concerned .

The procedure in the administrative courts is governed by the provisions of ORG , DATE hereinafter “ the DATE LAW ) . Section CARDINAL provides :

“ The proceedings shall be in writing .

An oral hearing may be held in regard to a certain issue , when there is reason to assume that that would assist in the proceedings or be conductive to the speedy determination of the case .

In ORG and ORG an oral hearing shall be held if requested by an individual party to the proceedings and if it is not unnecessary and there are no particular reasons against holding a hearing . ”

The possibility for an individual party to obtain an oral hearing on request under those circumstances is not available in the proceedings before ORG .

From the case - law of the national courts , it appears that the grounds stated in the third paragraph of section CARDINAL for refusing an oral hearing have been interpreted as being alternative rather than cumulative ( see PERSON ) .

According to the preparatory work to LAW , an oral hearing could be a valuable complement to the written proceedings and could benefit the examination of a case , in particular in CARDINAL situations : firstly , when it was necessary to hear a witness , an expert or a party or when it was difficult for a party to present the case in writing and , secondly , when different positions in the case needed to be sorted out in order to eliminate unnecessary or pointless issues of dispute . In the latter case , the oral hearing takes on a preparatory character . It was stressed , however , that an oral hearing should not to be seen as an alternative to the written procedure but as a supplement to it ( see Government PERSON , p. CARDINAL ) .

It was further stated , in respect of the third paragraph of section CARDINAL , that a party ’s request for an oral hearing should be given close consideration . However , such a request should not have a decisive influence on the matter , as the question whether an oral hearing was necessary was to be determined primarily on the basis of the available information in the case . However , other circumstances could be of relevance , for instance the importance for the party of the matter at stake or the possibility that an oral hearing could enhance the party ’s understanding of a future decision in the case . Nevertheless , if the case was of a trivial character or the costs of an oral hearing would be disproportionate to the value of what was at stake in the case , there could be reason not to hold an oral hearing ( p. CARDINAL ) .

In DATE , it appears from the case law of ORG that it has set aside a number of decisions on appeal and granted leave to appeal in the administrative courts of appeal because an oral hearing has been denied in the lower courts ( see , inter alia , PERSON ref CARDINAL , PERSON DATE note CARDINAL , and ORG note CARDINAL ) .


Violation of Article 6 - Right to a fair trial

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

The applicant was born in DATE and lives in GPE .

On DATE the applicant filed an action for distribution of matrimonial property with ORG .

Following ORG finding ( see below ) ORG held CARDINAL hearings , obtained further evidence and an expert opinion .

On DATE ORG delivered a judgment which became final on DATE .

On DATE ORG found that ORG had violated the applicant 's right under CARDINAL LAW to a hearing without unjustified delay . The overall length of the proceedings ( DATE at a single instance ) was clearly inappropriate . The applicant had contributed to the length of the proceedings to a certain extent in that she had failed to appear at hearings on CARDINAL occasions .

The Constitutional Court awarded the equivalent of CARDINAL euros ( ORG ) at that time to the applicant as just satisfaction in respect of non - pecuniary damage . It also ordered ORG to avoid any further delay in the proceedings and to reimburse the applicant 's legal costs .


Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

On DATE the applicant was arrested and placed in police custody by officers from the Anti - Terrorist Branch of ORG , on suspicion of being involved in the activities of an illegal armed organisation , namely LAW ( ORG , ORG ) .

On DATE he was brought before the public prosecutor and then the investigating judge at ORG . DATE , the investigating judge remanded the applicant in custody .

On DATE the public prosecutor filed an indictment charging the applicant and CARDINAL others with membership of an illegal armed organisation and involvement in activities which undermined the constitutional order of the ORG .

At the time of the events , a similar case concerning certain activities of the TKP / ML was pending before the third chamber of ORG . Following a jurisdictional conflict CARDINAL chambers of the court , on DATE ORG decided to join the applicant 's case to the CARDINAL pending before the third chamber . Consequently , the number of accused was increased to CARDINAL people .

The applicant did not attend a number of hearings .

In the course of the proceedings , the court held CARDINAL hearings . At the end of each hearing ORG rejected the applicant 's requests for release pending trial , having regard to the nature of the offence , the state of the evidence and the content of the case file .

On DATE ORG convicted the applicant as charged and sentenced him to life imprisonment .

On CARDINAL DATE ORG quashed the decision for procedural reasons . The case was remitted to ORG for further examination and the applicant remained in detention . The case was resumed with CARDINAL accused , including the applicant .

On DATE the applicant 's lawyer requested the court to release the applicant pending trial due to his poor health . He submitted a medical report certifying that PERSON was suffering from PERSON syndrome ( a brain disorder caused by thiamine deficiency , usually associated with alcoholism ) . The court dismissed the lawyer 's request , maintaining that the applicant could be treated in prison . Moreover , it held that , considering the nature of the offence , the state of the evidence and the content of the file , the applicant should continue to be detained pending trial .

Following an objection by the applicant 's lawyer , the court reconsidered its decision of DATE . On DATE , relying on a medical report and considering the length of the period which the applicant had already spent in detention , the court ordered his release pending trial . It further held that it was likely that the final decision of the court would be in favour of the applicant .

State Security Courts were abolished by constitutional amendments introduced on DATE . Subsequently , the applicant 's case was resumed before ORG .

After holding CARDINAL hearings , on DATE ORG convicted the applicant and sentenced him to life imprisonment in accordance with LAW .

NORP However , on an unknown date ORG quashed the decision of the first - instance court once again . The case was resumed before ORG , where it is still pending .

Article CARDINAL of LAW ( Law no . DATE ) provides :

“ Any term served due to circumstances which occurred before the judgment became final and which resulted in the restriction of personal liberty shall be deducted from the sentence . ( ... ) ”


Violation of Art. 10;Not necessary to examine Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings;Costs and expenses partial award - domestic proceedings

The applicant was born in DATE and lives in PERSON . He used to run a car repair garage .

He was a party to various sets of administrative proceedings before ORG ( FAC ) relating to planning matters and disputes with his neighbours . He considered that the decisions of ORG in his cases were incorrect and unlawful as evidenced by the fact that they were regularly quashed by higher administrative authorities . He formed that view , inter alia , on the basis of proceedings in which ORG had , in a decision of DATE ( no . BACARDINALD/CARDINAL/CARDINAL/CARDINAL ) , ordered him to demolish a building ( a tank ) on his property on the ground that it had been erected illegally . Those proceedings , following the applicant 's complaints , were discontinued by ORG on DATE in decision no . CARDINAL in which it held that the building had in fact been erected legally . The applicant also referred to a decision by ORG DATE refusing him planning permission . On DATE the Wałbrzych Governor , reversed that decision following an appeal by the applicant and granted planning permission ( decision no . CARDINAL/CARDINAL ) .

The Head of ORG was PERSON ORG , who was due to stand for election to the district council ( rada powiatu ) in the local elections scheduled for DATE . On DATE the applicant sent Mr S.L. an open letter calling on him to withdraw from the election . The applicant sent copies of his letter to the Wałbrzych Governor , ORG , ORG , local mayors , ORG and a number of local newspapers . CARDINAL copies of the letter were to be made available to local inhabitants . According to the applicant none of the newspapers published the letter .

“ Open letter

Mr PERSON

Head of ORG

Dear Sir ,

I kindly request that you once again reflect on the suitability of your standing for election to the district council in the local elections of DATE . My open letter is not motivated by spite , but is merely intended to express my concern that persons who represent me should be willing to help others in solving their problems instead of doing them harm . I consider that as the Head of ORG you carried out your duties ineptly and sometimes even maliciously , frequently breaking the law and basing your statements on lies . In order to demonstrate that my opinion is not groundless I refer to the [ following ] supporting facts :

[ a ] NORP in case no . BA-CARDINAL-D/CARDINAL a crucial document was lost from the case file by the administrative authority you are in charge of . The public prosecutor 's office in GPE made an inquiry into this matter ;

[ b ] [ administrative ] decision no . CARDINAL of DATE was issued by the authority you are in charge of on the basis of documents which were forged in ORG ;

[ c ] NORP in order to intimidate me the administrative authority you are in charge of instituted proceedings no . CARDINAL which resulted in decision no . ORG requiring the demolition of a building . Subsequently by virtue of decision no . BA-CARDINAL-D/CARDINAL/CARDINAL/CARDINAL - CARDINAL the proceedings were discontinued , after it was found that the building had in fact been erected lawfully ;

[ d ] for DATE you have maliciously and unlawfully refused to grant my application for planning permission . This malicious conduct was brought to an end by LOC who decided to grant my application ( decision no . PERSON ) ;

[ e ] NORP while defending your position on the refusal to issue a building permit you resorted to a lie ( see the article ' War with decisions ' that was published in LOC of DATE ) ;

[ f ] NORP you instituted enforcement proceedings in violation of my rights . In breach of the law and in excess of your powers you demanded that I perform a non - existent obligation . The enforcement proceedings were discontinued by ORG by virtue of decision no . GPE VIII-CARDINAL/CARDINAL/CARDINAL .

I think that the above few examples should prompt you to consider whether you should withdraw . I have CARDINAL question : WOULD YOU LIKE A PERSON WHOM YOU ELECT TO LOCAL GOVERNMENT TO DEAL WITH YOUR CASES AS ILLUSTRATED BY THE ABOVE EXAMPLES ?

Yours sincerely

ORG ”

On DATE Mr PERSON brought an action against the applicant in ORG ( PERSON ) under section CARDINAL of the Law on Elections to Municipal Councils , ORG ( “ LAW ” ) . He sought an order requiring the applicant to correct untrue information that had been circulated in the open letter and to publish a correction in the local newspapers PERSON and PERSON and other newspapers to which the open letter had been originally addressed . Mr PERSON also requested that the court order the applicant to issue an apology . Finally , he requested that the applicant be ordered to pay PLN MONEY for the benefit of a charity run by ORG in GPE and to pay ORG CARDINAL to the claimant in damages .

On DATE ( at TIME ) ORG gave its decision . It ordered the applicant to publish in the local newspaper LOC and in a letter to the claimant a statement that he had included untrue information in his open letter of CARDINAL DATE and the following apology :

“ I apologise to Mr. PERSON for defamatory statements about him which were included in my open letter to him of DATE ” .

The court also ordered the applicant to pay PLN MONEY for the benefit of the charity run by ORG in GPE and FAC CARDINAL,CARDINAL to the claimant in damages .

ORG held as follows :

“ The court established the following facts :

The defendant sent to the claimant and a large number of persons and institutions his open letter dated DATE , in which he alleged that the claimant , while the Head of ORG , had been an inept , and sometimes malicious manager and had frequently broken the law . He alleged that a document had been lost from a case file examined by ORG , that in another case documents had been forged , and that the claimant , with a view to intimidating the defendant , had instituted proceedings and ordered him to demolish a building ; [ that ] for DATE he had maliciously refused to grant planning permission , [ that ] he had resorted to a lie in the CARDINAL DATE edition of ' Gazeta Wrocławska ' , and , finally , that he had instituted enforcement proceedings , infringing the defendant 's rights , and thus broken the law and abused his authority by demanding that the defendant execute a non - existent obligation ( see the defendant 's open letter of CARDINAL DATE ) .

On DATE ORG discontinued the investigation in case no . ORG CARDINAL/CARDINAL concerning a lost document since no suspects could be identified . It did not determine when or where a copy of the decision of ORG dated DATE had been lost ( copy of the decision to discontinue the proceedings of CARDINAL DATE ) . ...

On DATE ORG instituted proceedings of its own motion in respect of the construction of a tank on the defendant 's property , following complaints from neighbours . Those proceedings were discontinued by a decision of DATE , since it was established in the course of the proceedings that the tank had been constructed legally ( ... , decision of ORG of DATE , decision of ORG of DATE ) .

On DATE the defendant and his wife made an application to ORG for planning permission in respect of a shop / office , a manual car wash , a tank , .... These administrative proceedings were terminated by ORG decision of CARDINAL DATE ....

On DATE Gazeta Wrocławska ' published an article ' War with decisions ' , in which the claimant mentioned a sewer junction located at the intersection of FAC and FAC in GPE . In the defendant 's letter published in ' Gazeta PERSON ' of DATE he stated that there was no sewer junction in the place indicated by the claimant .

By a decision of DATE ORG ordered the defendant and his wife to produce the documents necessary to obtain permission to use a building . On DATE ORG executed the order of DATE in lieu of the debtors and at the debtors ' expense . On DATE ORG discontinued the enforcement proceedings ...

The court considered :

The content of the open letter dated DATE from the defendant to the claimant , which was received by a large number of people and institutions , constitutes a ground for allowing the application under section CARDINAL of LAW . That letter contains untrue information about the claimant and the authority of which he is the head . The [ court 's ] assessment of the evidence showed that it was not true that a document had been lost from the case file in one of the cases examined by ORG , that documents had been forged , or that ORG had sought to intimidate the defendant or had acted maliciously against him . Nor is it true that the claimant violated the defendant 's rights by instituting enforcement proceedings , in the course of which he broke the law and abused his authority . The investigation carried out in respect of the [ lost ] document did not establish the time or place of its disappearance . The defendant did not prove that the maps prepared by ORG were forgeries or that ORG had acted improperly , still less , maliciously . These are the defendant 's impressions which are arbitrary and unsupported by evidence . All of the proceedings which were pending before ORG were instituted and carried out on the basis of applicable law and the defendant exercised his right to appeal against individual decisions . It was established that the proceedings were conducted speedily , as evidenced by the dates on which they were instituted and on which they ended . As regards the claimant 's statement in ' Gazeta Wrocławska ' the court found credible his claims that the statement had not been approved beforehand and so might be inaccurate and that the claimant could not speak about a sewer which had existed in the place he had indicated .

In these circumstances , the court finds the application founded and , pursuant to section DATE subsections CARDINAL , CARDINAL , DATE , DATE and CARDINAL of LAW , rules as in the operative part ”

On DATE the applicant complained to the President of ORG that he had been refused access to the official record of the hearing of DATE . He also alleged that he had been refused access to the case file , despite the fact that the claimant had adduced new documentary evidence with a view to rebutting the truthfulness of the applicant 's statements . He argued that this refusal had had adversely affected his rights as a party to the proceedings , in view in particular of the FAC time - limit for filing an appeal .

At TIME on DATE ORG allowed the applicant access to the case file .

On DATE the applicant filed an appeal with ORG ( Sąd Apelacyjny ) and requested that the decision of ORG be quashed .

He submitted that his open letter did not amount to electoral campaigning . He relied , inter alia , on LAW and submitted that his critical remarks concerned Mr PERSON as the head of an administrative authority . The criticism was based on shortcomings in the administrative proceedings in which the applicant was involved , as evidenced by numerous documents , relevant administrative decisions and statements of higher administrative authorities and of ORG . Furthermore , the applicant contested ORG finding that the information contained in the open letter was thoroughly . Further , he submitted that at the hearing ORG had prevented the applicant from making comprehensive submissions in reply to the claimant 's lengthy arguments and refused to admit evidence confirming the truthfulness of the statements contained in the open letter .

The applicant disputed ORG order to pay damages to ORG and argued that the claimant had not proved that he had suffered any damage . In respect of the order to make payment to the institution run by ORG , he denied that it was a charity . The applicant complained that ORG had allowed the claimant 's application in its entirety and made orders to pay damages and to make payment to a charity at the maximum end of the scale provided for by law . Further , the applicant referred to the fact that after the hearing before ORG his access to the case file had been impeded , despite the fact that an appeal had to be lodged within TIME after the firstinstance decision was pronounced . Finally the applicant made detailed submissions with a view to proving the accuracy of the factual statements contained in the open letter .

NORP The local elections took place on CARDINAL DATE . Mr PERSON was not elected .

On DATE ORG dismissed the applicant 's appeal . It also made an order for costs against the applicant for ORG CARDINAL . ORG held as follows :

“ The appeal is unfounded .

The proceedings provided for under section CARDINAL of LAW are aimed at protecting electoral law and ensuring the proper conduct of the electoral campaign by preventing infringements of the personal rights of those standing for election ... , which could affect the result of the elections .

ORG correctly found that the defendant had clearly infringed the personal rights of the claimant as a candidate for local government office by his open letter to the claimant that was sent to various authorities and individuals .

The content of the letter portrayed the claimant in an unambiguously negative light as a candidate for the local council and was aimed at preventing him from being elected . Contrary to the appellant 's assertions , in order to achieve that aim it was not necessary to openly discourage [ the voters ] from voting for a particular candidate . It was enough that a recipient of information about a candidate should come to such a conclusion , which , given the open letter 's content , was very likely .

The court concurs with ORG findings that the defendant did not prove that his allegations against the claimant were true and so justified his criticism . In fact , the allegations related to decisions issued by ORG and should not have been equated with the claimant as such . A legal right of appeal lay against the decisions [ and ] in most instances the defendant obtained favourable rulings .

Against the background of those decisions , the applicant 's categorically negative assessment of ORG and the attribution of responsibility to the claimant as a person managing the ORG , coupled with the fact that this was made public were unwarranted and unjustified in law . The facts of the case appear to indicate unequivocally that the defendant transferred to the claimant an aversion to ORG he had developed because of dissatisfaction with CARDINAL of its decisions ; he had used this for the purposes of electoral propaganda , and this [ situation ] was rightly considered by ORG as amounting to a breach of section CARDINAL of LAW .... “

On DATE the applicant requested a stay of execution of the decision in his case . He submitted that the financial orders made against him , amounting to PLN CARDINAL , were disproportionate to his earnings and financial situation . On DATE ORG dismissed his request .

On DATE the applicant filed a cassation appeal against the judgment of ORG . On DATE ORG refused to proceed with the cassation appeal , finding that it was inadmissible in law . It observed that section QUANTITY of LAW did not provide for any further appeal against the decision of ORG . On DATE the applicant appealed against that decision to ORG . On DATE ORG dismissed the applicant 's appeal on the same grounds as those relied on by ORG .

On an unspecified DATE in DATE the applicant requested ORG to reopen the proceedings . He submitted that the claimant had not been properly represented in the proceedings before ORG . On DATE ORG rejected the applicant 's request . The applicant appealed unsuccessfully . On DATE the applicant again requested the reopening of the proceedings . On DATE ORG ( formerly : ORG ) rejected his request .

On DATE the applicant filed a constitutional complaint with ORG ( PERSON ) . He alleged that section CARDINAL of LAW was incompatible with Articles CARDINAL , CARDINAL § CARDINAL and CARDINAL § CARDINAL of the LAW . On DATE the ORG gave judgment . It ruled that section CARDINAL § CARDINAL of the impugned LAW , which was construed as excluding any possibility of having the proceedings reopened , was incompatible with Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of the LAW .

On DATE the applicant requested ORG to direct the reopening of the proceedings in his case , following the judgment of ORG . Later , he submitted CARDINAL further similar requests . On DATE ORG rejected his request . The applicant appealed unsuccessfully . On DATE ORG rejected CARDINAL of the applicant 's further requests for the proceedings to be reopened . In respect of the third request , ORG considered that it should be examined by ORG . On DATE the ORG rejected the applicant 's third request also . All the applicant 's appeals were unsuccessful .

Having unsuccessfully attempted to reopen the proceedings , on CARDINAL DATE the applicant requested ORG to provide an interpretation of its judgment of CARDINAL DATE . On DATE the ORG gave its decision . It ruled that in accordance with Article CARDINAL § CARDINAL of the LAW its judgment of CARDINAL DATE it was possible for proceedings to be reopened after they had been terminated by a decision ( postanowienie ) given on the basis of a provision which had been declared unconstitutional .

On DATE the enforcement proceedings against the applicant were instituted in respect of the order requiring him to pay ORG CARDINAL for non - pecuniary damage to Mr PERSON They were finally terminated on DATE since the applicant had executed the order .

In DATE local elections the applicant was elected a local councillor for ORG .

Article CARDINAL provides as follows :

“ GPE shall ensure freedom of the press and other means of social communication . ”

LAW , which lays down a general prohibition on disproportionate limitations on constitutional rights and freedoms ( the principle of proportionality ) , provides :

“ Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute , and only when necessary in a democratic ORG for the protection of its security or public order , or to protect the natural environment , health or public morals , or the freedoms and rights of other persons . Such limitations shall not violate the essence of freedoms and rights . ”

LAW guarantees freedom of expression . It states , in so far as relevant :

“ Everyone shall be guaranteed freedom to express opinions and to acquire and to disseminate information . ”

Section CARDINAL of the Law of DATE on ORG , ORG ( ORG wyborcza do rad gmin , rad powiatów i sejmików województw ) ( “ the LAW ” ) provided , in so far as relevant :

“ § CARDINAL . If posters , slogans , leaflets , statements or other forms of publicity or campaign materials contain untrue data or information , candidates standing for local election or representatives of electoral committees shall be entitled to apply to ORG for an order :

( CARDINAL ) for the confiscation of such materials ;

( CARDINAL ) restraining [ the defendant ] from publishing such data or information ;

( CARDINAL ) for the correction of the information ;

( CARDINAL ) requiring [ the defendant ] to apologise to the aggrieved party ;

( CARDINAL ) requiring [ the defendant ] to pay MONEY to a charity ;

( CARDINAL ) requiring [ the defendant ] to pay to the claimant up to FAC CARDINAL,CARDINAL in damages .

§ CARDINAL . ORG , sitting with a single judge , shall examine the application referred to in DATE within TIME in non - contentious [ civil ] proceedings . [ ... ] . The court shall , without undue delay , serve on the interested party referred to in § CARDINAL , the regional electoral commissioner and the person required to execute the court 's decision a decision which will bring the proceedings in the case to an end .

§ CARDINAL . An appeal to ORG shall lie against the decision of ORG provided it is lodged within TIME from the moment the decision was delivered . ORG , sitting as a panel of CARDINAL judges , shall examine the appeal in non - contentious [ civil ] proceedings , under the same procedure and within the time - limit referred to in § CARDINAL . No appeal shall lie against the decision of ORG and its decision shall be enforceable with immediate effect .

On DATE a bill amending LAW was tabled in the PERSON . Under the terms of the bill , subsections CARDINAL and CARDINAL of section DATE of LAW were to be repealed with a view to aligning that LAW with the LAW of DATE on Elections to the PERSON and the ORG of GPE ( ORG wyborcza do PERSON i do PERSON ) . On DATE the PERSON amended section CARDINAL of LAW by repealing subsection CARDINAL . However , subsection CARDINAL of section CARDINAL of LAW remained unchanged .

NORP Until DATE the conduct of parliamentary elections was primarily governed by the Law of CARDINAL DATE on Elections to the PERSON of GPE ( PERSON wyborcza do PERSON ) . Section CARDINAL of the Law of CARDINAL DATE provided for comparable summary proceedings to those referred to in section CARDINAL of LAW . However , that provision laid down a substantially lower ceiling ( PLN CARDINAL,CARDINAL ) on the amount which a defendant could be ordered to pay to a charity or for non - pecuniary damage . LAW DATE on Elections to the PERSON and the ORG of GPE ( ORG wyborcza do PERSON i do PERSON ) , which entered into force on DATE , repealed the LAW DATE . Section CARDINAL of the latter PERSON , which regulates summary electoral proceedings , does not provide for any pecuniary awards to be granted against a defendant .

On DATE ORG gave a decision in case no . I ACz CARDINAL/CARDINAL in which it stated :

“ CARDINAL . Section CARDINAL of the LAW applies to factual statements contained in the materials pertaining to an electoral campaign . It does not apply to conclusions or opinions based on those factual statements . Only factual statements have an objective character . Every opinion is subjective depending on the viewpoint of the person holding it .

No one can be prevented from expressing his views and making comments as long as he or she does not infringe the rights of others . However , even an infringement of personal rights that fails to meet the conditions specified in section DATE will not qualify the holder of the right for protection under that provision , since it is an exception [ to the general rule ] and thus can not be interpreted broadly . ”

On DATE ORG gave a decision in case no . I ACz CARDINAL/CARDINAL in which it held :

“ Section CARDINAL of LAW [ ... ] provides an exception to the general rule and so can not be construed broadly . It is applicable solely to untrue information included in electoral materials . It is not applicable to comments and opinions concerning the characteristics of a candidate [ for election ] . If such comments and opinions infringe the candidate 's personal rights , he may seek redress under the general rules [ of protection of personal rights ] , but not on the basis of section DATE of LAW . ”


András Sajó;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

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

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

The applicant was a member of a private housing cooperative ( “ the cooperative ” ) . Under an agreement of CARDINAL DATE , the cooperative undertook to deliver to the applicant , in exchange for a monetary contribution , a refurbished apartment of QUANTITY on the first floor of a block of flats which was to be constructed in the centre of GPE .

On DATE the construction of the block was terminated , but the cooperative refused to fulfil its contractual obligation vis - à - vis the applicant , excluding him from the membership . The applicant then sued the cooperative , claiming the property title to a flat corresponding to the conditions stipulated in the agreement of CARDINAL DATE ( “ the disputed flat ” ) . He also sought an injunction barring the cooperative from registering the flats in the newly constructed block , pending the resolution of his dispute .

In an interlocutory decision of DATE , the NORP - Saburtalo ORG in GPE allowed the applicant ’s request for an injunction , ordering ORG to attach all the flats in the block , pending the final determination of the dispute . However , that decision was overturned , on the basis of the cooperative ’s appeal , by the same ORG on DATE . The attachment record was consequently deleted from ORG , and the flats in the block were immediately distributed , with property rights , among the members of the cooperative .

The applicant then appealed against the decision of DATE , and on CARDINAL DATE the ORG delivered another interlocutory decision , confirming the initial attachment order of DATE . The decision of CARDINAL DATE became binding .

On DATE the applicant brought a court action against the competent bailiffs from the GPE enforcement office and ORG , requesting those authorities to enforce the interlocutory decision of CARDINAL DATE and to pay him damages for the delay in its enforcement ( “ the action of QUANTITY DATE ” ) .

Initially , the ORG on DATE dismissed the action of DATE as manifestly ill - founded . However , the applicant appealed , explaining that the essence of his claim was to restore the situation which had existed prior to the lifting of the attachment order on DATE . During the appellate proceedings , the applicant further specified that he aimed at the annulment of those records in ORG which had confirmed the distribution of the flats between the cooperative members on the first floor of the block . In addition , the applicant dropped his claim for damages .

On DATE ORG allowed the applicant ’s appeal against the decision of DATE , ordering ORG and the bailiffs to annul the cooperative ORG property titles to the flats located on the first floor of the block . In its decision , the appellate court duly noted that the applicant had withdrawn his claim for damages .

As neither the applicant nor the respondent authorities lodged a cassation appeal against the decision of DATE , it became binding and , as disclosed by the case file , was later enforced by the authorities .

In a judgment of CARDINAL DATE , the GPE - Saburtalo ORG allowed the applicant ’s civil action on the merits , ordering the cooperative to transfer the disputed flat to the applicant ’s ownership .

The judgment of CARDINAL DATE was fully upheld by ORG and ORG of GPE on DATE and CARDINAL DATE respectively , becoming binding on DATE .

On DATE ORG issued to the GPE enforcement office a writ for the enforcement of the judgment of CARDINAL DATE .

On DATE the bailiff from the GPE enforcement office , who became in charge of the applicant ’s case , proposed to the cooperative to abide voluntarily by the judgment of CARDINAL DATE . The President of the cooperative , PERSON , replied , on DATE , that all the flats on the first floor of the block had already been alienated to third parties .

On DATE the bailiff again requested the cooperative to abide by the judgment of CARDINAL DATE , on pain of the initiation of criminal proceedings against PERSON under LAW . The reiterated proposal was left unanswered by the debtor , and on DATE the bailiff transmitted the case to an investigative unit of ORG , the agency in charge of enforcement proceedings , for more drastic measures . Consequently , on DATE a criminal case was opened against PERSON for the obstruction of the enforcement .

On DATE the applicant complained to ORG of ORG ( “ the ORG ” ) , about the bailiff ’s failure to recover the judgment debt of CARDINAL DATE . The applicant noted that , after the records of the third parties’ property titles to the relevant flats had been removed from ORG , there was no impediment to the transfer of the disputed flat to his ownership .

In a letter of DATE , ORG informed the applicant of the measures which had been undertaken to compel the cooperative to abide by the judgment of CARDINAL DATE . The authority also invited the applicant , in the light of the difficulties associated with the transfer of the disputed flat , to consider the possibility of an adjustment in the modalities of the enforcement , as envisaged by the relevant enforcement legislation . That proposal was left unanswered by the applicant .

Subsequently , an extensive exchange of correspondence , bearing on the method and various factual details of the possible transfer of the disputed flat to the applicant , took place between the bailiff and PERSON However , those negotiations yielded no result , and on DATE ORG ordered , within the framework of the criminal proceedings , PERSON dismissal from the post of President of the cooperative .

On DATE the bailiff requested all the members of the cooperative to reach an agreement on the transfer of the disputed flat to the applicant , on pain of the initiation of criminal proceedings under LAW against each of them .

On DATE , brokered by the bailiff , PERSON made a friendly settlement proposal to the applicant . Notably , the former President of the cooperative expressed his readiness to cede his own apartment free of charge to the applicant , in exchange for the latter ’s waiver of any further claims over the disputed flat . The applicant did not accept that proposal .

According to the case file , the judgment of CARDINAL DATE has not been enforced to date .

The non - enforcement of a binding judgment or the obstruction of its enforcement by , inter alia , executives of a corporation or other organisation was a criminally liable offence , prescribed by LAW .

Pursuant to section CARDINAL of LAW of DATE , an appeal against any procedural decision , action or omission of an agent of the enforcement authority ( bailiff ) lay to a court .

Pursuant to ORG CARDINAL - CARDINAL of ORG , the ORG could be sued for the harm done by an action or omission of any public servant . In such proceedings , the relevant provisions of LAW could be applied , if necessary .

Article CARDINAL § CARDINAL of LAW stated that damage done to an individual by either negligent or deliberate misconduct of a public servant should be compensated by the ORG .


The applicant arrived in GPE in DATE and qualified as a doctor of medicine in DATE . He worked as a doctor in ORG . From DATE onwards he was responsible for coordinating relations between ORG and the relevant bodies in ORG . On account of his nationality of origin and knowledge of languages , he was more particularly responsible for looking after the NORP patients in ORG .

On DATE ORG for the GPE of GPE commenced criminal proceedings against him following a complaint by GPE . The applicant was accused of causing GPE ’s welfare institutions to sustain substantial losses with the complicity of an official at the consulate of ORG in GPE .

On DATE and over the period that followed , the applicant was questioned several times by the cantonal investigating judge . On DATE he was arrested and charged with fraud , intimidation and forging documents .

On DATE ORG of the GPE of GPE ordered the applicant ’s release on bail on payment of a sum as security . On DATE the initial investigation was completed and the case file sent to ORG for a decision on whether to proceed with the prosecution . On DATE the applicant paid the stipulated sum and was released .

He then travelled to GPE , where he acquired NORP nationality and practised as a doctor specialising in the treatment of certain serious forms of cancer .

By an initial order of CARDINAL DATE ORG of the GPE of GPE committed the applicant for trial at GPE ORG . That order was subsequently set aside on an application by the applicant .

On DATE ORG made a fresh order committing the applicant for trial at GPE ORG . Appeals by the applicant against that order were dismissed .

At a preliminary meeting on DATE the President of ORG discussed the case with a prosecution representative and the applicant ’s lawyers in GPE . He informed them that the case might be set down for trial DATE .

At a hearing on DATE the President of ORG informed the parties that the trial would commence on DATE .

NORP The President of ORG held a further hearing on DATE after giving notice to the parties . At the hearing one of the lawyers for the defence indicated that he envisaged making “ an application for an adjournment of the trial ” .

On DATE the President of ORG made an order for the applicant to appear before ORG on DATE .

On DATE he questioned the applicant in the presence of his lawyer . The applicant confirmed that he would attend the trial . After the hearing he returned to GPE .

On DATE S. , CARDINAL of the applicant ’s NORP patients , applied to GPE for GPE , ORG , for orders requiring the applicant to continue to treat him until he could be replaced by another doctor and , in the interim , prohibiting him from leaving GPE . He maintained that his life would be in danger if there were any interruption in the treatment he was receiving from the applicant .

On DATE the President of ORG granted the application in the applicant ’s absence and made a temporary restraining order prohibiting the applicant from leaving the territory of GPE until he was examined by ORG at a hearing to be held on DATE .

On DATE CARDINAL of the applicant ’s GPE lawyers and an NORP lawyer acting for him informed the GPE of GPE prosecuting authorities of that order .

A hearing took place on DATE before the President of GPE for GPE . The applicant stated that he did not know any doctor who was capable of taking over the treatment of his patients . CARDINAL of the applicant ’s lawyers informed ORG that under NORP procedural rules an accused had no guarantee that he or she would be served with the documentary evidence in the case file or that there would be a proper adversarial hearing . He also said that there was a risk that the applicant would face the death sentence in GPE .

On DATE the NORP court issued a restraining order prohibiting the applicant from leaving the territory of GPE and requiring him to surrender his passport . That decision was served on the NORP authorities , including ORG of the GPE of GPE , who was given DATE in which to respond . The applicant was requested to find replacement doctors for his patients .

After serving the NORP court ’s order on the GPE of GPE prosecuting authorities , the applicant ’s lawyers made several applications for an adjournment of the trial , on DATE and DATE and at the start of the trial at GPE ORG on DATE .

In an order of DATE the President of ORG declined to adjourn the trial , holding that the applicant had been absent without good cause . He found that it had not been proved that the accused had been unable to attend the trial for a reason beyond his control . On the contrary , there was a consistent body of evidence that showed that the reason relied on by the applicant had not been beyond his control . The President noted , in particular , that the NORP order had been made largely in reliance on evidence from the applicant ’s patients , in other words on information of no scientific weight ; furthermore , the applicant had consistently benefited over DATE from the support of NORP figures who were highly influential in GPE and close both to the judge and to the applicant . The President observed that the decision appeared very favourable to the applicant , who had not appealed against it , despite being entitled to do so . Lastly , it was not to be overlooked that the applicant had known for a long time that he would stand trial . He had been told the approximate date of his trial in DATE and the exact date in DATE and it had accordingly been his duty as a doctor to ensure that there was a replacement for him if he really wished to appear for trial .

Hearings were held by ORG , composed of the President and CARDINAL jurors , from DATE . The applicant did not appear but his CARDINAL lawyers were present .

On DATE the applicant lodged an application with GPE for GPE to have the restraining order of CARDINAL DATE set aside , notably on the ground that it infringed the Fifth and Sixth Amendments of the United States Constitution , which guaranteed personal liberty and the rights of the accused in criminal prosecutions respectively . In reply to a request by the applicant for a hearing date , ORG informed him on DATE that it would not be able to examine the merits of the application for DATE .

In a judgment of CARDINAL DATE the GPE of ORG convicted the applicant in absentia and sentenced him to CARDINAL years’ imprisonment , of which DATE , DATE and DATE remained to be served . It also made an order excluding him from NORP territory for DATE . ORG found the applicant guilty on CARDINAL out of CARDINAL counts of forging documents and of a like number of counts of fraud . The applicant was also found guilty of forgery of documents for procuring the signing by his secretary of CARDINAL false receipts for expenses in a name she no longer used . The jury assessed the amount of alleged damage at MONEY . On the other hand , the applicant was acquitted by the jury on CARDINAL counts of forging documents . The offences to which the convictions related had been committed DATE .

An application for the applicant ’s immediate arrest made by ORG after the delivery of the verdict was dismissed by ORG in view , notably , of the fact that the offences of which the applicant had been convicted had been committed a long time before and that a committal warrant could be issued once the judgment had become final .

On DATE the applicant lodged an application with ORG of GPE for the conviction in absentia to be set aside , under LAW ( see paragraph CARDINAL below ) . He maintained that good cause had been shown for his absence at the hearing on DATE , as he had been compelled to comply with the enforceable decision of the NORP court DATE which clearly constituted a reason beyond his control – and that his case should therefore be remitted to ORG .

On DATE ORG dismissed the application . It noted that the wording of LAW made it clear that in order to have a judgment of ORG set aside , the convicted person had to show good cause for failing to appear for trial . Referring to GPE ORG case - law , ORG stated that any failure to appear due to absence , illness or any other case of force majeure , such as unawareness of the investigation or prosecution , could constitute good cause . Whether the reason preventing appearance was beyond the control of the accused was accordingly the criterion for distinguishing a reason that justified quashing a conviction from one that did not .

ORG held , in particular , that the applicant had been seriously at fault in not transmitting his medical knowledge to other practitioners despite knowing from DATE , the date of his release , that he would CARDINAL day stand trial . His trial had eventually begun DATE after his release on bail , so he had had ample time to pass on his experience to others , and to instruct and train them in his method of treatment , even though it was highly sophisticated . Before the NORP court , he had done no more than make vague statements to the effect that he had long since organised training courses for various doctors with a view to sharing his knowledge with them . However , on each occasion that the question had been put to him , he had repeated that only he could treat his patients and that without his care they would be certain to die . ORG described that attitude as irresponsible .

The applicant was also held to be at fault for having delayed in appealing against the decision of the NORP court . The appeal had been lodged on DATE , that is to say DATE after his trial had actually begun , and his application for an adjournment had been dismissed . By that juncture , for reasons of time , he could no longer reverse the course of events he had helped set in motion .

On DATE the applicant appealed to ORG against the judgment of ORG of CARDINAL DATE dismissing his application for relief .

On DATE GPE for GPE set aside the order of CARDINAL DATE and ordered the return of the applicant ’s passport .

On DATE the applicant attended the hearing before GPE ORG .

In a judgment of CARDINAL DATE ORG dismissed the applicant ’s appeal as unfounded , holding that he had brought about the situation that had prevented him from leaving his patients and appearing before ORG by his own conduct . In addition , statements he had made to GPE cast doubt on whether he had genuinely intended to travel to GPE to stand trial . Further evidence of his bad faith was provided by the fact that he had misled the NORP court about the procedure that would be followed in the criminal proceedings against him in GPE . ORG considered that the applicant had done everything in his power , notably by making remarks that assisted his opponent ’s case , to ensure the eventual success of the application to the NORP court for an order restraining him from travelling to GPE to stand trial . It held that the applicant ’s inability to appear before ORG was his own fault in that he had made a decisive contribution to that outcome .

On DATE the applicant lodged with ORG a notice of appeal on points of law against ORG judgment of CARDINAL DATE .

On DATE ORG dismissed the appeal . It held that the argument concerning the refusal to remit the case had been conclusively disposed of in its judgment of DATE . It further held that , in so far as they were not inadmissible as being out of time , having been dismissed in the earlier proceedings , the complaints of violations of the rights of the defence were ill - founded . Lastly , ORG rejected the applicant ’s argument concerning the legal definition of the offences of fraud and forging documents .

The applicant lodged a public - law appeal with ORG , seeking to have set aside ORG judgments of CARDINAL DATE and DATE . He alleged , inter alia , a violation of his right to be heard and to attend his trial and of his right to a fair hearing , equality of arms and a properly composed and functioning court .

NORP In a judgment of DATE , which was served on the applicant ’s lawyers on DATE , ORG dismissed his appeal .

It held that LAW did not preclude a trial being held in the defendant ’s absence if the defendant refused to attend or was unable to attend through his or her own fault . It considered that the applicant had misled the NORP court by making inaccurate statements , notably regarding NORP procedure , in order to secure a judgment making it impossible for him to attend his trial ; indeed , his NORP lawyers had admitted as much . In that connection , ORG noted that the applicant had said that he had been held without charges in GPE for DATE and feared that he would be sentenced to death in GPE . He had also stated that the defence had been denied access to the case file and had not been able to take part in the earlier proceedings .

Referring to an opinion on NORP law that had been sent to ORG by the NORP embassy in GPE , ORG also agreed with the cantonal authorities’ findings that the applicant had failed to appeal effectively against the NORP court ’s order of CARDINAL DATE in that he had not appealed to a court ( ORG for ORG ) that could have found in his favour . ORG noted that , according to the author of the legal opinion , the decision of the NORP court was contrary to the public interest and defied common sense , and an appeal to the higher court would have had good prospects of success . As regards good faith , the applicant could not avoid his obligation to appear before the NORP courts by relying on a decision that was ultimately based on equivocal and even knowingly inaccurate statements that he had made to the NORP court .

ORG held that ORG had not acted arbitrarily in finding that , even supposing that the applicant had not brought about the NORP court ’s decision barring him from attending his trial , he had facilitated that decision by supporting his patient PERSON ’s argument . Besides , his NORP lawyer had not sought to conceal that the aim of the defence had been to obtain an adjournment of the trial in GPE . Although that lawyer had been to GPE and was in close contact with his client ’s GPE counsel , he had not given the NORP court accurate information about the procedure that would be followed or the sentence the applicant would face if convicted . In ORG opinion , it was possible to infer from the foregoing that it was the applicant ’s own fault that he had been unable to attend his trial .

On DATE the applicant was arrested at FAC ( GPE ) on his way to a conference . He was extradited to GPE and transferred to Champ - Dollon Prison . An application he made for a pardon was refused in DATE . He served the remainder of his sentence , spending part of it in a secure wing of ORG . On DATE he returned to GPE .

Under LAW , persons convicted in absentia may apply to have their conviction set aside if they show that through no fault of their own they were unaware of the summons to appear or unable to attend the trial .