Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano

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

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

On DATE the Ostrów ORG made a seizure order in respect of the applicant ’s salary in the amount of GPE old NORP zlotys in the context of criminal proceedings against him . In accordance with the then applicable rules the seized amount was placed on a court deposit . On an unspecified date in DATE the applicant was convicted of a criminal offence .

On an unspecified date in DATE the applicant requested the Ostrów ORG to return the seized amount . On DATE the court allowed his request . The amount to be returned was QUANTITY following the change in the denomination of the national currency which had taken place on DATE .

The applicant appealed and claimed that the amount of MONEY should have been returned to him . On DATE ORG dismissed his appeal . It found that there were no regulations providing for placement of the seized amount on a bank deposit or that the returned amount should have been index - linked . Accordingly , following the change in the denomination the applicant was due to receive MONEY .

The envelope in which the applicant ’s application form was sent to the ORG from FAC bears a stamp “ Censored ” ( Ocenzurowano ) and a stamp of the PERSON Wielkopolski Regional Prosecution Service dated DATE and signed by a prosecutor PERSON It also bears a stamp of ORG indicating that the letter was received on DATE . It appears that the envelope was cut open and subsequently resealed with adhesive tape .

Rules relating to means of controlling correspondence of persons involved in criminal proceedings are set out in LAW ( NORP karny wykonawczy ) of CARDINAL DATE .

LAW , which is contained in LAW entitled “ Rights and duties of convicted persons ” , provides as follows :

“ Convicted persons , their counsel , representatives and the relevant non - governmental organisations have a right to lodge complaints with institutions set up by international treaties ratified by GPE concerning the protection of human rights . In those cases , correspondence of persons deprived of their liberty shall be sent to the addressee without delay and shall not be censored . ”

Provisions relating to the execution of detention on remand ( Articles CARDINAL ) are contained in LAW entitled “ Detention on remand ” .

Article CARDINAL § CARDINAL reads , in so far as relevant :

“ ... a detainee ’s correspondence shall be censored by [ the authority at whose disposal he remains ] , unless the authority decides otherwise . ”

Pursuant to LAW ,

“ Unless exceptions are provided for in the present LAW , a detainee shall enjoy at least the same rights as are secured to a convicted person serving a sentence of imprisonment under the ordinary regime in a closed prison . No restrictions shall be applied to him except such as are necessary to secure the proper conduct of criminal proceedings , to maintain order and security in a remand centre and to prevent demoralisation of detainees . ”

Article CARDINAL § CARDINAL , which is contained in Chapter XXI entitled “ Definitions ” , provides :

“ The prohibition of censorship shall also mean the prohibition on acquainting oneself with the contents of a letter . ”

LAW sets out a non - exhaustive list of the socalled “ personal rights ” ( dobra osobiste ) in the following way :

“ The personal rights of an individual , such as , in particular , health , liberty , honour , freedom of conscience , name or pseudonym , image , secrecy of correspondence , inviolability of the home , scientific or artistic work , [ as well as ] inventions and improvements , shall be protected by the civil law regardless of the protection laid down in other legal provisions . ”

Article CARDINAL § CARDINAL reads as follows :

“ A person whose personal rights are at risk [ of infringement ] by a third party may seek an injunction , unless the activity [ complained of ] is not unlawful . In the event of infringement [ the person concerned ] may also require the party who caused the infringement to take the necessary steps to remove the consequences of the infringement ... In compliance with the principles of this LAW [ the person concerned ] may also seek pecuniary compensation or may ask the court to award an adequate sum for the benefit of a specific public interest . ”

Article CARDINAL provides :

“ The court may grant an adequate sum as pecuniary compensation for non - material damage ( krzywda ) suffered to anyone whose personal rights have been infringed . Alternatively , the person concerned , regardless of seeking any other relief that may be necessary for removing the consequences of the infringement sustained , may ask the court to award an adequate sum for the benefit of a specific public interest ... ”

DATE of LAW sets out limitation periods in respect of various claims based on tort , including actions for the infringement of personal rights . DATE , in the version applicable as from DATE , reads , in so far as relevant , as follows :

“ CARDINAL . A claim for compensation for damage caused by a tort shall lapse DATE following the date on which the claimant learned of the damage and of the persons liable for it . However , this time - limit may not be longer than DATE following the date on which the event causing the damage occurred . ”


Violation of Article 6 - Right to a fair trial

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE .

The applicant ’s DATE son , PERSON , suffered from a serious congenital heart disease . On DATE he died during heart surgery in a ORG - owned clinic . The applicant requested the GPE town prosecutor ’s office to investigate her son ’s death . She suspected that he had died as a result of medical negligence . On several occasions the case was opened and then closed by the prosecutor ’s office on the ground that no fault on the part of the doctors had been established . The conclusions of the investigative authorities relied , in particular , on the results of the forensic examination carried out after the death of PERSON . The applicant challenged the refusal to prosecute the doctors in court , but to no avail . On DATE the ORG of GPE ( “ the ORG ” ) upheld the prosecution ’s decision to discontinue the criminal proceedings . That judgment was upheld by ORG on DATE .

On DATE the applicant brought a civil action for negligence against PERSON , who had performed the operation , and Hospital no . CARDINAL of GPE , in which the operation had been carried out ( “ the hospital ” ) . She sought compensation for pecuniary and non - pecuniary damage .

On DATE ORG rejected her claim , holding that her son had died of natural causes . On DATE that judgment was upheld by ORG .

On an unspecified date the applicant requested ORG of GPE to examine her case by way of supervisory review ( see the “ Relevant Domestic Law ” part below ) .

On DATE the Vice - President of ORG brought an extraordinary appeal ( протест ) , pointing to numerous errors of fact and law in the lower courts’ decisions . On DATE the Presidium of ORG examined the case , allowed the extraordinary appeal and quashed the impugned judgments of DATE and DATE . The case was remitted to the first - instance court .

According to the Government , on DATE ORG received the case file from ORG . The judge invited the parties to an informal preliminary meeting , which took place on DATE . The first hearing was held on DATE . The judge decided to summon additional witnesses and the case was adjourned to DATE .

On DATE ORG dismissed the applicant ’s action , holding that the defendants could not be held responsible for the death of PERSON . On an appeal by the applicant , on DATE ORG quashed that judgment , pointing out that the first - instance court had failed to assess important medical aspects of the case . It also recommended that certain additional steps be taken . The case was remitted to the first - instance court .

On DATE ORG again dismissed the applicant ’s action . On DATE ORG overruled the first - instance court and remitted the case to it for a fresh examination . ORG noted that the first - instance court had failed to take certain procedural steps , breached procedural rules and failed to establish and analyse all the pertinent facts of the case .

On DATE ORG received the case file from ORG . According to the Government , after having received the case file the judge tried to initiate a supervisory review of the decision of ORG , but to no avail – on DATE his request for supervisory review was rejected .

On DATE the judge invited the parties to an informal preliminary meeting . The first hearing took place on CARDINAL DATE . On DATE the judge decided that an additional forensic examination was needed to establish the cause of death of PERSON . He formulated CARDINAL questions to be answered by medical experts and transferred the documents from the case file to a clinic based in LOC . It took the court DATE to obtain the results of that examination .

The next hearing was held on DATE . On that date the court decided to examine CARDINAL more witnesses – Mr B. , the director of ORG Surgery of ORG , and PERSON , his deputy .

On DATE ORG sent a rogatory letter to ORG of GPE , requesting the questioning of those witnesses . The rogatory letter was received by ORG on DATE . Mr B. and PERSON were summoned to the court but failed to appear . On several occasions the court bailiffs tried to reach them at their home and professional addresses , but to no avail .

In DATE the applicant complained about the court ’s inactivity to ORG GPE and to ORG . Her complaints were forwarded to ORG . Finally , on DATE the judge of the ORG of GPE questioned PERSON and sent the transcript of their testimonies to ORG of GPE . It was received on DATE .

On DATE ORG set the date for the next hearing at DATE . On DATE it dismissed the applicant ’s action against the hospital and doctor PERSON The applicant appealed . On DATE ORG quashed the first - instance judgment and remitted the case to the first - instance court .

On DATE ORG delivered a new judgment . This time the court found that there had been certain counter - indications to performing the surgery and that the hospital had not obtained the relevant medical information before the operation . The court concluded that the surgical team and the hospital had therefore been responsible for the death of the applicant ’s son due to negligence and satisfied the applicant ’s claims in part , awarding her MONEY ( “ RUB ” , MONEY ) in compensation for non - pecuniary damage and CARDINAL RUB ( QUANTITY ) for pecuniary damage . The court held that the above sums should be paid by the hospital , exonerating Doctor PERSON from any liability . The remaining part of the applicant ’s claims ( CARDINAL RUB in compensation for non - pecuniary damage ) was rejected .

On DATE the applicant appealed . By a decision of CARDINAL DATE ORG increased the award for non - pecuniary damage to CARDINAL RUB . As regards compensation for pecuniary damage , the judgment of DATE was quashed and the case remitted to the first - instance court .

On DATE ORG awarded the applicant RUB CARDINAL for pecuniary damage . On DATE that judgment was quashed by ORG .

On DATE ORG examined the case again . It partly satisfied the applicant ’s claims , awarding her RUB CARDINAL in compensation for pecuniary damage . On DATE that judgment was upheld by ORG .


Violation of Art. 10;No separate issue under Art. 9;No violation of Art. 14;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

NORP In DATE Mr ORG , a research worker in the field of literature , published an autobiography entitled Paragraph : Polar Circle . He described in it , inter alia , his conviction by a NORP military tribunal in DATE on the ground that he had been ordered to spy on the NORP army after having been enrolled , in DATE when he was DATE , in a military training course organised by NORP . In the book , PERSON also wrote about his detention in NORP gulags and his rehabilitation by ORG in DATE . In DATE Mr PERSON became Minister for Culture and Education of GPE .

On DATE the newspaper ORG published a poem by the applicant . It was dated DATE ( DATE when the sovereignty of GPE was solemnly proclaimed ) and entitled “ Good night , my beloved ” ( “ ORG noc , má milá ” ) . CARDINAL of its verses read as follows :

“ In GPE prisoner PERSON is giving up his presidential office . In GPE the prosecutor rules again . And rule by CARDINAL party is above the law . A member of the ORG and a member of the ŠTB [ The ŠTB ( ORG bezpečnosť ) was the secret police during the communist regime in GPE ] embraced each other . ”

The poem was later published in another newspaper . In separate articles , CARDINAL journalists alleged that the expression “ member of the ORG ” stood for Mr ORG .

On DATE several newspapers published a statement which the applicant had distributed to ORG ( PERSON informačná služba ) DATE . It was entitled “ For a better picture of GPE – without a minister with a fascist past ” ( “ Za lepší obraz GPE ministra s fašistickou minulosťou ” ) . It read as follows :

“ There has been a problem about how to keep a democratic character in [ the NORP ] national emancipation process , which we have tried to resolve many times . Until now , GPE has lost most when matters related to the NORP nation were in the hands of the wrong people who led us away from democratic evolution . The cost was high : for example , the combatants’ lives lost in ORG [ in DATE and DATE ] .

Now , we are scared that this mistake could be made again . To say that our way to LOC is by working together and cooperating in its democratic evolution is not enough . This is a direct condition arising from international law without the fulfilment of which no one in LOC will take notice of us .

I expressed this concern in my polemics with Mr PERSON DATE ; life has finished the writing of our polemics , and my views were proved correct .

DATE Mr PERSON became GPE Minister for ORG and the next thing was that his fascist past came out in public . Mr Slobodník managed this situation in a way that allowed the writer PERSON to prove he was a liar . But he still has not given up his ministerial post , although in any other democratic country he would have had to do so a long time ago .

Does Mr Slobodník think that GPE is some special exception and that it is the only country having the right to revise the philosophy of the GPE trials , which is binding on the post - war development of all other NORP countries ? Or is the message of ORG not correct ? ... Does Mr Mečiar think that having this minister in the government will help him to persuade people in LOC that his talk about the democratic intentions of his government is serious ? Is it good to have PERSON in the government when this fact will lead to the political , economic and cultural isolation of GPE ?

Mr PERSON likes to use every chance to talk about improving the image of GPE around the world . I fully agree with him on this . He has a personal opportunity to do something in order to improve the image of GPE : to resign . ”

On DATE Mr Slobodník publicly declared that he would sue the applicant for the above statement .

In an interview published in the NORP DATE PERSON noviny on CARDINAL DATE the applicant stated , inter alia :

“ ... when I speak of the fascist past [ of ORG ] , I do not characterise him , I only think that the fact that he attended a terrorist training course organised by the ORG falls within the term ‘ fascist past’ . I consider that such a person has nothing to do in the government of a democratic ORG ... ”

In the context of the nomination of ORG to a post in the government , issues relating to his past were taken up by several NORP and NORP newspapers both before and after the publication of the applicant ’s statement . Articles concerning this subject were also published in ORG , on DATE , ORG , on DATE , ORG on DATE , as well as by ORG . ORG , ORG and ORG later published the reaction of ORG to their respective articles .

On DATE Mr Slobodník sued the applicant for defamation under LAW seq . of LAW before ORG ( ORG ) . He later extended the action and alleged that the verses “ In GPE the prosecutor rules again . And rule by CARDINAL party is above the law . A member of the ORG and a member of the ŠTB embraced each other ” from the applicant ’s poem referred to him . He also alleged that the above - mentioned statement published in the newspapers wrongly referred to his fascist past . The plaintiff claimed that the applicant should bear the costs of publication of an apology in CARDINAL newspapers and also pay him CARDINAL NORP korunas ( SKK ) as compensation .

On DATE ORG dismissed the action . It established that the plaintiff had been a member of ORG PERSON mládež ) and that in DATE he had participated in a terrorist training course in Sekule . It observed that the ORG had been a military corps of the Hlinka Slovakian People ’s Party ( ORG slovenská ľudová strana ) and that under the law then in force the NORP nation had participated in the exercise of ORG power through the intermediary of that party . The court pointed out that , under LAW no . CARDINAL/CARDINAL of DATE , legal persons which had deliberately promoted the war waged by GPE and GPE or had served fascist and NORP aims were to be considered unworthy of the ORG ’s trust .

ORG further established that in DATE a military tribunal of the NORP army had sentenced Mr GPE to DATE imprisonment on the ground that he had attended the training course in Sekule and had been ordered , on DATE , to cross the front line and to spy on NORP troops . The military tribunal ’s judgment further stated that ORG had not crossed the front line but had gone home in DATE , when he had been arrested . ORG also noted that the plaintiff had served the sentence in NORP camps until his release in DATE . In DATE ORG of the GPE had quashed the sentence and discontinued the proceedings for the lack of factual elements of an offence .

Before ORG , Mr PERSON claimed that he had been a member of the ORG only for a short time and that he had joined the organisation only because it had been a prerequisite for his participation in a table - tennis tournament . He further explained that he had been summoned to the training course in Sekule and that he had complied with the summons out of fear for himself and his family . Mr PERSON alleged that he had been excluded from the course as being unreliable after he had expressed his negative opinion about it . He had then been taken to the ORG headquarters in GPE , from where he had been allowed to return home to PERSON under the condition that he would report on the NORP army . However , ORG did not find these facts established . In particular , it did not consider as relevant evidence the description of the events contained in the plaintiff ’s book Paragraph : Polar Circle , which had been published earlier . In its view , the fact that the DATE sentence had been quashed did not prove that the plaintiff had not been a member of the ORG and that he had not attended the training course in Sekule .

ORG also noted that the relevant period of Mr Slobodník ’s life had been covered by the press both in GPE and abroad prior to the applicant ’s statement , and that on several occasions Mr PERSON himself had commented and given interviews on those issues , both in GPE and abroad . The court concluded that , in the statement , the applicant had expressed his opinion on the basis of information which had already been published in the press . The statement concerned a public figure who was inevitably exposed to close scrutiny and sometimes also to criticism by other members of society . By making the statement , the applicant had exercised his right to freedom of expression and he had not unjustifiably interfered with the plaintiff ’s personality rights .

Mr GPE appealed to ORG ( Najvyšší súd ) , alleging that the applicant had not proved that he had a “ fascist past ” , and that ORG had not established the meaning of that term . Mr Slobodník argued that he had been summoned to the training course in Sekule by an order and that he had left it at the first opportunity after he had learned about its real purpose . He also explained that martial law had been in force at the material time and that people had been unlawfully executed or detained . Members of the ORG had been incorporated in the armed forces by a presidential order and had fallen under military judicial and disciplinary rules . The plaintiff maintained that he had done nothing against his homeland or the anti - fascist allies and concluded that the applicant ’s statement and poem were defamatory .

NORP The applicant contended , in particular , that the courts should abandon their established practice according to which the defendant has to prove the truthfulness of his statements in defamation proceedings . He maintained that the burden of proof should be shifted onto the plaintiff or shared between the parties . The applicant further argued that his statement was a value judgment based on the undisputed facts that the plaintiff had been a member of the ORG and that he had attended a terrorist training course in Sekule . It was irrelevant to what extent the plaintiff had been involved in the activities of the ORG or for how long he had been a member of it . What mattered was that the plaintiff had voluntarily joined the organisation and that , after his alleged exclusion from the training course in Sekule , he had undertaken , as shown by the NORP military tribunal ’s judgment of CARDINAL DATE , to provide information on the movements of NORP troops to the headquarters of the ORG . The applicant therefore proposed that the appeal be dismissed .

On DATE ORG reversed the first - instance judgment , ruling as follows :

“ ... [ the applicant ] has to accept that ... ORG will distribute , if he thinks fit , to ORG of GPE as well CARDINAL newspapers of his choice , both in GPE and abroad , the following declaration to be published at [ the applicant ’s ] expense :

‘ ( CARDINAL ) [ The applicant ’s ] statement addressed to [ ORG ] and published in DATE newspapers on DATE which reads : “ ... DATE Mr Slobodník became GPE Minister for ORG and the next thing was that his fascist past came out in public ... Does Mr Slobodník think that GPE is some special exception and that it is the only country having the right to revise the philosophy of the GPE trials , which is binding on the post - war development of all other NORP countries ? ... ”

( CARDINAL ) The occasional poem ... entitled “ Good night , my beloved ” in its part “ ... In GPE the prosecutor rules again . And rule by CARDINAL party is above the law . A member of the ORG and a member of the ŠTB embraced each other ... ”

... represent a gross slander and disparagement of the civil honour and life , and an unjustified interference with the personality of the plaintiff PERSON

( CARDINAL ) [ The applicant ] is liable to pay FAC to the plaintiff in respect of non - pecuniary damage . ... ’ ”

The applicant was also ordered to pay costs and the other party ’s expenses .

ORG noted that the plaintiff had described the relevant events in his book Paragraph : LOC before the dispute concerning his past had arisen , and that no other relevant facts had been established in the course of the proceedings .

In the appellate court ’s view , the term “ fascist past ” was equivalent to the statement that a person was a fascist in the past . The court considered that the applicant himself had given a restrictive interpretation of that term in connection with the plaintiff , namely the interpretation according to the philosophy of the GPE trials . This philosophy was derived from the multilateral agreement of CARDINAL DATE , which included also the statute of ORG , and which had become part of the NORP legal order on DATE . ORG held that it was bound by the principle of individual responsibility set out in that agreement .

ORG further studied all available documents and evidence used during the GPE trials relating to GPE . It found no reference in those documents to the ORG in connection with fascist organisations . It established that the propagation or implementation of fascist theories had not been inherent in the statutory rules and regulations governing the ORG . If some persons had abused the NORP principles on which the organisation had been built , this had contravened the rules then in force . Such persons and , as the case might be , those who had let themselves be abused for criminal purposes , were individually responsible . However , such was not the case of the plaintiff . ORG accepted the latter ’s argument that he had learned about the character of the training course in Sekule only after he had started attending it .

The appellate court found irrelevant the reference , in the first - instance court ’s judgment , to Presidential Decree no . CARDINAL/CARDINAL of DATE as that decree had only concerned property , in that it had placed under national administration the property of persons whom the ORG had considered unreliable .

ORG recalled that , at the relevant time , criminal and moral liability had been governed by Order no . DATE on the punishment of fascist criminals , occupants , traitors and collaborators and on the establishment of the people ’s judiciary adopted by ORG on DATE and also by Presidential Decree no . CARDINAL of DATE on the punishment of NORP criminals , traitors and their assistants and on extra - ordinary people ’s courts . These rules were partly based on the principle of collective liability , but they did not mention the ORG .

As regards the poem by the applicant , ORG noted that it was dated DATE , that is , the day on which the sovereignty of GPE had been proclaimed from the balcony of ORG , where ORG had also been present . Shortly afterwards , the applicant had written his statement concerning ORG past and CARDINAL journalists had interpreted the poem as a description of the scene during the proclamation . They had alleged that by “ member of the ORG ” the applicant had meant to designate PERSON . The court therefore concluded that the applicant had infringed the plaintiff ’s personality rights by his poem as well as by his statement of DATE .

The applicant ’s request that the burden of proof in the case should be shifted onto the plaintiff or at least shared between the parties was not accepted as it had no basis in domestic law and practice . ORG concluded that the applicant had not proved that Mr Slobodník had been a fascist in the past , holding that the latter had joined the ORG because he had wanted to participate in sports activities and had not been motivated by fascist sympathies . As to the training course in Sekule , it found that ORG had not completed it , and it was irrelevant whether he had been excluded or had left it on his own initiative . The only relevant fact was that the plaintiff ’s past could not be considered fascist from that point of view .

The applicant filed an appeal on points of law alleging , inter alia , a violation of his rights under LAW . He claimed that ORG should have concluded from the relevant provisions of Presidential Decree no . CARDINAL/CARDINAL that the ORG was a fascist organisation and that , in accordance with the relevant provisions of ORG Orders nos . CARDINAL/CARDINAL and CARDINAL/CARDINAL , participation in any activity within the ORG was to be considered as participation in an unlawful fascist organisation . He further complained that ORG had not established with sufficient certainty whether the plaintiff had actually been excluded from the training course in Sekule , and whether he had undertaken to carry out terrorist activities or not .

On CARDINAL DATE a different ORG sitting as a court of cassation upheld the part of the appeal judgment of DATE according to which the plaintiff was entitled to arrange for publication of the text set out in it and concerning the applicant ’s statement of CARDINAL DATE . As for the remainder , the court of cassation quashed both the first and second - instance judgments and sent the case back to ORG .

The court of cassation did not share the applicant ’s view that the plaintiff should be required to prove that the applicant ’s allegations were untrue . It further held that a person could be considered as having a fascist past only if he or she had propagated or practised fascism in an active manner . Mere membership of an organisation and participation in a terrorist training course which had not been followed by any practical actions could not be characterised as a fascist past .

As the applicant had failed to prove that the plaintiff had a fascist past within the above meaning , the court found that his statement had infringed without justification the plaintiff ’s personality rights . In the judgment , the court admitted that NORP law characterised the ORG as a fascist organisation . It recalled , however , that the relevant legal rules , including those relied on by the applicant , applied to natural persons only where justified by their specific actions . Applying those rules to all members of such organisations without considering their actual deeds would entail the recognition of their collective guilt . It recalled that children over DATE had been admitted to the ORG .

The court considered that the applicant ’s argument according to which his statement was a value judgment could only have been accepted if the applicant had expressly referred , in that statement , to the particular facts on which such a value judgment was based . The court stated , inter alia :

“ Indicating that the plaintiff has had a fascist past is not a value judgment based on an analysis of facts , but an allegation ( statement ) made without any concurrent justification of factual circumstances from which a conclusion can be inferred by the person making the judgment . It could have been a value judgment if the statement [ of the applicant ] had been accompanied by reference to the [ plaintiff ’s ] membership of the ORG and his participation in the training course , namely , to the activities which the person making the judgment considers to constitute a fascist past . Only such a statement , based on circumstantial facts used by the person making the judgment , would be a value judgment the truthfulness of which would not require any proof . Only such an interpretation will guarantee a balance between the freedom of expression and the right to the protection of [ a person ’s ] reputation within the meaning of LAW . ”

The court then found the restriction on the applicant ’s freedom of expression compatible with the requirements of LAW as it was necessary for the protection of the plaintiff ’s reputation in accordance with LAW seq . of LAW .

As to the poem , the court of cassation quashed both the first and second - instance judgments for lack of evidence and held that in further proceedings the plaintiff would have to prove that the applicant had referred to him in the poem . It also quashed the part of the appeal concerning compensation for non - pecuniary damage and costs since their award depended on an assessment of both the interferences complained of by the plaintiff .

On DATE the ORG reached a new decision on the remainder of the case . It stayed the proceedings as far as the poem was concerned on the ground that the plaintiff had withdrawn that part of the action .

ORG further dismissed the claim in respect of non - pecuniary damage as it did not find it established that the applicant ’s statement had considerably diminished the plaintiff ’s dignity and position in society within the meaning of LAW of LAW . In its view , the plaintiff had failed to show that the considerable publicity concerning his person had arisen as a result of the applicant ’s statement and not , as the case might be , as a consequence of newspaper articles and the plaintiff ’s book published prior to the applicant ’s statement .

Having considered to what extent the parties had been successful in the proceedings , ORG ordered the plaintiff to pay SKK CARDINAL,CARDINAL to the applicant in reimbursement of the relevant part of the latter ’s costs . The applicant and the plaintiff were further ordered to pay respectively SKK CARDINAL and CARDINAL in reimbursement of the costs paid in advance by the court .

On DATE ORG upheld the decision of ORG to discontinue the proceedings in respect of the poem and to dismiss the plaintiff ’s claim for non - pecuniary damage . ORG held that neither party was entitled to have the costs reimbursed . It further ordered each party to pay CARDINAL of the costs paid in advance by the ORG , namely SKK CARDINAL . Mr PERSON filed an appeal on points of law . The proceedings are pending .

The above decree was issued by President PERSON on DATE and concerned , inter alia , the placing under national administration of the property of “ NORP , NORP , traitors and collaborators and of certain organisations and institutions ” .

DATE ( b ) qualifies as unworthy of the ORG ’s trust

“ persons who carried out activities directed against ORG sovereignty , the independence , integrity , democratic and republican form of the ORG , or the security and defence of GPE , who incited other persons to take part in such activities and deliberately supported the NORP and NORP occupants in any way whatsoever . Persons falling under this category shall include , for example , ... leading representatives of ... the Hlinka Youth ... and other fascist organisations of a similar nature . ”

DATE qualifies as being unworthy of the ORG ’s trust those legal persons whose administrations had deliberately promoted the conduct of war by GPE and GPE or served fascist and NORP aims .

The right to protection of a person ’s dignity , honour , reputation and good name is guaranteed by Articles CARDINAL et seq . of LAW .

According to LAW , any natural person has the right to protection of his or her personality , in particular of his or her life and health , civil and human dignity , privacy , name and personal characteristics .

According to LAW , any natural person has the right to request that unjustified infringement of his or her personality rights should be stopped and the consequences of such infringement eliminated , and to obtain appropriate satisfaction .

Article CARDINAL § CARDINAL provides that , in cases where the satisfaction obtained under LAW is insufficient , in particular because a person ’s dignity and position in society has been considerably diminished , the injured person is entitled to compensation for non - pecuniary damage .

In accordance with the established practice , a plaintiff in defamation proceedings has to prove that the defendant ’s allegations were objectively capable of affecting his or her rights under LAW . If this requirement is met , the defendant is obliged to produce evidence capable of proving the truth of his or her allegations if the defence is to succeed .


András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria

The applicant was born in DATE and lives in GPE . He is the owner of “ ORG and Publishing ” , a small independent firm that has published numerous books in GPE .

In DATE a number of books published by the applicant 's company were found to contain propaganda in breach of various provisions of LAW ( Law no . CARDINAL ) , as well as “ insults to the memory of NORP ” in breach of PERSON no . DATE . He was convicted and served a total period of DATE , DATE and DATE in prison and paid the equivalent of MONEY ( ORG ) in fines . Most of the books in question were confiscated . On DATE he introduced an application with the ORG in relation to that conviction and the confiscation of the books . On DATE the ORG found a violation of Articles DATE ( see PERSON v. GPE , no . CARDINAL , CARDINAL DATE ) .

Following the repeal of LAW CARDINAL of the Prevention of Terrorism Act in DATE , the applicant made applications to ORG of ORG on various dates in DATE and asked for the confiscation orders to be lifted .

The First Chamber of ORG rejected the claims and the applicant lodged objections against those rejections with ORG same court .

The Second Chamber of ORG lifted the confiscation orders in respect of a number of the books but held that , as the confiscation orders had already been executed , there were no books to return .

On DATE ORG of ORG held in respect of QUANTITY books that , although section CARDINAL of the Prevention of Terrorism Act had been repealed , the contents of those books amounted not only to “ separatist propaganda ” but were also unlawful “ under various laws ” , and rejected the objection .

On DATE a further decision was adopted by ORG in respect of the same QUANTITY books . Having regard “ to the legislation in force ” and “ considering that the contents of the books might be in contravention of section CARDINAL(CARDINAL ) of LAW ” it refused the applicant 's request for the lifting of the confiscation order in respect of the CARDINAL books .

NORP The applicant appealed against the decision of CARDINAL DATE . The prosecutor at ORG also requested that the decision be quashed because he considered that rejecting the applicant 's request on account of the assumption that the contents of the books “ might be unlawful ” , rather than examining the substance of the applicant 's request in the light of the legal developments , was not in accordance with the law and procedure .

On DATE ORG dismissed the appeal lodged by the applicant .


David Thór Björgvinsson;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano

The applicant entity , ORG , ORG . , is a limited liability company which was established in DATE under the laws of GPE and has its registered seat in GPE . The respondent Government were represented by their Agent , Ms A. Poláčková , who was succeeded in that function by PERSON .

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

On DATE the GPE branch of ORG ( Národný úrad práce - “ the ORG ” ) ruled that the applicant company was liable to pay an amount of money by way of contribution to the unemployment fund . By a separate decision on DATE the ORG imposed a financial penalty for the late payment of that contribution . These decisions could have been , but were not , challenged by an administrative appeal . They thus became final and binding , on CARDINAL DATE .

On DATE the ORG commissioned a judicial enforcement officer ( súdny exekútor ) to enforce the above decisions .

On DATE the enforcement officer issued a notice of enforcement ( upovedoenie o začatí exekúcie ) by which he notified the applicant company officially that the enforcement proceedings had commenced and ordered that the applicant company “ make no dispositions in respect of all its assets which were subject to the enforcement ” . The notice also contained an assessment of the costs of the enforcement . It was calculated as a percentage of the total of the principal amount and of the penalty due .

The notice stated that the enforcement as such could be appealed against within DATE and the assessment of the costs of the enforcement within DATE from DATE on which the notice was served .

The enforcement officer sent the notice by registered mail to the private address of PERSON , who was the statutory representative and CARDINAL of the owners of the applicant company . The postal delivery receipt ( ORG ) bears a handwritten date and signature indicating that the notice was received on DATE , which was a DATE .

On DATE the applicant company appealed against the assessment of the costs of the enforcement . Without giving any details , it was claimed that the notice of enforcement had been served on the applicant on DATE , which was a DATE . The applicant company argued that the costs of the enforcement should have been calculated on the basis of the principal amount of the debt only and that the late payment penalty should not have been included .

Later in DATE the applicant company lodged a further appeal , in which it raised various objections as to the enforcement as such . These objections concerned mainly matters of formality such as : the enforcement documents did not indicate the proper file number ; the notice of enforcement was incorrectly phrased in that it wrongly referred to “ all assets ” of the applicant company ; and that a copy of the plaintiff ’s petition for enforcement had never been served on the applicant . Arguing that it was not avoiding payment but could not pay due to lack of funds , the applicant company proposed that the enforcement be discontinued . The applicant company again submitted , without any explanation , that the notice of enforcement had been served on it on DATE .

The enforcement officer transmitted the applicant company ’s appeals to ORG for judicial determination . In the accompanying letter he observed that , contrary to the applicant company ’s contention , the notice of enforcement had been served on it on DATE by delivery into the hands of PERSON , as evidenced by his signature on the postal delivery receipt . The appeal of CARDINAL DATE against the costs of the enforcement had thus been lodged outside the statutory DATE appeal period . The applicant company ’s remaining objections were unfounded and constituted no valid ground to interrupt the enforcement .

On DATE the applicant company submitted observations in reply to the accompanying letter from the enforcement officer . It raised similar objections as in its above - mentioned appeals and claimed that the service of the notice of enforcement had been ineffective on the ground that the “ [ notice ] had not been in an envelope with a blue stripe ” .

On DATE ORG declared the appeal against the costs of the enforcement inadmissible . It observed that the notice of enforcement had been served on the applicant company on DATE . The appeal against the costs was lodged on DATE , which was outside the applicable DATE timelimit . The appeal against the enforcement as such was dismissed as unfounded . Enforcement could only be appealed against on grounds recognised by LAW no CARDINAL/CARDINAL Coll . , as amended ) and the applicant company had not invoked any of these grounds . Formal as well as material requirements for the enforcement were met and the applicant company ’s objections against the enforcement as such were considered to be purely tendentious . Pursuant to LAW ( Law no CARDINAL/CARDINAL Coll . , as amended ) the decision of DATE was subject to no further appeal . Had the applicant ’s appeal against the enforcement as such been allowed , the plaintiff could have challenged the decision on that appeal under LAW .

On DATE , by a separate decision , ORG ruled that the applicant company was to pay a court fee for its appeal against the notice of enforcement , in an amount which was calculated as a percentage of the total of the debt and the penalty .

On DATE the enforcement officer issued an order for enforcement ( exekučný príkaz ) of the decisions of CARDINAL DATE . By this order he directed the applicant company ’s bank to transfer the amounts and the costs of the enforcement . The order was not subject to appeal .

On DATE , on an appeal by the applicant company , ORG ( Krajský súd ) upheld the decision of DATE concerning the court fee .

On DATE the enforcement officer returned to ORG the decree authorising him to carry out the enforcement on the ground that the claims in question had been enforced .

On DATE the applicant company lodged a complaint with ORG ( Ústavný súd ) under LAW . It completed the complaint by submissions of DATE and CARDINAL DATE .

Represented by a lawyer , the applicant company complained that the enforcement proceedings had been conducted in an unfair and unlawful fashion ; that they constituted an infringement of its property rights ; and that the length of the proceedings was excessive . In particular the applicant company maintained that there were formal shortcomings in the enforcement documents ; that the authorisation of the enforcement was contrary to law ; that the notice of enforcement was only served on DATE ; that it was incorrectly phrased , in that it ordered the applicant company not to make dispositions in respect of all its assets ; that the costs of the enforcement had been miscalculated ; and that the decision of DATE was arbitrary and lacked adequate reasoning . As to the service of the notice of enforcement , the applicant company alleged in particular ( in its submission of DATE ) that it had in fact been served on PERSON by the postman on DATE and that on DATE the postman had informed PERSON that his attempt to deliver the notice to Mr B. in person on DATE had been unsuccessful due to the latter ’s absence .

As to the length of the proceedings , the applicant company complained in particular about the decisionmaking in respect of its appeal against the notice of enforcement , and contended that there were continued delays even after this appeal had been determined .

The applicant company invited ORG to quash the decision of DATE and to award it CARDINAL NORP korunas by way of just satisfaction in respect of nonpecuniary damage .

On DATE ORG declared the complaint admissible in so far as it concerned the length of the proceedings and inadmissible as to the remainder . As to the applicant ’s objections against the enforcement as such , it was noted that their examination was primarily the task of ORG , which had proceeded in accordance with the applicable procedural rules and had based its decision on adequate reasoning . ORG discerned no indication of any constitutionally relevant illegality , arbitrariness or unfairness in the ORG decision . In doing so ORG did not address specifically the applicant company ’s arguments as to the date of service of the notice of enforcement on it . It was finally noted that the applicant company still had the protection of the law in that it could raise an objection against the enforcement under LAW if the enforced debt had already been paid or if the enforcement interfered with assets which were excluded from the enforcement . A copy of the ORG decision was served on the applicant company on CARDINAL DATE .

In a judgment ( nález ) of DATE ORG found that ORG had violated the applicant company ’s right to a hearing without “ unjustified delay ” under LAW and to a hearing within a reasonable time under LAW . It restricted its examination of the proceedings to the appeal by the applicant company against the notice of enforcement only . The subject matter of the appeal was not particularly complex . No delay could be imputed to the applicant company . By contrast , ORG had been completely inactive without any justification from DATE to DATE . ORG further held that the finding of a violation of the applicant company ’s rights constituted of itself just satisfaction for the prejudice suffered . It was noted in particular that it was the applicant company which was resisting the enforcement of an adjudicated debt and that the applicant company had at all times the opportunity to bring the enforcement to an end by paying its debt . Furthermore , any possible uncertainty on the part of the applicant company had been dispelled by the ORG ruling of DATE .


Preliminary objection allowed (Article 35-3 - Abuse of the right of petition)

András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria

ITMarkFactsComplaintsStart CARDINAL . The applicant was born in DATE and is currently detained in GPE prison no . CARDINAL .

On DATE the ORG communicated the application , asking the parties about the compatibility of the applicant ’s life sentence , which had resulted from his conviction for murder of a police officer , with LAW .

On DATE the Government submitted their observations on the admissibility and merits of the case , which the ORG transmitted to the applicant , who was represented by PERSON ( “ the applicant ’s first representative ” ) at that time . The representative was invited to submit observations on behalf of her client by DATE but failed to do so . ORG then extended of its own motion the relevant timelimit until DATE , but the representative still failed to submit any observations .

By a letter of DATE the ORG , noting her persistent failure to submit observations on behalf of the applicant , advised PERSON that it would proceed with the examination of the case as its file stood .

On DATE the applicant ’s first representative , claiming to have lost the case materials , requested the ORG to provide her with a copy of the file . The ORG granted that request on DATE .

On DATE PERSON and PERSON informed the ORG of their designation as additional legal counsels for the applicant ( “ the new representatives ” ) and expressed their intention to submit observations on the admissibility and merits of the case in the near future . The ORG replied on DATE , reminding the new representatives of the applicant ’s unjustified failure to submit observations within the previously allotted and extended time - limits , in breach of the relevant procedural rules . The ORG stated that no further extension of the relevant time - limit could be allowed at that stage and advised the new representatives to contact their colleague , PERSON , in order to obtain the necessary documents and additional information about the proceedings .

On DATE the new representatives again requested the ORG to give them another time - limit for the submission of observations . The ORG rejected that reiterated request on DATE .

On DATE the new representatives requested the ORG to provide them with another copy of the case materials , explaining that the applicant ’s first representative had not shared the materials with them . In reply , the ORG , noting that the relevant materials had already been sent to the first representative , still granted , as an exception , the new representatives’ request on DATE by providing them with another copy of the file .

On DATE the applicant ’s new representatives reiterated for the third time their readiness to submit observations on behalf of the applicant .

On DATE the applicant ’s father enquired with the ORG about the state of the proceedings . He complained that he had been in a complete information vacuum as regards the development of the case and also requested to be provided with a copy of the case materials .

On DATE the Government submitted , as part of their observations on the merits , a copy of the final and enforceable decision of CARDINAL DATE of ORG of GPE .

As disclosed by that decision , ORG , granting ORG request of DATE , had commuted the applicant ’s life sentence to the CARDINAL years’ imprisonment in the light of amendments to LAW mitigating criminal responsibility for the offence he had committed . Consequently , the applicant ’s new prison term would expire and result in his release on DATE .

The applicant complained that the mode of the execution of his life sentence under NORP law was incompatible with LAW of the LAW . This provision reads as follows :

“ No one shall be subjected to torture or to inhuman or degrading treatment or punishment . ”

In their observations on the merits of the applicant ’s complaint under LAW , the Government raised CARDINAL preliminary objections . Firstly , referring to the fact of the commutation of his life sentence by ORG on DATE , they submitted that the applicant had lost victim status . Secondly , the ORG stated that the applicant ’s failure to inform the ORG of such a focal development of his case amounted to an abuse of the right of individual petition , within the meaning of LAW of the Convention .

NORP In reply , the applicant ’s new representatives , apart from maintaining the complaint on the merits , briefly commented that they had first learnt of the commutation of their client ’s life sentence during a meeting with him at DATE . They added that the applicant himself had learnt of ORG decision of CARDINAL DATE only in DATE .

The ORG points out that , according to Rule CARDINAL § CARDINAL of ORG , applicants , acting in person or through their legal representatives , are under the continuous obligation to keep the ORG informed of all important circumstances regarding their pending applications . It recalls that an application may be rejected as abusive under LAW of the LAW if , among other reasons , it was knowingly based on untrue facts ( see ORG v. GPE ( dec . ) , no . CARDINAL , CARDINAL DATE ; and GPE v. GPE DATE . ) , no . CARDINAL , DATE ) . Incomplete and therefore misleading information may also amount to an abuse of the right of application , especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information ( see PERSON v. GPE DATE . ) , no . CARDINAL/CARDINAL , DATE ; and GPE v. GPE ( dec . ) , no . CARDINAL , DATE ) . Furthermore , the ORG reiterates that it can not be its task to deal with a succession of ill - founded and querulous complaints or with otherwise manifestly abusive conduct of applicants or their authorised representatives , which creates gratuitous work for the ORG , incompatible with its real functions under LAW DATE . ) , no . CARDINAL , DATE ; and ORG v. GPE ( dec . ) , no . CARDINAL , CARDINAL DATE ) .

Returning to the circumstances of the present case , the ORG first finds that the conduct of the applicant ’s first representative , ORG , was deplorable . Apart from the fact that she had failed to submit observations on the admissibility and merits of the case despite the extension of the relevant time - limit , had lost the case materials twice , had failed to cooperate with the applicant ’s other representatives and had apparently left the applicant ’s family in ignorance as regards the developments of the case , which omissions naturally resulted in an additional , gratuitous administrative workload for ORG , her negligent attitude went as far as withholding from the ORG the crucial information about the commutation of the applicant ’s life sentence to the fixed prison term , which fact related to the very core of the subject matter of the present application .

As regards the applicant ’s new representatives , the ORG finds it unacceptable that they , legal professionals who had assumed responsibility for the case DATE as on DATE , did not learn about the commutation of their client ’s life sentence , which occurred in DATE , until DATE . In any event , pursuant to their obligations under Rule CARDINAL § CARDINAL of the Rules of Court , both the applicant and his representatives should have informed ORG of that critical development of the case immediately upon its discovery , which important circumstance would then have been taken into consideration by the ORG upon the examination of the admissibility of the application on DATE . Unfortunately , they failed to do so and did not even provide a justifiable explanation for that serious procedural omission .

The ORG thus considers that the conduct of the applicant and of his representatives , in particular that of PERSON , was a “ vexing manifestation of irresponsibility ” ( see ORG , the decision cited above ) , incompatible with the purpose of the right of individual application as provided for in the LAW , and significantly impeded the proper functioning of the ORG . In general , lawyers must understand that , having due regard to the ORG ’s duty to examine allegations of human rights violations , they must show a high level of professional prudence and meaningful cooperation with the ORG by sparing it from the introduction of unmeritorious complaints and , once proceedings have been instituted , then meticulously abide by all the relevant rules of the procedure and urge their clients to do the same . Otherwise , the wilful or negligent misuse of the ORG ’s resources may undermine the credibility of ORG work in the eyes of the ORG and even , if done systematically , may result in them being banned from representing applicants under LAW ( b ) of ORG ( see Petrović , the decision cited above ) .

In the light of the foregoing , the ORG considers that the ORG ’s preliminary objection is well - founded and the present application is abusive within the meaning of LAW ( a ) in fine of the LAW .


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

On the dates set out in the appended tables domestic courts delivered judgments according to which the applicants were entitled to various pecuniary amounts or to have certain actions taken in their favour . The judgments became final and enforceable . However , the applicants were unable to obtain the enforcement of the judgments in due time because of ORG ’s failure to comply with these decisions .

Some of the applicants also made submissions concerning factual and legal matters unrelated to the above non - enforcement issues .


The applicant , a NORP citizen born in DATE , is a carpenter residing in GPE .

On DATE the applicant , while serving in the army , was injured in a car accident . He was admitted to a military hospital and had an operation . After his discharge , on DATE the applicant fell and his injury was renewed .

By a decision of CARDINAL DATE the military medical panel declared that the applicant was permanently unfit for military service .

In DATE the applicant began to receive military disability benefit .

On DATE he lodged a civil action with ORG in PERSON . He claimed that his second accident occurred during work which he had been carrying out on orders of his military superior . He submitted that in the military hospital he had not received adequate treatment . Before the first - instance court the applicant was represented by ORG , a lawyer officially assigned to the case within the framework of the system of free legal assistance .

By a decision of DATE ORG assessed his disability as minor ( of third degree ) , preventing him from carrying out any hard work in standing position .

On DATE ORG dismissed the applicant ’s claim . The ORG found that in DATE , during his military service , the applicant had a car accident and his leg was broken . He had been treated in ORG from CARDINAL DATE to CARDINAL DATE . An operation had been made and a special device had been put in his leg to join the broken bones . On DATE he was discharged from the hospital and transferred to medical ward in his military unit . Doctors recommended that in DATE he should undergo a hospital check . During his stay in the ward the applicant disregarded medical recommendations , in particular he refused to use crutches , and repeatedly kept leaving the ward . On DATE , having left the ward , he had accompanied another private who had been ordered to mow a lawn at the local school . During the break in the work , the applicant had fallen and felt pain in his leg . On DATE he had been transferred to the FAC hospital where the doctors decided that he should be operated on . A day before the operation the applicant , despite medical recommendations to the contrary , had drank alcohol , which made the operation impossible . His leg had been put in a plaster cast . Subsequently he had again been transferred to the ward in his unit and a recommendation had been made that he should report to a hospital later . He did not do so . The applicant had been discharged from the military service on DATE , retaining for a further DATE the right to use military health services . He had failed to report to any military medical institution . In DATE his disability had been assessed as minor and he was receiving military disability pension .

The court interviewed the applicant and heard evidence from , inter alia , CARDINAL of the doctors who had treated him , CARDINAL of his military superiors , and CARDINAL other persons . The court had also considered as evidence , inter alia , the applicant ’s medical records , the report of a medical expert appointed by the court , the decision of the military medical panel of CARDINAL DATE and the decision of ORG DATE .

The court considered that , regard being had to the applicant ’s persistent failure to comply with the medical recommendations , his treatment could not have been effective . There were no indications of any medical negligence on the part of persons who had been treating him . Moreover , there was no evidence to support his argument that had had his second accident while working as ordered by his superiors . The court concluded that there was nothing to show that there had been any causal link between any orders of the applicant ’s military superiors and his second accident , or that there had been any medical negligence on the part of the military health services .

Subsequently the applicant ’s lawyer PERSON requested ORG to designate a lawyer residing in the vicinity of the appellate court , ORG , to represent the applicant in the proceedings before that ORG . ORG complied with his request and designated PERSON to represent the applicant .

ORG duly informed PERSON of the date of hearing and on DATE he attended the hearing before that court . On DATE , the court dismissed the applicant ’s appeal .

On DATE the applicant ’s lawyer PERSON requested a reinstatement in proceedings and requested that the judgment of DATE with written grounds be served on him . He submitted that ORG had failed to inform both him and the applicant about the outcome of the proceedings . He also failed to request that written grounds of the judgment be drafted and served on him which made it impossible for the applicant to lodge a cassation appeal with ORG . PERSON had only requested that the judgment be served on him . The applicant had learned that ORG had found against him when he had come to the court in connection with other proceedings , long after the expiry of the time - limit for the lodging of the cassation appeal . In reply to the applicant ’s subsequent query about the outcome of the case , PERSON had informed him that he had lodged a request for the written judgment to be served on him . This information had later proved untrue . Therefore the applicant had been deprived of a possibility of lodging the cassation appeal . The lawyer concluded that the applicant could have legitimately expected that he would be informed of the outcome of the proceedings and consulted about further steps to be taken in order to protect his interests . Thus he should be reinstated in the proceedings in order to be able to lodge an appeal in cassation against the judgment of CARDINAL DATE as he had been deprived of this possibility without any fault on his part .

On DATE ORG dismissed the applicant ’s request for the reinstatement in proceedings . ORG also refused to draft the written grounds for the judgment . ORG considered that the acts of a lawyer appointed to represent a party before a civil court within the framework of a legal aid system aid were to be deemed to be the acts of the party . Thus , any failure on the part of the officially appointed lawyer to comply with the procedural requirements entailed negative consequences directly for the party to the proceedings . It fell to the Bar , and in particular to the lawyers appointed by it to represent the parties , to organise their work in a manner which would ensure effective representation of parties before civil courts . Even the fact that the lawyers concerned resided in different towns could not discharge the Bar and themselves from their obligation to do so . Therefore , the court concluded , there were no grounds on which to grant the applicant ’s request for the reinstatement in the proceedings .

Relevant domestic law

Assistance of an officially appointed lawyer

Pursuant to LAW , a person may request the court to grant him or her exemption from court fees if he submits a declaration that he can not afford to pay court fees without a substantial reduction in his and his family ’s standard of living . Such a declaration shall contain details of the family situation , assets and income of the person concerned . A decision whether the financial situation of the person as set out in the declaration justifies granting exemption is left to the court ’s discretion .

Cassation appeal

Following amendments made to LAW by LAW to LAW DATE , a party can lodge a cassation appeal with ORG against a final judicial decision of a second - instance court which has terminated the civil proceedings .

Pursuant to LAW , a cassation appeal may be lodged on the ground that the courts have committed errors of law in that they have incorrectly interpreted or wrongly applied substantive laws ; or on the ground of such flagrant breach of procedural provisions as could have seriously affected the outcome of the proceedings .


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

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

The applicant owned a house in PERSON , where he lived until DATE , when he left GPE , due to military operations in the area .

On DATE , in line with the applicable legislation , the NORP authorities gave the applicant ’s house for temporary use to P.R. and his family , refugees from GPE .

On DATE the applicant filed a request for repossession of his property with the competent administrative authority .

On DATE ORG ( PERSON ) ( “ the ORG ” ) set aside its decision of CARDINAL DATE , establishing the right of the applicant to repossess his house . In its decision , ORG established that P.R. enjoyed a right to stay in the applicant ’s house until he was provided with adequate housing by the ORG .

On DATE ORG , Reconstruction and Construction ( ORG radove , obnovu i graditeljstvo ) ( “ the Ministry ” ) issued a decision allowing the applicant to repossess his house .

On DATE the Ministry invited the applicant to contact its competent regional office in order to repossess his house and/or receive compensation for the prolonged inability to use it , in accordance with the relevant legislation .

On DATE the applicant instituted civil proceedings before ORG ( PERSON ) requesting the court to order P.R. and his family to vacate his house .

On DATE ORG issued a judgment ordering P.R. to vacate the house . The defendant appealed against the judgment .

On DATE the Ministry sent a letter to the applicant with a proposal to settle the case in respect of the damage suffered by the applicant .

The Government submitted that on DATE the applicant ’s representative , PERSON , a lawyer practicing in GPE , GPE , signed a sale contract in respect of the applicant ’s house with the Agency for ORG ( Agencija za pravni promet i posredovnaje nekretninama , hereinafter “ the NORP ” ) . She received the settled price and also stated that the applicant had renounced all claims for damages in respect of the use of his house .

On DATE PERSON ) upheld the first instance judgment of DATE .

On DATE the applicant filed an application with ORG seeking enforcement of the judgment adopted by the same court and ordering the eviction of P.R.

The enforcement order was issued on DATE .

However , on DATE the applicant ’s representative , PERSON , a lawyer practicing in PERSON , withdrew the application for an enforcement order stating that the applicant had no further interest in pursuing these proceedings and therefore sought that the proceedings be terminated .

The applicant states that the above sale contract of DATE was signed without his knowledge or consent . However , he did not dispute that he himself had hired PERSON as his legal representative .

On DATE the ORG filed a criminal complaint with ORG ( Općinsko državno odvjetništvo u PERSON ) stating that the power of attorney presented by PERSON was falsified .

On an unspecified date the applicant left GPE allegedly because he had received death threats . He moved to GPE .

Section CARDINAL of LAW ( Zakon o privremenom preuzimanju i upravljanju određenom imovinom , ORG nos . CARDINAL/CARDINAL , CARDINAL ) provides that property , situated in the previously occupied territories and belonging to persons who had left GPE , should be in the possession and under the control of the ORG .

The relevant part of LAW of the Temporary Takeover and ORG ( Zakon o prestanku važenja PERSON o privremenom preuzimanju i upravljanu određenom imovinom , Official PERSON ) provides that persons , whose property was given to others for accommodation during their absence from GPE , are to file a request for repossession of their property with the competent local authority .

The LAW on the Areas of Special State Care ( Zakon o područjima od posebne državne skrbi , ORG nos . CARDINAL , CARDINAL ( correction ) , CARDINAL/CARDINAL , CARDINAL , CARDINAL ( correction ) , CARDINAL , CARDINAL/CARDINAL , CARDINAL , CARDINAL/CARDINAL ( consolidated text ) ) , as amended by DATE LAW , provides as relevant :

Sections CARDINAL , CARDINAL and CARDINAL provide that a temporary occupant has the right to housing .

Section CARDINAL provides that the Ministry shall compensate the damage suffered by the owner who has submitted a request for repossession of his property prior to DATE but to whom the property has not been returned by DATE .


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

On DATE , when the applicant , a minor at the time , was playing in the yard near home and climbed the concrete wall surrounding ORG ( the “ School ” ; PERSON республіканська загальноосвітня школа-інтернат ) , a concrete slab from the wall , weighing QUANTITY , fell on him . The applicant survived , but became permanently and severely disabled .

According to the applicant , DATE his parents lodged numerous unsuccessful requests for investigation into the accident , however , he did not submit any relevant documents predating DATE .

On DATE the ORG refused to initiate criminal proceedings into the accident , which decision was subsequently quashed by ORG ( PERSON міський суд ) . DATE and DATE the criminal proceedings were terminated and resumed on several occasions . The last decision terminating the proceedings was given by ORG on DATE . The applicant did not challenge this decision before the domestic courts .

According to an expert assessment ordered in the course of the investigation , the wall had been designed in breach of relevant technical standards , which fact , augmented by lack of regular renovations , caused DATE of the slab . The investigation further established that the wall had been built in DATE without a planning permission or other relevant documents and that the ORG 's staff performed some ad hoc renovation works on it . However , the investigation was terminated on the ground that it was not possible to establish either the constructor or the owner of the wall , since the wall did not feature in either ORG or the city records . These records listed , instead , a non - existent fence of wood and wire - net belonging to ORG Furthermore , a criminal investigation against the constructor would have been time - barred .

NORP In DATE the applicant instituted civil proceedings in ORG against the ORG and ORG of GPE , seeking compensation for damages caused by his injury .

On DATE the ORG suspended the proceedings at the request of CARDINAL of the parties in view of the re - opening of the criminal proceedings . In DATE , after the criminal proceedings were terminated , the court resumed the hearings .

DATE the court scheduled some QUANTITY hearings , CARDINAL of them being adjourned on account of the absence of a ORG representative , and one in view of the judge 's sickness .

On DATE ORG rejected the applicant 's claims as being unsubstantiated . In particular , it confirmed that the wall surrounding the School did not belong to it and therefore the defendants bore no liability for its maintenance .

On DATE ORG of GPE ( the “ ORG ” ; PERSON суд PERSON ) quashed this judgment and remitted the case for a fresh consideration to the first instance court . The court ordered to take additional measures for establishing the parties responsible for the construction and maintenance of the wall .

DATE ORG scheduled some CARDINAL hearings , CARDINAL of them being adjourned on account of the defendant 's absence , and DATE on account of absence of an expert .

On DATE ORG rejected the applicant 's complaints , having noted that all its efforts to establish a party responsible for the construction or maintenance had been to no avail .

On DATE ORG quashed the judgment of DATE and remitted the case for a fresh consideration on essentially the same grounds as before .

DATE the court scheduled CARDINAL hearings , all adjourned on account of the defendants ' conduct ( absences and requests for adjournments ) .

On DATE ORG allowed the ORG 's request for leave to appeal in cassation out of time against the ruling of DATE , having found that the ORG had not been duly informed of this ruling .

On DATE ORG rejected the ORG 's cassation appeal .

NORP Since then the proceedings have been pending before the first instance court .


Preliminary objection rejected (non-exhaustion of domestic remedies, estoppel);Violation of Art. 5-3;Violation of Art. 5-4;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

The applicant , PERSON , is a NORP national born in DATE and residing in GPE .

The applicant used to work as a cashier and accountant in a ORG - owned enterprise .

An audit undertaken in the enterprise at DATE revealed a cash deficit of MONEY .

In DATE the applicant was given a copy of the final act of the audit , which contained the ORG opinion that , inter alia , she had made deliberately false entries in the accounting books and had thus misappropriated funds .

On DATE criminal proceedings were brought against the applicant . In DATE the investigator ( следовател ) , PERSON , questioned her in the framework of these proceedings .

On DATE the applicant was arrested and charged under Article CARDINAL § CARDINAL in conjunction with Article CARDINAL of LAW ( NORP кодекс ) with misappropriation of funds in large amounts .

On DATE investigator PERSON heard the applicant in the presence of her lawyer and decided to detain her on remand . On DATE , without having heard the applicant , a prosecutor from ORG ( PERSON прокуратура ) in GPE confirmed the investigator ’s decision to detain her .

On DATE the applicant appealed against her detention to ORG ( ORG прокуратура ) . In accordance with the established practice the applicant ’s lawyer lodged the appeal with ORG . He stated that the applicant had not attempted to abscond or to obstruct the investigation during DATE since she had become aware of the criminal charges against her ; that she was no longer working as a cashier or accountant and could not , therefore , commit other crimes ; and that the applicant had undergone gynaecological surgery and had still not recovered completely .

On DATE , before transmitting the appeal to ORG , a prosecutor of ORG confirmed the decision to detain the applicant on remand . The prosecutor found that the applicant was charged with a serious crime punishable by DATE imprisonment and that “ therefore , the [ detention on remand ] [ was ] lawful : it [ was ] based on the imperative provision of LAW процесуален кодекс ) ” ( see paragraph CARDINAL below ) . The prosecutor further stated that the question whether or not LAW should be applied was to be assessed by the investigator and by the supervising prosecutor . In the applicant ’s case the investigator and the supervising prosecutor had not applied LAW “ in view of the current stage of the proceedings ” . It followed that the applicant ’s detention was lawful .

By decision dated DATE and registered on CARDINAL DATE ORG dismissed the applicant ’s request for release . A further appeal against her detention on remand was dismissed by ORG by a letter of DATE .

On DATE the applicant appealed to ORG ( GPE съд ) against her detention on remand . In his written submissions to ORG the applicant ’s lawyer stated , inter alia , that the decision to detain the applicant on remand had been based solely on the gravity of the charges against her whereas other important factors had not been taken into account . Thus , the applicant had a permanent address where she lived with her husband and QUANTITY daughters . Also , the applicant had known about the criminal charges against her for DATE prior to her arrest but had made no attempt to abscond or obstruct the investigation . Furthermore , the evidence against the applicant was weak , it having been established that CARDINAL other persons had been in possession of a key to the cashier ’s office . The prosecutor had blindly followed the conclusions of the auditors who had pointed to the applicant on the sole ground that she had been the person in charge . However , there was nothing to show that the applicant had been the author of the false entries in the accounting books . The applicant ’s lawyer also invoked his client ’s medical condition and enclosed medical certificates .

In accordance with the established practice the applicant ’s lawyer lodged his appeal and submissions through ORG .

On DATE ORG transmitted the appeal together with the investigator ’s file to ORG . The covering letter , prepared by the prosecutor , stated , inter alia :

“ I consider that the appeal should be dismissed and that the detention on remand should be confirmed as being lawful . The charges concern a serious wilful crime within the meaning of LAW and , [ therefore ] , in accordance with LAW , the imposition of detention is obligatory .

The present case does not fall under LAW of LAW : [ it ] does not involve a situation where the accused has no possibility of absconding or reoffending , as required by ORG practice [ follows a reference to ORG practice – see paragraph CARDINAL below ] . ”

On DATE the court examined the case in camera , without the participation of the parties , and dismissed the appeal . The court stated , inter alia :

“ [ The charges against the applicant ] concern a serious crime within the meaning of LAW , that is , a crime under LAW , punishable by DATE imprisonment . In this respect there exists the requirement , under LAW , that detention on remand shall be imposed .

... [ The medical certificates submitted by the applicant ] reflect her state of health during DATE . No information concerning her current state of health has been submitted . It follows that currently there exist no circumstances requiring the modification of the measure ‘ detention on remand’ imposed on the [ applicant ] . Therefore the appeal is ill - founded and must be dismissed . ”

On DATE the applicant was examined by CARDINAL medical experts who had been asked by the investigator in her case to establish , inter alia , whether the conditions of detention were dangerous for her health . In a report of DATE the experts found that the problems related to the surgery which she had undergone DATE did not affect her condition , and that she could remain in detention .

On DATE the applicant was urgently transferred to hospital due to pain in her gall bladder . On DATE she underwent surgery .

On DATE the investigator in the applicant ’s case appointed another group of medical experts to examine the applicant . The experts found that the applicant needed a convalescence period which was incompatible with the conditions in detention .

On DATE the applicant ’s detention on remand was discontinued in view of her health problems by an order of ORG . The applicant was put under house arrest .

NORP In DATE the investigator concluded his work on the case and sent the file to ORG with a proposal to submit an indictment in court . On an unspecified date the competent prosecutor returned the case to the investigator for further clarifications .

According to the relevant provisions of LAW and to legal theory and practice , the prosecutor performs a dual function in criminal proceedings .

During the preliminary stage he supervises the investigation . He is competent , inter alia , to give mandatory instructions to the investigator ; to participate in examinations , searches or any other acts of investigation ; to withdraw a case from CARDINAL investigator and assign it to another , or to carry out the entire investigation , or parts of it , himself . He may also decide whether or not to terminate the proceedings , order additional investigations , or prepare an indictment and submit the case to court .

At the judicial stage he is entrusted with the task of prosecuting the accused .

The investigator has a certain independence from the prosecutor in respect of his working methods and particular acts of investigation , but performs his functions under the latter ’s instructions and supervision ( Articles CARDINAL § CARDINAL and CARDINAL of LAW ) . If an investigator objects to the prosecutor ’s instructions , he may apply to the higher prosecutor , whose decision is final and binding .

Under Article CARDINAL of the Code of Criminal Procedure , the prosecutor and the investigator are under an obligation to collect both incriminating and exonerating evidence . Throughout criminal proceedings , the prosecutor must “ effect a supervisory control of lawfulness ” ( Article CARDINAL of the Code ) .

An accused can be detained on remand by decision of an investigator or prosecutor . In cases where the decision to detain has been taken by an investigator without the prior consent of a prosecutor , it must be approved by a prosecutor within TIME . The prosecutor usually makes this decision on the basis of the file , without hearing the accused ( Code of Criminal Procedure , Articles CARDINAL , CARDINAL , CARDINAL - CARDINAL and CARDINAL - CARDINAL ) .

There is no legal obstacle preventing the prosecutor who has taken the decision to detain an accused on remand , or who has approved an investigator ’s decision , from acting for the prosecution against the accused in any subsequent criminal proceedings . In practice this frequently occurs .

ORG has found that a former investigator who was appointed prosecutor may represent the prosecution at the trial of the same accused person on whose case he had been working as an investigator . As both the investigator and the prosecutor performed investigative functions there was no legal obstacle ( реш. от CARDINAL.CARDINAL.CARDINAL по н.д. No . CARDINAL/CARDINAL на ВС NORP н.о. , бюл. кн. QUANTITY , стр. CARDINAL ) .

Article QUANTITY and QUANTITY provides as follows :

“ ( CARDINAL ) Detention on remand shall be imposed [ in cases where the charges concern ] a serious wilful crime .

( CARDINAL ) In the cases under the preceding paragraph [ detention on remand ] may not be imposed if there is no danger of the accused absconding , obstructing justice or reoffending . ”

“ ( CARDINAL ) Мярка за неотклонение задържане под стража се взема за тежко умишлено престъпление.

( CARDINAL ) PERSON случаите по ал. CARDINAL мярката за неотклонение може да не се вземе , ако няма опасност обвиняемият да се укрие , да осуети разкриването на обективната истина или да извърши друго престъпление. ”

According to LAW a crime is “ serious ” if it is punishable by more than DATE imprisonment .

According to ORG practice LAW requires that a person charged with a “ serious wilful crime ” shall be detained on remand . The only exception is provided for under LAW , which empowers the prosecutor not to detain an accused where it is clear , beyond doubt , that there is no danger of absconding or reoffending . Such danger must be objectively excluded as , for example , in the case of an accused who is seriously ill , or aged , or who is detained on other grounds such as serving a sentence ( опред. No . CARDINAL от CARDINAL по CARDINAL на ВС II н.о. , GPE DATE , стр. CARDINAL ; опред. No . CARDINAL от CARDINAL по ORG CARDINAL/CARDINAL на ВС II н.о. ; опред. No . CARDINAL от CARDINAL по н.д. CARDINAL/CARDINAL на ВС TIME ; опред. No . CARDINAL по ORG CARDINAL/CARDINAL ORG , I н.о. , GPE DATE , стр. CARDINAL ) .

In some more recent decisions ORG has nevertheless embarked on analysis of the particular facts to justify findings that there existed a danger of absconding or reoffending ( опред. No . DATE от CARDINAL по н.д. No . CARDINAL/CARDINAL на ВС II н.о. , бюл. TIME , стр. CARDINAL ; опред. No . CARDINAL от CARDINAL по ORG CARDINAL/CARDINAL на ВС II н.о. , бюл. кн. CARDINAL - CARDINAL/CARDINAL , стр. CARDINAL ) .

LAW , as in force at the relevant time , provided as follows :

“ The detained person shall be provided immediately with a possibility of filing an appeal before the competent court against the [ imposition of detention ] . The court shall rule within a time - limit of DATE from the filing of the appeal by means of a final decision . ”

“ GPE задържания се осигурява незабавно възможност да обжалва мярката за неотклонение пред съответния съд. Съдът се произнася в тридневен срок от подаването на жалбата с определение , което е окончателно. ”

ORG of ORG has held that , in deciding on appeals against detention on remand , it is not open to the court to inquire whether there exists sufficient evidence supporting the charges against the detainee , but only to examine the lawfulness of the detention order ( опред. No . CARDINAL от CARDINAL по ORG CARDINAL/CARDINAL , I н.о. на ВС , GPE DATE , стр. CARDINAL ) .

According to the practice at the relevant time , the court examined appeals against detention on remand in camera , without the participation of the parties . If the appeal was dismissed , the court did not notify the detained person of the decision taken . An amendment of LAW of DATE introduced the requirement that appeals against detention on remand be examined at a hearing with the participation of the detainee .

In a decision of CARDINAL DATE ORG of ORG found that the imposition of detention on remand could be contested before a court only once ( опред. No . CARDINAL по GPE CARDINAL/CARDINAL , I н.о. на ВС , Сб. DATE , стр. CARDINAL ) . Until the amendment of LAW in DATE periodic judicial review of the lawfulness of detention on remand was only possible at the trial stage , when the criminal case was pending before a court .


Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in Velenje .

On DATE the applicant was injured in a car accident . The perpetrator of the accident had taken out insurance with the insurance company ORG .

On DATE the applicant instituted civil proceedings against ORG in ORG ( Okrožno sodišče v PERSON ) seeking damages in the amount of CARDINAL tolars ( MONEY ) for the injuries sustained .

DATE and DATE the applicant lodged CARDINAL preliminary written submissions and/or adduced evidence .

DATE and DATE she made CARDINAL requests that a date be set for a hearing .

Of the CARDINAL hearings held DATE and DATE none was adjourned at the request of the applicant .

During the proceedings the court appointed a medical expert and a road traffic expert . The court also sought an additional opinion from the appointed medical expert .

At the last hearing the court decided to issue a written judgment . The judgment has not yet been served on the applicants .