The applicant , born in DATE , is a NORP national . He is a businessman by profession . When lodging his application , he was detained in a prison in GPE .

A.

I. The criminal proceedings against the applicant

On DATE the applicant was arrested on suspicion of having committed burglary .

On DATE ORG ( Amtsgericht ) , having heard witnesses and taken expert evidence , convicted the applicant of several counts of burglary and sentenced him to DATE and DATE imprisonment . In these and the ensuing proceedings defence counsel assisted the applicant .

On DATE ORG ( Landgericht ) , following an oral hearing and having again taken evidence , dismissed his appeal .

On DATE ORG ( Oberlandesgericht ) dismissed the applicant 's appeal on points of law .

II . The control of the applicant ’s correspondence

On DATE , in the course of his detention qualifying as detention on remand under NORP law , the applicant complained with the Presiding Judge of ORG about the opening of his letters addressed , inter alia , to ORG .

By letter of DATE , the Presiding Judge informed the applicant that the control of a remand prisoner 's correspondence was not subject to any limitation . He stated that LAW ( Strafvollzugsordnung ) did not apply to remand prisoners . In his view , LAW ( Untersuchungs - haftvollzugsordnung ) did not prevent him from reading such correspondence .

On DATE ORG dismissed the applicant 's objections , considering that pursuant to ORG , only letters addressed to , inter alia , the Commission were exempted from control . This exemption did not apply to correspondence addressed to a remand prisoner .

On DATE ORG dismissed the applicant 's appeal as having lost its purpose ( gegenstandlos ) . ORG noted that the applicant was no longer detained on remand , as his conviction had meanwhile become final .

III . The proceedings with ORG

On DATE the applicant lodged a constitutional complaint ( ORG ) with ORG ( Bundes - verfassungsgericht ) , which he later amended . In his submissions , he complained generally about the unlawfulness of numerous decisions , which he joined . These documents did not include the NORP court decisions regarding his above conviction nor the control of his correspondence as remand prisoner .

On DATE ORG refused to entertain his constitutional complaint . ORG considered that , although having been repeatedly informed about the conditions of lodging a constitutional complaint , the applicant had merely submitted numerous documents and - without having stated any reasons of unconstitutionality - generally requested ORG for an investigation .

B. Relevant domestic law

Pursuant to LAW ) , the ORG shall rule , inter alia , on constitutional complaints which may be lodged by any person who considers that the public authorities have infringed CARDINAL of his or her fundamental rights or CARDINAL of his or her rights as guaranteed under LAW , DATE , DATE , CARDINAL , CARDINAL and ORG of LAW .

The composition and functioning of ORG are governed by ORG ( PERSON über das Bundesverfassungsgericht ) , as amended in DATE .

Sections CARDINAL of that Act concern constitutional complaints lodged by individuals .

According to section CARDINAL ( CARDINAL ) , any person who claims that CARDINAL of his basic rights or CARDINAL of his rights under LAW , Articles CARDINAL , CARDINAL , CARDINAL , CARDINAL and ORG of LAW has been violated by public authority may lodge a complaint of unconstitutionality with ORG . These rights include rights regarding the fairness of proceedings and the rule of law , and the right to respect for correspondence .


No violation of Article 6 - Right to a fair trial

Corneliu Bîrsan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

The applicant was born in DATE and lives in ORG .

The applicant worked in the PERSON company ( “ the company ” ) until DATE , when she was dismissed from her job , together with CARDINAL other employees , owing to a decrease in the company ’s activity . Her post was abolished , the company being unable to offer her another job .

NORP In DATE the employees and managers of the company created the ORG association ( “ the association ” ) , with the aim of acquiring shares in the company , which was being privatised . The applicant was elected to the board of directors with a DATE mandate . In DATE the association ’s general assembly elected a new board of directors , to which the applicant was not elected .

On DATE the applicant lodged an action seeking to have a decision of CARDINAL DATE of the association ’s general assembly overturned . She alleged that the meeting of the general assembly which modified the statute and leadership of the association had not been legally convened .

On DATE ORG ( “ the ORG ” ) allowed the action .

On DATE ORG ( “ the Court of Appeal ” ) allowed an appeal by the association , quashed the previous judgment and sent the case back for a fresh examination . It found that while the applicant had lodged the action against the association , the procedural acts had been performed in respect of the company .

This decision was confirmed on DATE by ORG , which considered null and void a further appeal by the applicant because she had submitted her reasons out of time .

During the retrial on DATE ORG held that , in accordance with Government Ordinance no . CARDINAL of DATE regarding associations and foundations , it had no jurisdiction ratione materie to examine the case , which came within the competence of ORG ( “ ORG ” ) .

NORP The proceedings were stayed DATE and DATE at the applicant ’s request , as she had lodged an appeal against the refusal to exercise jurisdiction .

On DATE ORG , by a final decision , dismissed as groundless the appeal against the judgment of DATE . On DATE the court further dismissed , by an interlocutory decision , a request by the applicant to rectify factual errors .

On DATE the applicant lodged a further appeal against the interlocutory decision and , considering that it could influence the trial , on DATE she requested adjournment of the main proceedings . On DATE the High Court of Cassation and ORG declared the applicant ’s appeal against the interlocutory decision inadmissible .

On DATE ORG Instance dismissed the applicant ’s action as groundless .

On DATE ORG confirmed that judgment by a final decision .

On DATE the applicant challenged the dismissal decision , seeking reinstatement and payment .

On DATE ORG Instance dismissed the action , considering the dismissal decision lawful and well - founded .

The applicant appealed . Of CARDINAL hearings held DATE and DATE were adjourned at the applicant ’s request . This includes a stay of proceedings for non - appearance of both parties before the court DATE and DATE , when the applicant requested the reopening of the proceedings .

The proceedings were also stayed DATE and CARDINAL DATE , when the applicant requested their adjournment pending investigations brought about by her criminal complaints against certain employees of the company .

On DATE ORG dismissed her appeal . On DATE the court , by an interlocutory decision , dismissed a request by the applicant to rectify factual errors in the judgment . On DATE it also dismissed , by a final decision , a further appeal by the applicant against the interlocutory decision .

The applicant lodged an appeal on points of law . After the changes introduced in LAW by Law no . CARDINAL , the file was sent to ORG .

On DATE ORG , after raising on its own motion a plea of incompatibility ratione materiae , allowed the appeal on points of law and referred the case back to ORG , considering that the dispute was CARDINAL of labour law and therefore it was in the latter ’s jurisdiction to hear the case as a first - instance court .

During the trial by ORG , of the CARDINAL hearings held DATE and CARDINAL DATE CARDINAL were adjourned at the applicant ’s request . This includes a stay of proceedings between CARDINAL DATE and DATE , as the applicant raised a plea of unconstitutionality in respect of a legal provision establishing a transitional application of certain rules regarding the courts’ competence . ORG eventually dismissed the request on DATE and on CARDINAL DATE returned the file to ORG .

On DATE ORG , by interlocutory decisions , granted CARDINAL requests by judges to abstain from taking part in the proceedings and refused another such request . On CARDINAL and DATE and CARDINAL DATE the court dismissed , by interlocutory decisions , requests by the applicant to challenge either individual judges or the whole section .

The proceedings were also stayed DATE and CARDINAL DATE at the applicant ’s request , following her demand that the judgment of DATE be set aside .

On DATE ORG rejected as groundless the applicant ’s request for the final decision of DATE to be set aside and on QUANTITY DATE ORG and ORG declared a further appeal by the applicant inadmissible .

On DATE ORG dismissed the applicant ’s action , considering the dismissal decision lawful and well - founded .

The applicant appealed alleging , inter alia , that in her capacity as the chairman of the company ’s trade union she was under the protection of Law no . CARDINAL/CARDINAL which prohibited dismissal from their jobs within DATE of the end of their mandate of those involved in the leadership of a trade union .

On DATE ORG confirmed the solution by a final decision . It held that the applicant ’s activity as chairman of the trade union had ceased on DATE .

On DATE the court dismissed as groundless the applicant ’s request for the final decision to be set aside . On DATE ORG and ORG , by a final decision , declared a further appeal by the applicant inadmissible .

On DATE the applicant brought proceedings to recover salary between DATE and DATE in the amount of CARDINAL old NORP lei ( ROL ) .

On DATE ORG Instance dismissed the action as groundless , considering that the applicant ’s salary had been adapted to her qualification and that the amounts stopped out of her wages had been justified either by disciplinary sanctions , unchallenged before the courts , for systematic failure to fulfil her duties , or by the fact that she had ceased to be the leader of the trade union on DATE . The court ordered the applicant to pay the company ORG for the cost of proceedings .

On DATE ORG upheld in part an appeal by the applicant and , on the basis of an accounting expert report , ordered the company to pay the amount of ROL CARDINAL,CARDINAL,CARDINAL , noting that the rest of money to which the applicant was entitled had already been returned to her . The court also ordered the company to pay the applicant ORG for the cost of the proceedings at first instance and on appeal .

That judgment became final on DATE .

The applications for review of the judgment of DATE and of the final decision of CARDINAL DATE lodged by the applicant were rejected as groundless and her further appeals were either dismissed as groundless or declared inadmissible .

On DATE the applicant requested enforcement of the judgment of DATE . ORG declared that the judgment had become enforceable and that it could be enforced .

On DATE , at the company ’s request , ORG , by an interlocutory decision , declared that the judgment of DATE became enforceable . The court then found that in spite of the fact that that judgment had been declared enforceable , it could not be enforced because it had been varied by a hierarchically superior court .

The applicant contested the interlocutory decision of CARDINAL DATE . On DATE ORG allowed the action , varied the interlocutory decision and rejected the company ’s request to declare the judgment of DATE enforceable , as the latter had been changed by a subsequent appeal .

On DATE the bailiff informed the applicant that the enforcement of the judgment of DATE in respect of due salaries by the company had been effected by offsetting the salaries that the company should had paid her with the amounts due by the applicant to the company for costs in domestic proceedings subsequent to that judgment ORG ( paragraph CARDINAL above ) .

On DATE the High Court of Cassation and Justice , by a final decision , dismissed a complaint by the applicant against the prosecutor ’s refusal to commit for trial CARDINAL judges and a clerk from ORG as groundless .

On DATE ORG and Justice , by a final decision , dismissed a complaint by the applicant against the prosecutor ’s refusal to commit for trial CARDINAL judges from ORG , a judge from ORG and a bailiff as groundless .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Mark Villiger

The applicant was born in DATE and lives in LOC .

On DATE the applicant instituted proceedings before ORG seeking compensation for damages sustained in an accident at the workplace .

On DATE the parties were directed to solve the dispute through mediation . The mediation was unsuccessful and an order to return the file to the first - instance court was issued on DATE .

On DATE the court held the first hearing .

DATE and DATE CARDINAL hearings were held and an expert appointed . At the last hearing the court delivered an interim judgment , reserving the decision on the amount of compensation to the final judgment . Both parties appealed .

On DATE ORG upheld both appeals and remitted the case for re - examination .

On DATE the first - instance court held a hearing .

NORP On DATE the first - instance court issued a decision on termination of proceedings , following an out - of court settlement reached between the parties .

For relevant domestic law see PERSON v. GPE ( ( dec . ) no . CARDINAL , DATE ) .


The applicant is an NORP national , born in GPE ( ORG ) and living in PERSON . He is a lawyer by profession . The respondent Government are represented by their Agent , Mr PERSON , and by their co - Agent , Mr PERSON .

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

By judgment no . CARDINAL of DATE , ORG ruled that the ORG should , in respect of entitlement to a pension of any nature , guarantee the statutory minimum amount .

Since that judgment was not immediately enforced through legislative measures , in DATE the applicant took proceedings against ORG ) in the NORP magistrates ' courts on behalf of numerous pensioners . In those proceedings , the applicant requested that his fees , costs and expenses be awarded directly to him ( distrazione delle spese , LAW ) .

At first instance , in DATE , the magistrates ' courts found in the plaintiff 's favour and awarded the fees , costs and expenses directly to the applicant .

By judgments ORG . CARDINAL of DATE and CARDINAL of DATE , ORG held that the ORG should reimburse part of the taxes unjustifiably paid by certain categories of pensioners on their old - age pensions .

At second instance , in DATE , the appellate court upheld the magistrates ' courts ' judgments and awarded fees and legal costs directly to the applicant .

In DATE , the ORG appealed against those judgments to ORG .

On DATE the President of the Republic passed a legislative decree ( “ decreto legge ” ) ( no . CARDINAL ) enforcing the judgments of ORG . It provided that the ORG would reimburse the amounts by distribution of ORG bonds to the pensioners over DATE . LAW no . CARDINAL extinguished all pending proceedings concerning the reimbursement in question and provided that each party would bear its own legal costs and that the judicial decisions which , on DATE of entry into force of LAW no . CARDINAL , had not yet become final would produce no legal effects .

Legislative Decree no . CARDINAL/CARDINAL was never converted into a law , but its effects were maintained by section CARDINAL(CARDINAL ) of PERSON no . CARDINAL of DATE and section CARDINAL of Law no . CARDINAL of DATE , which reiterated , inter alia , that the judicial decisions which , on DATE of entry into force of LAW no . CARDINAL , had not yet become final would produce no legal effects .

In respect of the above proceedings that the applicant had instituted on behalf of numerous pensioners and which were pending before ORG , the latter by numerous judgments given in DATE and DATE declared the proceedings extinguished and the legal costs divided between the applicant and the ORG , in accordance with the above - mentioned laws .

Some judges in DATE and DATE applied to ORG for review of the above - mentioned sections of LAW . PERSON and GPE . By judgment no . CARDINAL of DATE , ORG declared the said laws compatible with LAW .

On DATE the applicant was served with an injunction granted to the ORG by the ORG magistrate court ordering him to pay the sum of MONEY [ MONEY ] . This sum had been paid to the applicant as a consequence of the first instance decisions of the magistrates ' courts ' ( see above ) .

On DATE the applicant appealed against the order and instituted proceedings before the ORG magistrate 's court against the ORG . By a judgment issued on DATE and filed with the registry on DATE the magistrate 's court rejected the applicant 's claim because the proceedings had been extinguished and the legal costs divided in accordance with the above - mentioned laws and because the first instance decisions of the magistrates ' courts ' had not become final .

It is not clear whether the applicant appealed against this judgment .

Under LAW , the unsuccessful party in the proceedings bears all legal costs , including the lawyer 's fees , costs and expenses incurred by the other party or parties .

Under LAW , the judge can divide the legal costs between the parties when neither is entirely successful or when there are other equitable grounds ( “ altri giusti motivi ” ) therefore .

Under LAW , a lawyer whose client is of limited means can declare that he has advanced the costs and expenses of the proceedings on behalf of his client and has not been paid his fees ( onorari ) , and can accordingly request that , if his client is successful and is thus entitled to be awarded legal costs under LAW , the court should award the costs directly to the lawyer ( distrazione delle spese ) . Article CARDINAL thus grants a special protection to the lawyer , who enters into a direct relationship with the opposing party . He can subsequently act autonomously against the losing party in order to recover his fees , costs and expenses . The lawyer remains entitled to claim his fees from his client , however .

Under Legislative Decree no . CARDINAL/CARDINAL all pending proceedings concerning the reimbursement of taxes unjustifiably paid by pensioners were extinguished and the legal costs were divided between the parties .

Under LAW ( CARDINAL ) of LAW , a legislative decree is LAW which ceases to be valid if not converted into a law .

Legislative Decree no . CARDINAL/CARDINAL was not converted into a law . However , its effects were maintained by section CARDINAL(CARDINAL ) of PERSON no . CARDINAL of DATE and section CARDINAL of Law no . CARDINAL of DATE . Law no . CARDINAL of DATE entered into force on DATE .

Under LAW no . CARDINAL of CARDINAL DATE “ The question of the constitutionality of a law or equivalent act of the Republic which has been raised either by the judge or by any of the parties to the proceedings and has not been considered manifestly ill - founded by the judge shall be referred to ORG for decision . ”


CASE OF SPACEK, s.r.o. v. THE CZECH REPUBLIC

Preliminary objection rejected (estoppel);No violation of P1-1

The applicant is a limited liability company incorporated under NORP law with its head office in GPE .

NORP In DATE ORG ( the predecessor of the applicant company ) maintained its accounts by single - entry book - keeping in accordance with section CARDINAL of LAW ( No . DATE ) ( zákon o soukromém podnikání občanů ) ( " the Private Business Activities Act " ) and ORG ( zásady vedení účetnictví při soukromém podnikání občanů ) ( " the Rules " ) published in ORG Financial Bulletin No . CARDINAL on DATE .

On DATE ORG was registered in ORG ( podnikový rejstřík ) pursuant to section CARDINAL(CARDINAL ) of the Private Business Activities Act .

On DATE ORG passed to double - entry book - keeping . On DATE it ceased to exist , and the applicant company , ORG , ORG . ( společnost s ručením omezeným ) was incorporated .

On DATE ORG ( finanční úřad ) notified the applicant company that it was required to pay additional income tax of CZK MONEY , including a penalty of CZK CARDINAL , for the DATE tax year because ORG had not increased the income tax base for the DATE tax year by including certain assets amounting to CZK CARDINAL,CARDINAL even though , pursuant to section CARDINAL ) of the Regulations on the procedure for passing from single to double - entry book - keeping ( postup přechodu z jednoduchého na podvojné účetnictví ) ( " the Regulations " ) of CARDINAL DATE , published in Financial Bulletin No . CARDINAL on CARDINAL DATE , it had been required to do so . ORG held that ORG had violated both section CARDINAL of the Private Business Activities Act and the Regulations .

On DATE ORG ( finanční ředitelství ) dismissed the applicant company 's appeal . It stated that ORG had correctly decided the case in accordance with the Rules published in Financial Bulletin No . CARDINAL and the Regulations published in Financial Bulletin No . CARDINAL . It also stated that LAW were issued in order to clarify obligations arising from section CARDINAL of the Private Business Activities Act .

On DATE the applicant company appealed to ORG ( mĕstský soud ) . It submitted that in DATE ORG had maintained single - entry book - keeping in accordance with section CARDINAL of the Private Business Activities Act and section CARDINAL ) of the Rules issued by ORG on DATE under number V/CARDINAL - CARDINAL/CARDINAL . It claimed that the Rules provided for single - entry book - keeping by businesses which were not registered in ORG , or businesses which were registered in ORG under section CARDINAL(CARDINAL ) of the Private Business Activities Act ( i.e. voluntarily and not pursuant to the obligation to register under section CARDINAL ) of the Act ) . The applicant company also submitted that , even though the contents of the Rules were not legally binding , businesses were applying them for the sake of convenience . It further maintained that ORG , having applied the ORG which were not legally binding , had breached section CARDINAL(CARDINAL ) of Administration of Taxes Act ( No . CARDINAL/CARDINAL ) as amended ( zákon o správě daní a poplatků ) , which had provided that tax administrators were obliged to act and decide in compliance with statutes ( zákony ) and other legislative or regulatory instruments binding in general ( obecně závazné právní předpisy ) , and section CARDINAL(CARDINAL ) of LAW ( No . CARDINAL/CARDINAL ) as amended ( zákon o důchodové dani ) , as it had concluded that the profits of the applicant company had been increased by amounts by which its expenses had not been increased contrary to the law .

On DATE ORG rejected the applicant company 's appeal . It considered that in DATE ORG was entitled to regulate the way in which accounts were to be kept and that there was no law obliging the ORG to publish principles and regulations concerning this matter in ORG . Under section CARDINAL(CARDINAL)(b ) of LAW ( No . CARDINAL/CARDINAL ) ( zákon o sbírce zákonů ) , measures ( opatření ) of central administrative authorities and other central authorities were to be published only where statute so required . As the applicant company did not increase its income tax base for DATE , it had not complied with the ORG , and there was a breach of section CARDINAL(CARDINAL ) of ORG .

On DATE the applicant company lodged a constitutional appeal alleging a violation of its right under Article CARDINAL ) of the LAW , according to which “ everyone shall be allowed to do anything which is not forbidden by law , and no one shall be forced to do anything which is not required by law ” . It also invoked Article PERSON ) of LAW , according to which “ obligations shall be imposed only by law , within its limits , and by observing fundamental rights and freedoms ” . The applicant company claimed that ORG had not decided whether the ORG met the requirements of LAW regarding generally binding legislative or regulatory instruments , and had not taken into consideration the principle that any secondary legal act must be published in ORG ( sbírka zákonů ) , must have an appropriate title and form , and must be intended to become valid and enforceable in order to be binding on individuals and legal entities not subordinate to the issuing body .

The applicant company also criticised the opinion of ORG that it was obliged to observe internal regulations ( interní normativní akty ) which were not accessible to it and whose contents could not objectively be found out and applied . The applicant company concluded that in DATE it had been required to fulfil obligations imposed on it by the ORG , of which it had not been , and could have not been , aware as they had been imposed in a manner and form incompatible with LAW .

On DATE ORG ( PERSON ) dismissed the applicant company 's constitutional appeal as ill - founded . The ORG found inter alia that :

" LAW ... established the obligation to keep single or double - entry book - keeping in compliance with accounting rules as prescribed by law . In DATE the ... ORG was entitled to set up conditions and requirements for accounting ... To specify obligations set out in LAW ... , the ... ORG issued ORG , ... published in Financial Bulletin No . CARDINAL . This measure ... further defined obligations on businesses in respect of book - keeping . Moreover , section CARDINAL(CARDINAL ) and ( CARDINAL ) define the responsibility of businesses for the state of their accounting records and set out the sanctions arising from a violation of the obligations under ... LAW ... or from a failure to observe the Rules . This measure , which sets up standards of book - keeping for private businesses , was followed by ORG ... of DATE , ... published in Financial Bulletin No . CARDINAL ... The date of the entry into force of these Regulations is not specifically given ; nevertheless , it states that the transfer from single to double entry book - keeping shall always take place on DATE of DATE ...

... as regards any insufficiency in the publication of those Regulations ... , the ORG can , in general , agree with the applicant that ordinary legal acts become valid only when published in ORG . In cases where there is no reason to publish generally binding legal acts of central administrative authorities , such legal acts must be announced in ORG . The present case concerned a regulation of a ... central administrative authority which , in the light of section CARDINAL(CARDINAL)(b ) of LAW , had to be published in ORG only if so provided by law . This was not the case for LAW . "

NORP tax legislation has adopted the principle that taxes and contributions may be imposed only on the basis of statute ( zákon ) , as enunciated in LAW .

At the material time income tax was governed by LAW ( No . CARDINAL/CARDINAL ) which came into force on DATE . Under section CARDINAL ) , the tax base was the profits resulting from the activities caught by the tax , as established in the taxpayer ’s accounts , together with any amounts by which the expenses shown in those accounts had been increased or the revenues reduced in violation of the law . The LAW was successively amended by Acts Nos . CARDINAL/CARDINAL , PERSON and DATE .

On DATE ORG ( No . DATE ) came into force . It governed , inter alia , the procedure for the assessment of tax obligations and the calculation of taxes to be applied by financial authorities and taxpayers . Under section CARDINAL(CARDINAL ) , tax administrators were obliged to act in compliance with statutes and other generally binding legislative and regulatory instruments , and to protect the interests of the ORG while maintaining the rights and legal interests of taxpayers and other persons involved in tax proceedings . The LAW was successively amended by Acts Nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and ORG .

The obligation for businesses to keep single or double - entry book accounts in compliance with prescribed accounting principles was laid down by section CARDINAL(CARDINAL ) of ORG ( No . DATE ) , which came into force on DATE . According to the first paragraph of this provision , businesses were required to keep accounts showing their revenues , their expenses and the results of their business activities , and the assets used for , and the liabilities ensuing from , those business activities . The Act specified neither the legal form under which accounting principles be adopted nor the authority entitled to issue them .

ORG had jurisdiction over accounting matters by virtue of section CARDINAL of the Socio - economic Information Act ( No . CARDINAL/CARDINAL ) , as amended by Act No . DATE , which empowered the ORG to regulate accounting , budgeting , calculation and matters of financial reporting , and to issue model accounts , related guidelines and other accounting standards . LAW did not require the Ministry to publish measures taken by it in ORG .

The Private Business Accounting Rules ( “ the Rules ” ) , published in Financial Bulletin No . CARDINAL on DATE , introduced the requirement for businesses to use single or double - entry book - keeping and indicated that the base accounting period was to be DATE . The Rules came into effect on DATE . They referred to ORG and the fact that they were issued by ORG for the purposes of specifying the obligations introduced by LAW . They did not , however , make transitional regulations for businesses which were starting to use double - entry book - keeping . They set out the sanctions arising from a violation of the obligations under LAW and from a failure to observe the Rules .

The Regulations on the procedure for passing from single to double - entry book - keeping ( “ the Regulations ” ) , published in Financial Bulletin No . CARDINAL on CARDINAL DATE , made provision for the transition from single to double - entry book - keeping . Amongst other matters , LAW ) provided that , when the transition was made , the FAC income tax base for DATE was to be increased , apart from non - deductible and deductible items specified by statute , by the value of materials , depreciating assets and stock , if the relevant invoices were entered in the accounting books and had been paid before DATE of DATE . The Regulations did not contain any reference to ORG and did not specify the date on which they would become effective .

Neither the Rules nor the ORG were published or announced in ORG .

LAW ( No . CARDINAL/CARDINAL ) , as amended by Act No . DATE , governed , inter alia , the manner of promulgating legislative or regulatory instruments binding on individuals and legal entities in general , as well as the measures of central authorities .

According to section CARDINAL , the full wording of all constitutional and other statutes ( zákony ) enacted by ORG and legal measures ( zákonná opatření ) taken by the ORG President ’s office , orders issued by the ORG ( nařízení vlády ) and legislative statutory instruments taken by central administrative or other central authorities - decrees ( vyhlášky ) , save for the exceptions enumerated in section CARDINAL , must be published in ORG .

According to section CARDINAL , in the case of rulings ( výnosy ) issued by the central administrative or other central authorities , an announcement in ORG of their delivery will suffice if they concern , inter alia , a small number of recipients , or govern details of labour and social security rights and obligations of a group of closely linked persons .

Section CARDINAL provides that the legal acts enumerated in sections QUANTITY and CARDINAL become valid on DATE of their publication in ORG and are enforceable on DATE after such publication , unless otherwise postponed .

Section CARDINAL(CARDINAL)(b ) provides that measures ( opatření ) taken by the central administrative or other central authorities can either be published in full in ORG , or simply announced there where a statute so requires . According to section CARDINAL(CARDINAL ) , such measures or internal instructions ( vnitřní směrnice ) are not to be described as “ decrees ” or “ rulings ” .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE . The respondent Government were represented by their agent , Ambassador PERSON , Head of ORG at ORG .

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

On DATE the applicant crossed the border between GPE and GPE . A considerable amount of cigarettes which he had failed to declare to the customs authorities were found in his car . The cigarettes were seized and criminal proceedings were opened against him .

According to the Government , the applicant , when he was apprehended , was cautioned in writing that he could request a hearing of his case by a trial board ( ORG ) . In case of simplified proceedings the request would have to be made in the objection against the provisional penal order ( PERSON ) , in other cases it could be made at any time before the start of the oral hearing .

On DATE a provisional penal order was issued , finding the applicant guilty of attempted smuggling and attempted breach of the ORG 's tobacco monopoly and imposing a fine on him . The order contained information stating that the applicant could file an objection against it and that he could request the further proceedings including the hearing to be held by a trial board .

The applicant lodged an objection ( PERSON ) . He did not request that his case be heard by a trial board .

On DATE ORG Hauptzollamt ) , as tax offences authority of first instance , held a hearing .

On DATE ORG issued a penal order ( PERSON ) , finding the applicant guilty of attempted smuggling and of attempted breach of the ORG 's tobacco monopoly . It imposed a fine of CARDINAL NORP schillings ( ORG ) on him with DATE imprisonment in default . Further , it ordered the forfeiture of the cigarettes . The penal order informed the applicant of his right to appeal within DATE from its service . Further , it stated that the appeal would be examined by ORG for GPE , GPE and ORG ) as tax offences authority of second instance . If the appellant so requested , the hearing of the appeal would be held and the decision be taken by ORG appeals board ( ORG ) .

On DATE the applicant appealed . However , he did not request that the appeal be heard by the appeals board .

On DATE ORG , as tax offences authority of second instance , dismissed the applicant 's appeal .

On DATE the applicant , represented by counsel , requested ORG ) to grant him legal aid for the purpose of filing a complaint against ORG decision . As grounds for the complaint he submitted that none of the authorities which had dealt with his case qualified as a tribunal within the meaning of LAW , as both , ORG and ORG , were purely administrative authorities . Moreover , the criminal proceedings against him had lasted unreasonably long .

On DATE ORG requested the applicant to supplement his legal aid request which the applicant did on DATE .

On DATE the President of ORG dismissed the applicant 's request for legal aid on the ground that the complaint lacked prospects of success . He noted that there was no indication that the decision at issue was based on an unlawful provision or that the application of the law in the present case raised an issue of constitutional law . This decision was served on the applicant 's counsel on DATE . The letter accompanying it informed the applicant that he remained free to lodge a complaint with ORG within DATE . If he wished to do so he had to be represented by counsel of his own choosing .

The applicant did not lodge a complaint with ORG .

Under LAW ( Bundes - verfassungsgesetz ) ORG decides , inter alia , on applications ( Beschwerden ) in which it is alleged that the administrative authorities have breached their duty to decide .

Article CARDINAL of LAW , in its relevant part , reads as follows :

“ An action for breach by the administrative authorities ... of the duty to decide can be lodged by anyone entitled as a party in administrative proceedings to enforce that duty . An action for breach of the duty to decide is inadmissible in administrative criminal proceedings , except private prosecutions and prosecutions in respect of tax offences . ”

Section CARDINAL of LAW ( Allgemeines Verwaltungsverfahrensgesetz ) deals with the administrative authorities ' duty to decide . Its relevant part reads as follows :

“ ( CARDINAL ) ORG to any contrary provision in the administrative regulations , the authorities must give a decision on applications by parties ... and appeals without unnecessary delay and at DATE after the application or appeal has been lodged .

( CARDINAL ) If the decision is not served on the party within this time - limit , jurisdiction will be transferred to the competent superior authority upon the party 's written request . ... ”

In proceedings under LAW an application for transfer of jurisdiction to the superior authority is excluded .

LAW ( Verwaltungsgerichtshof - gesetz ) relating to the application against the administration 's failure to decide read as follows :

“ An application under LAW for breach of the duty to decide ( application against the administration 's failure to decide ) can be lodged only when the highest authority to which an application can be made in administrative proceedings , either by way of an appeal or an application for transfer of jurisdiction , ... has been applied to by a party and has not made a decision on the matter within DATE . ... ”

According to ORG judgment of CARDINAL DATE ( published in the official collection of that court 's decisions , PERSON ) , ORG may receive applications against the administration 's failure to decide under LAW , taken in conjunction with section CARDINAL of LAW , also where an authority of first instance has failed to give a decision within the statutory DATE time - limit , provided that no other remedy ( such as a request for a transfer of jurisdiction ) lies against the failure to decide ( see PERSON v. GPE , no . CARDINAL , § DATE , ECHR CARDINAL-I ) .

The competence of the tax authorities as regards proceedings relating to tax offences and the conduct of these proceedings are regulated in LAW ( Finanzstrafgesetz ) . The relevant provisions , as in force at the material time , contained the following rules .

Pursuant to section LAW ( a ) of LAW , ORG , as a tax offences authority of first instance , is competent to conduct the proceedings concerning inter alia smuggling or breach of monopoly regulations . According to section CARDINAL § CARDINAL a trial board shall hold the hearing and give the decision where the relevant value exceeds a certain amount . As to other offences , it is up to the defendant to request a decision by the trial board . In case of so - called simplified proceedings such a request shall be made in the objection against the provisional penal order .

Pursuant to section CARDINAL § CARDINAL an appeal will be decided upon by ORG as tax offences authority of second instance . According to section CARDINAL § CARDINAL an appeals board shall hold the hearing and give the decision on the appeal , if it is directed against the decision of a trial board or if the appellant so requests .

Section CARDINAL regulates the organisation of the trial boards and the appeals boards . Its paragraph CARDINAL provides that their members are not bound by any instructions . According to its paragraph CARDINAL , the trial boards consist of CARDINAL members : a judge as chairperson , CARDINAL member of the senior service of the tax authorities and CARDINAL lay member . The appeals boards consist of CARDINAL members : a judge as chairperson , CARDINAL member of the senior service of the tax authorities and CARDINAL lay members .

Pursuant to CARDINAL members of the above boards are appointed by the Federal President upon nomination by ORG . Their term of office is DATE .

Section DATE provides that ORG has to fix , for DATE in advance , the number of trial boards and appeals boards , their chairpersons and members and the sequence in which members have to step in if a member is unable to sit . ORG also has to allocate the business of the trial boards and the appeals boards for DATE in advance .

Meanwhile , on DATE , a reform encompassing the appeal procedures in all tax matters has entered into force BGBl . ( ORG ) no . CARDINAL/CARDINAL . A new body , ORG ( PERSON ) has been created to hear appeals . As to proceedings relating to tax offences , the provisions on trial boards have not changed , whereas the appeals board is now part of ORG and its composition has changed : it consists of CARDINAL of the Presidents of the Independent Finance Panel , CARDINAL full - time member of the latter and CARDINAL lay members . The term of office of the President and the other full - time members of ORG is indefinite .


Violation of Art. 5-1;Non-pecuniary damage - finding of violation sufficient

David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza

The applicant was born in DATE and lives in GPE .

DATE the applicant was the Director of ORG ( PERSON informačná služba ) , which is the NORP intelligence service .

On DATE Mr PERSON , the son of the then President of GPE , was forcibly taken from GPE to an NORP village in the vicinity of the NORP border . Following a phone call the NORP police found him intoxicated in a car . He was detained as ORG ( ORG ) had issued an arrest warrant against him .

On DATE ORG ( Oberlandesgericht ) refused to extradite PERSON to GPE for the purpose of his prosecution there . ORG held , inter alia , that witness statements by a former member of ORG and by the President of GPE supported PERSON allegation that members of the NORP secret service had brought him to GPE against his will in the context of political controversies in GPE .

NORP The NORP police started an investigation into the incident and expressed the view that several offences had been committed in that context .

On DATE Mr PERSON , the Prime Minister , who at the time , under LAW , exercised several powers entrusted to the President of GPE , delivered a decision on amnesty ( rozhodnutie o amnestii ) , the relevant parts of which read :

“ The Prime Minister of GPE , in the exercise of his powers under LAW and LAW ) of LAW of GPE , on the occasion of the fifth anniversary of the establishment of GPE , gives the following decision on amnesty as a contribution to reaching civic reconciliation and in the interest of eliminating possible sources of tension in society : ...

I order that criminal proceedings should not be started and , if they have already been started , should be discontinued in respect of criminal offences committed in the context of the notification of the abduction of PERSON junior abroad . ”

The decision was published in LAW .

On DATE the following decision on amnesty given on DATE by PERSON in his capacity as Acting President of GPE was published in LAW :

“ The Prime Minister of GPE , in the exercise of his powers under LAW and LAW ) of LAW of GPE , in the interest of eliminating disputes as regards the interpretation of the decision on amnesty adopted on DATE ... , declares the following decision on amnesty : ...

I order that criminal proceedings should not be started and , if they have already been started , should be discontinued concerning the suspicion of criminal offences allegedly committed in the context of the reported abduction of ORG . PERSON ... abroad , which allegedly occurred on DATE . ”

On DATE the police investigator decided not to pursue the case concerning the above offences which , as the decision stated , had been committed by unknown perpetrators . Reference was made to the decision on presidential amnesty of DATE and to LAW ) and LAW .

In DATE the applicant was elected as a member of ORG ( the ORG ) for a DATE term .

On DATE the newly appointed Prime Minister , Mr M. Dzurinda , in his capacity as Acting President of GPE , delivered a new decision on amnesty in the above case . The decision was published in LAW on DATE and it reads :

“ The Prime Minister of GPE , in the exercise of his powers under LAW and LAW ) of LAW of GPE , in the interest of eliminating disputes as to the conformity with LAW of the decisions on amnesty of DATE ... and DATE ... , declares the following decision on amnesty :

LAW VI of the decision on amnesty of CARDINAL DATE ... and LAW II of the decision on amnesty of DATE ... are revoked . ”

In DATE the DATE newspaper PERSON published declassified parts of a report on the activities of ORG submitted by its newly appointed Director . The report stated , inter alia , that ORG had taken extensive measures with a view to concealing its involvement in the abduction of PERSON and in order to hamper an appropriate investigation into the circumstances surrounding that incident .

After the relevant parts of the above decisions on the presidential amnesty of CARDINAL DATE and of DATE had been revoked , a police investigator , on DATE , informed ORG that the applicant was suspected of having committed several offences in the context of the abduction of PERSON . As the applicant enjoyed immunity as a member of ORG , the investigator requested that ORG give its consent to his prosecution . In a decision of DATE ORG granted the investigator ’s request .

On DATE the police investigator started criminal proceedings against the applicant . The applicant was accused of several offences on the ground that he had been involved , in his capacity as Director of ORG , in the abduction of PERSON PERSON in DATE .

On DATE the ORG gave its consent to the applicant ’s detention on remand . On DATE the Bratislava CARDINAL ORG ( ORG súd ) detained the applicant on remand with reference to LAW . The decision stated that the applicant might influence the witnesses or otherwise hamper the investigation .

NORP The applicant lodged a complaint . He argued , inter alia , that the Prime Minister ’s above - mentioned decision of DATE was contrary to the LAW . ORG ( PERSON súd ) dismissed the complaint on CARDINAL DATE . The decision stated that the applicant ’s case fell within the jurisdiction of ORG . ORG further held that the applicant had been remanded in custody in accordance with the relevant law .

On DATE and DATE the applicant filed an application for release . On DATE the Bratislava CARDINAL ORG dismissed it . The decision stated that the applicant had attempted to contact other members of ORG and that he might influence witnesses in the event of his release .

On DATE and CARDINAL DATE the applicant lodged a complaint against that decision . On DATE he argued , with reference to ORG decision no . I. ÚS CARDINAL/CARDINAL of DATE ( see “ Proceedings before the ORG ” below ) , that the decision to quash the relevant part of the presidential amnesty had been contrary to LAW . The applicant further argued that no relevant reason existed for his detention .

On DATE ORG ordered the applicant ’s release . ORG found that most of the relevant evidence had been taken and that the assumption that the applicant could influence witnesses or his co - accused was no longer justified . The applicant was released on DATE .

NORP The Minister of Justice lodged a complaint in the interests of the law against that decision . On DATE ORG ( Najvyšší súd ) dismissed the complaint . In ORG view , ORG had proceeded in accordance with the relevant provisions of LAW . ORG decision further stated that the case was at a preliminary stage and that it was therefore for the prosecuting authorities dealing with it to decide what conclusions should be drawn from ORG decision of DATE , according to which the LAW did not allow the quashing of an earlier amnesty .

On DATE the applicant and CARDINAL other persons were indicted for several offences before GPE ORG .

On DATE ORG discontinued the criminal proceedings against the applicant and the other accused with reference to LAW ) , LAW ) and LAW ) of LAW . ORG addressed as a preliminary issue the validity of the above decisions on amnesty . Its decision stated that the Prime Minister ’s decision of DATE to revoke the relevant provisions of his predecessor ’s decision to grant an amnesty in relation to the offences imputed to the applicant and his co - accused was null and void and that it had no basis in LAW . The decision on amnesty issued on DATE was final , irrevocable and not subject to review . Both the criminal character of the action in issue and any criminal liability in that respect had been thereby removed and there was no provision in NORP law by which that position could be changed .

On DATE ORG dismissed a complaint by the public prosecutor against ORG decision . It also dismissed a complaint by the applicant and his co - accused concerning the relevant legal provisions on which the decision to discontinue the proceedings had been based .

With reference to LAW ) of LAW , ORG held that the prosecuting authorities were obliged , regardless of their opinion , to respect the amnesty granted by the Prime Minister in the exercise of certain powers vested in the President . The granting of amnesty was the manifestation of the individual will of a person entitled to take such an action under the relevant provisions of LAW . In ORG view , there was no scope for subsequently altering such will .

The Prosecutor General lodged a complaint in the interests of the law against ORG decision .

The complaint was dismissed by ORG on DATE . The decision stated that the amnesty of DATE relating to the offences imputed to the applicant and his co - accused prevented the criminal proceedings against them from being pursued . ORG shared the lower courts’ view that the investigator ’s decision of CARDINAL DATE not to pursue the case was final and that LAW contained no provision permitting the proceedings concerning the offences in question to be resumed after the matter had become res judicata .

ORG expressed the view that the Constitutional Court ’s decision no . I. ÚS CARDINAL/CARDINAL of DATE had confirmed the position in the case on the basis of legal theory and existing practice . As a general rule , a decision on amnesty published in accordance with the relevant requirements could not be quashed . While it was true that ORG finding did not directly affect the contested decision on amnesty of DATE , the interpretation by ORG of the relevant issue was decisive when determining whether a particular authority or person had exceeded their powers . The decisions of the lower criminal courts to discontinue the criminal proceedings had therefore been in conformity with LAW , which defined GPE as a ORG based on the rule of law .

ORG shared the interpretation by ORG ( decision no . ORG CARDINAL/CARDINAL ) of the terms of the amnesty decisions of CARDINAL DATE and DATE . It admitted that the rather unusual phrasing of those decisions had raised difficulties as to their interpretation . Ordinary courts were obliged to observe the principle in dubio pro reo when interpreting and implementing a decision on amnesty . The decisions on amnesty of CARDINAL March and DATE had been issued in accordance with the legal order of GPE . That was not the case , however , as regards the subsequent decision to revoke the relevant parts of those decisions . The courts were obliged to abide by the law in force .

On DATE members of parliament filed a petition for interpretation of LAW ) of the LAW . They challenged the decisions on amnesty of DATE and DATE as being an abuse of power and contrary to the principles of a ORG based on the rule of law . The plaintiffs sought a finding that in the exercise of all his or her powers the President of GPE was limited by the solemn pledge to act in the interests of the citizens and to respect and protect the LAW and other laws .

On DATE ORG ( First Chamber ) dismissed the petition as falling short of the formal requirements . Since the decisions in issue in no way affected the powers of ORG and the rights of its members , there existed no legally relevant dispute over the interpretation of LAW ) of the LAW calling for interpretation of that provision .

On DATE CARDINAL members of parliament requested ORG to give an interpretation of LAW ) of the LAW concerning the President ’s right to grant an amnesty . They argued that the quashing of a presidential decision on amnesty had no legal basis . The alleged reason for the decision of DATE had been the elimination of disputes concerning the conformity with the LAW of the decisions of CARDINAL DATE and DATE . However , only ORG was entitled to determine such disputes .

In his submission to ORG the Prime Minister , PERSON , argued that the point in issue was not governed by LAW . It followed from the principles of a ORG based on the rule of law , as laid down in LAW , that decisions which were not subject to any review should be permissible in exceptional cases only . It was generally known that ORG and its representatives were suspected of being involved in the offences covered by the amnesty . It was therefore in the general interest to have the matter elucidated . His predecessor ’s decision to grant the amnesty in issue had been an abuse of power and contrary to the interests of the citizens . DATE of the principles of a ORG based on the rule of law required that the situation be remedied . The President or the Acting President was allowed to use the rights vested in him or her by the LAW only within the scope of the constitutional principles in force in GPE . Reference was made to LAW adopted by ORG of ORG on DATE . The Prime Minister argued that a decision on amnesty could be amended or quashed exceptionally where the contents of such a decision were contrary to the LAW and the principles on which it was based .

On DATE ORG adopted , under LAW , decision no . PERSON , the operative part of which reads :

“ ... interpretation of LAW ) of LAW of GPE :

The right of the President of GPE under LAW ) of LAW of GPE consists in granting amnesty in any of the forms set out in that Article .

However , this right does not authorise the President of GPE to amend , in any way whatsoever , a decision on amnesty which has been published in LAW . ”

Decision no . I. ÚS CARDINAL/CARDINAL was published in LAW on DATE . In it ORG ( First Chamber ) had recourse to an extensive linguistic , logical , historical and systematic interpretation of the provision in issue . It stated that LAW did not envisage the possibility of resuming criminal proceedings following a decision to quash an amnesty . Reference was also made to LAW and to LAW . As to UN Declaration CARDINAL/CARDINAL , it related to the granting of amnesty and did not imply that an amnesty which had been granted should be revoked .

NORP The prerogative of granting an amnesty and the obligation to comply with it confirmed the separation of powers in a ORG founded on the rule of law , based on the principle of legal certainty and the necessity to protect acquired rights . An amnesty ( individual pardon ) did not belong to the category of fundamental rights and freedoms of citizens and there existed no legal entitlement to have it granted . The President was therefore under no obligation to grant an amnesty . By making use of the right to grant amnesty , the President prevented the judicial branch of power from exerting an effect on citizens in certain cases . As a representative of the executive branch of power , the President took over the responsibility for such a decision .

Admittedly , the alleged offences covered by the amnesty in issue were of a serious nature . However , no particular offence was excluded from the President ’s right to grant amnesty under NORP law . An amnesty was an individual act in respect of which no remedy was available . No retroactive effect of the decision on amnesty of DATE could therefore be envisaged .

In the decision of DATE ORG concluded that LAW ) of the LAW could not serve as a basis for any decision by which the President of the GPE adversely affected , from the point of view of criminal law , the position which a person had acquired as a result of an amnesty .

In a petition of CARDINAL DATE the applicant complained to ORG that his rights , including those under LAW , had been violated in that the criminal proceedings against him had been pursued despite the decisions on amnesty given on DATE and DATE .

The Second Chamber of the Constitutional Court rejected the petition on DATE ( decision no . II . ÚS CARDINAL/CARDINAL ) . The decision stated , inter alia , that the decisions on amnesty of CARDINAL DATE and DATE were phrased in such a way that they did not rule out the applicant ’s prosecution for the offences in issue and his detention on remand , regardless of the decision of CARDINAL DATE .

Furthermore , the decision on the interpretation of the relevant provisions of the LAW set out in decision no . I. ÚS CARDINAL of DATE was of an abstract nature and had no legal effect in respect of any actions , omissions or decisions of the ORG authorities which had given rise to the point at issue . Decision no . I. ÚS CARDINAL/CARDINAL of DATE could not be effective prior to its adoption and publication in LAW . In any event , it did not affect the decision on amnesty of DATE . The above conclusions were later published in ORG of ORG .

On DATE the applicant complained that the authorities which had taken decisions leading to his detention ( ORG , police investigators , ORG in GPE and the Bratislava CARDINAL ORG ) had infringed his rights under LAW .

The Constitutional Court ( Second Chamber ) declared the submission inadmissible on DATE . It held that the proceedings in issue were still pending . The above authorities had acted in accordance with the relevant law and there was no indication that the applicant ’s rights under LAW had been violated .

On DATE the applicant lodged another petition with ORG . He alleged a violation of LAW in that he had been prosecuted for offences which were covered by the amnesty of DATE and CARDINAL DATE .

DATE . On DATE ORG dismissed the petition as being manifestly ill - founded . The decision stated , inter alia , that decision no . I. ÚS CARDINAL/CARDINAL of DATE concerned merely the interpretation of the relevant provision of the LAW . It did not , as such , retroactively affect the validity of the decision on amnesty of DATE as the decision on the interpretation of the relevant provisions of the LAW had produced effects only following its publication in LAW on DATE . Finally , the decisions on amnesty of DATE and DATE respectively concerned offences relating to the “ notification ” of the abduction of PERSON and his “ reported abduction ” , but not any offences committed in the context of his abduction as such . The prosecution of the applicant for the last - mentioned offences was therefore permissible in any event .

On DATE ORG declared partly admissible a complaint by CARDINAL of the applicant ’s co - accused ( case no . ORG CARDINAL/CARDINAL ) .

The decision addressed , inter alia , the question whether the ORG had authorised the Prime Minister , as required by LAW , to give a decision on amnesty on DATE . ORG had submitted only a decision of DATE authorising PERSON to exercise certain presidential powers including those under LAW ) of the LAW . No separate decision to similar effect had been submitted indicating that the new ORG set up following the parliamentary election held in DATE had authorised its Prime Minister , PERSON , to exercise the presidential power in issue . ORG concluded that the decision on amnesty of CARDINAL DATE had been given contrary to LAW and was therefore not a legal act ( non negotium ) .

On DATE ORG allowed both PERSON M. Dzurinda , the Prime Minister , and the applicant to intervene as third parties in the proceedings . The former alleged that he had been duly authorised to use the presidential power under LAW ) of the LAW . ORG held that it had determined that issue in its above - mentioned decision of DATE .

On DATE ORG found a violation of the petitioner ’s rights under LAW in that the investigator had brought criminal proceedings against him , on DATE , notwithstanding that the offences of which he had been accused were covered by the amnesty of CARDINAL DATE and DATE . ORG quashed the investigator ’s decision . As a result , the criminal proceedings against the petitioner were dropped .

The investigator ’s decision of DATE to discontinue the criminal proceedings was final and could not be changed under NORP law .

ORG also addressed the question as to the date from which its above - mentioned decision no . I. ÚS CARDINAL/CARDINAL was effective . That decision concerned the interpretation of LAW ) of LAW and , as such , was of a declaratory nature . Where relevant , such a decision was effective ex tunc . The fact that a public authority , prior to the finding of ORG , had considered its actions to be in conformity with the LAW could not serve as a justification for such actions once ORG had found that this was not the case .

The Constitutional Court ( First Chamber ) dismissed the argument that its decision no . I. ÚS CARDINAL/CARDINAL had been effective only from the moment of its publication in LAW on DATE . In particular , neither LAW DATE nor LAW DATE provided for compulsory publication in LAW of a decision under LAW . The binding effect of similar decisions could not , therefore , depend on whether or not they were published in LAW .

The judgment no . I. ÚS CARDINAL/CARDINAL of DATE was later published in ORG of ORG . The conclusion was highlighted , as relevant case - law , that prosecution of a person for actions whose criminal character had ceased to exist was contrary to LAW .

Judge PERSON disagreed with the above - mentioned decisions by ORG composed of CARDINAL judges . At that time the relevant statutory provisions did not allow separate opinions to be published together with the judgment . His dissenting opinion was later published in the journal PERSON revue ( no . CARDINAL/CARDINAL ) .

The view was expressed in the opinion that judgment no . I. ÚS CARDINAL/CARDINAL departed from the previous ( and established ) practice concerning the requirement to exhaust the other available remedies prior to lodging a complaint with ORG . Such a decision had caused legal uncertainty and could lead to confusion as to which authorities were primarily charged with the protection of ORG fundamental rights and freedoms . Such departure from the previous practice of ORG had no objective justification .

After delivery of ORG decision no . PERSON , ORG of GPE , on DATE , issued a statement expressing the standpoint of ORG . The statement indicated that the interpretation by LAW CARDINAL(i ) of the LAW was to apply for the future and had no effect on the binding character of decisions on amnesty which had been previously published in LAW .

There had been no reason for the proceedings against the applicant to be discontinued since a grammatical and logical interpretation of the relevant provisions of the amnesty decisions of DATE and DATE led to the conclusion that those decisions did not apply to the criminal offence of forcible abduction of PERSON junior to a foreign country , committed on DATE , as such or to other criminal offences which the criminal proceedings concerned .

Finally , reference was made to several sets of proceedings pending before ORG , whose outcome was decisive for the further examination of the charges against the applicant and his co - accused .

After the applicant ’s release a group of members of parliament attempted , on several occasions , to revoke the above - mentioned decisions on amnesty by Mr Mečiar by tabling a draft constitutional law to that effect . The attempts failed as the proposal was not supported by the required majority of CARDINAL members of parliament .

Until DATE Article CARDINAL(i ) read as follows :

“ The President [ of GPE ] grants amnesty , pardons or mitigates sentences imposed by criminal courts , orders that criminal proceedings should either not be started or not be pursued and expunges sentences . ”

With effect from DATE the above provision was replaced by LAW ) and CARDINAL which read :

“ CARDINAL . The President [ of GPE ] ... ( i ) grants amnesty , pardons or mitigates sentences imposed by criminal courts , orders that criminal proceedings should either not be started or not be pursued and expunges sentences .

A presidential decision on ... amnesty is valid subject to its signature by the Prime Minister or a minister empowered to do so . In such cases the Government bears the responsibility for the President ’s decision . ”

With effect from DATE Article CARDINAL § CARDINAL(j ) entitles the President of GPE to pardon and mitigate sentences imposed by courts in criminal proceedings and to expunge convictions by means of an individual pardon or an amnesty . LAW CARDINAL provides that a decision on amnesty is valid subject to its signature by the Prime Minister or a minister whom the latter has duly authorised . In such cases the Government bears the responsibility for the President ’s decision .

In a commentary on the LAW written by a group of authors headed by the then President of ORG and published in DATE the view was expressed that a presidential decision on an amnesty could not be quashed ( PERSON a kolektív : PERSON k PERSON republiky , GPE slovenská DATE , p. CARDINAL ) .

DATE . Article CARDINAL § CARDINAL obliges ORG authorities to act exclusively on the basis of the LAW and within its scope . The mode and extent of their action is to be governed by law .

Under LAW , any person can be prosecuted or deprived of his or her liberty only for reasons and by means provided for by law . Under paragraph CARDINAL of Article CARDINAL , a person can be remanded in custody only for reasons and during a period of time provided for by law and in accordance with a decision of a court .

Article CARDINAL § CARDINAL provides that the Government , which may authorise the Prime Minister to act on its behalf in that respect , is entitled to exercise a certain number of presidential powers when the office of the President is vacant or when the President is prevented from carrying out his or her duties . Until DATE those powers included the prerogative of mercy within the meaning of LAW ) of LAW .

Article CARDINAL § CARDINAL , as in force at the relevant time , provided :

“ The Constitutional Court shall interpret constitutional laws where there is a dispute about the point in issue . A law shall provide for the conditions . ”

As from DATE Article CARDINAL provides :

“ The Constitutional Court shall give an interpretation of the LAW or a constitutional law where a dispute exists over the matter . ORG decision on interpretation of the LAW or a constitutional law shall be made public in the same manner as laws . The interpretation [ given by ORG ] is binding for everybody from the date of its publication . ”

In judgment no . I. ÚS CARDINAL/CARDINAL of CARDINAL DATE ORG specified the legal effects of its decisions on the interpretation of LAW . It characterised such decisions as a general expression , by an independent judicial body in charge of protection of LAW , of the legal view on the implementation of a provision over which there was a dispute . According to the judgment , such decisions in themselves can not , however , establish , modify or remove the rights either of the parties to the proceedings in the context of which the relevant dispute arose or of any third persons .

The following relevant provisions of LAW were in force at the material time .

Pursuant to section CARDINAL , where a chamber of ORG , in the context of its decision - making activity , reaches a different legal opinion from that expressed by another chamber of ORG under LAW , the chamber concerned has to submit the matter for examination at a plenary meeting of ORG . The conclusion reached at the plenary meeting is binding on the chamber concerned .

Section CARDINAL(CARDINAL ) provides that the ORG delivers a judgment ( nález ) on the merits of the case unless LAW provides otherwise . It determines other matters by means of a decision ( uznesenie ) .

DATE . Pursuant to section CARDINAL(CARDINAL ) , as in force until DATE , where the view of ORG expressed in a judgment on the merits of a case or in a decision on the interpretation of constitutional laws under LAW was of general importance , ORG could decide to have it published in LAW . Since DATE publication in LAW of such decisions has been mandatory ( section ORG ) ) .

Pursuant to section DATE , requests for interpretation of constitutional laws are examined in camera by CARDINAL of the chambers of ORG . The chamber delivers decisions in such cases .

The following provisions of LAW were in force at the relevant time .

Article CARDINAL was entitled “ Inadmissibility of Criminal Prosecution ” . Pursuant to paragraph CARDINAL(a ) , as in force until DATE , criminal proceedings could not be brought or , if they had already been instituted , were to be discontinued when an order to that effect was given by the President in the exercise of his right to grant a pardon or an amnesty .

Under LAW ) , criminal proceedings can not be brought or , if they have already been instituted , are to be discontinued when , inter alia , earlier criminal proceedings against the same person concerning the same matter were discontinued by means of a final decision , with the exception of cases where such final decision was quashed in subsequent proceedings provided for by law .

Pursuant to LAW ) , an accused can only be remanded in custody when there are specific grounds to believe that he or she will influence witnesses or the co - accused or otherwise hamper the investigation into the relevant facts of the case .

Article CARDINAL in conjunction with Article CARDINAL provides that only a person accused of an offence in the context of criminal prosecution can be remanded in custody .

Pursuant to LAW , a public prosecutor , an investigator or a police authority at a stage prior to bringing criminal proceedings is obliged to set a case aside by means of a decision where criminal prosecution is inadmissible within the meaning of LAW of LAW .

Article CARDINAL § CARDINAL(c ) in conjunction with Article CARDINAL § DATE ) provides that a court has to discontinue criminal proceedings , after a preliminary examination of the indictment , where prosecution is not permissible for reasons set out in LAW .

A group of CARDINAL lawyers specialising mostly in constitutional law made public their opinion disagreeing with ORG judgment no . ORG CARDINAL/CARDINAL and its decision no . I. ÚS CARDINAL/CARDINAL . They argued that a decision of ORG on the interpretation of a provision of the LAW could not have retroactive effect . Such decisions produced effects only after their promulgation .

The authors of the article also challenged the decision on amnesty of CARDINAL DATE as they considered it to be in breach of the President ’s duty to act in the interests of the citizens and to abide by LAW . The ORG other objections related to the admission , by ORG , of a petition by a group of CARDINAL members of parliament in case no . I. ÚS CARDINAL/CARDINAL and of a petition by CARDINAL of the applicant ’s co - accused in case no . ORG CARDINAL . Criticism was also expressed that in the latter case legal conclusions had been drawn in respect of the applicant notwithstanding the fact that he had not been a party to those proceedings .

In its ORG on ORG in DATE ORG , an independent non - governmental organisation , strongly criticised the decisions of ORG nos . ORG CARDINAL/CARDINAL and ORG for reasons similar to those expressed in the above - mentioned article published by a group of lawyers .

Amnesty and pardon are the CARDINAL principal forms employed within the general concept of mercy in the Contracting Parties to the Convention .

As to the distinctions between them , firstly , amnesty is usually referred to as a measure which is impersonal and applies to all persons or to a class of persons , while a pardon concerns a specific individual or a group of individuals . Secondly , while a pardon typically serves to remit a sentence , an amnesty may be granted before criminal proceedings have commenced or at any stage thereafter . Thirdly , while amnesty is usually considered to fall within the realm of the legislature , the power to grant a pardon is seen as CARDINAL of the prerogatives of the head of ORG .

In certain Contracting Parties the above distinctions between the CARDINAL concepts are not always present or are not clearly indicated , as a result of which , in legal theory , the clemency institutions are considered to have “ hybrid forms ” in relation to the above CARDINAL general notions ( for example , “ generic ” or “ collective ” pardons in GPE and GPE or “ grâce amnistiante ” and “ admission par décret au bénéfice de l’amnistie ” in GPE ) . There is no significant functional difference between the different concepts employed as their common purpose has been to remove the effects or consequences of a completed or pending criminal conviction .

The powers of heads of ORG in the decision - making process in matters relating to measures of clemency and possible review of such measures depends on the constitutional model adopted by the country concerned .

In the Contracting Parties to the ORG , there is a general trend towards excluding the executive ’s decisions on pardon from judicial control on account of the discretionary and sui generis nature of such decisions . The Constitutions and other legal norms in GPE do not provide for the possibility of revocation of pardons granted unconditionally .

In legal theory a variety of views have been expressed . Several authors have argued that pardons are irrevocable on the basis of the classical theory of administrative law , maintaining that an individual administrative decision addressed to a particular person can not be subject to revocation . Other authors have argued that , even though there is no right to a pardon , once it has been granted , such a measure creates rights for the pardoned individual and the sphere of freedom granted by the executive power becomes inalienable . ORG have also been expressed that pardons can be revoked on the limited grounds of error , fraud on the part of the pardoned person , or the existence of concomitant or previous circumstances which were not known by the authority granting the pardon .

Pardons granted by the executive are generally conceived as atypical discretionary acts , granted in the framework of relations between the branches of power or in the sphere of execution of penalties . As such , they can not be construed as normal administrative measures subject to ordinary judicial review . In spite of the fact that the power to pardon is in principle delimited by the constitutional norms or principles of the rule of law ( such as the necessity of sanctions , legal certainty , protection of public order , separation of powers and equality ) , the possibilities for the judiciary to review or overturn a pardon seem to be very limited in the majority of GPE . The discretionary character of these measures does not , in principle , allow for their revocation .

With regard to amnesties , their retroactive revocation is generally not allowed , as they are adopted by the legislature and their revocation would be contrary to the principle of legal certainty and to the principle of non - retroactivity of criminal law .

On DATE ORG of ORG adopted ORG CARDINAL/CARDINAL proclaiming the LAW from Enforced Disappearance as a body of principles for the ORG member GPE . LAW reads :

“ CARDINAL . Persons who have or are alleged to have committed offences referred to in DATE , paragraph CARDINAL above [ i.e. all acts of enforced disappearance ] , shall not benefit from any special amnesty law or similar measures that might have the effect of exempting them from any criminal proceedings or sanction .

In the exercise of the right of pardon , the extreme seriousness of acts of enforced disappearance shall be taken into account . ”

In LOC GPE judgment ( Series C No . DATE ] , IACHR CARDINAL , DATE , § CARDINAL ) ORG held :

“ ... all amnesty provisions , provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible , because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture , extrajudicial , summary or arbitrary execution and forced disappearance , all of them prohibited because they violate non - derogable rights recognized by international human rights law . ”

In GPE v. GPE ( DATE , § CARDINAL ) ORG held :

“ ... any other domestic legal obstacle that attempts to impede the investigation and punishment of those responsible for human rights violations are inadmissible ” .

The Special Court of PERSON has held that the amnesty granted under LAW of DATE does not bar the prosecution of an accused for international crimes within the jurisdiction of that special court ( ORG : cases No . SCSL-CARDINAL - CARDINAL-PT , and No . SCSL-CARDINAL - CARDINAL-PT , CARDINAL March CARDINAL ) .