Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award

Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE and lives in the village of GPE , GPE .

On DATE the applicant 's son , PERSON , who was born in DATE , was fishing in LOC with a teenager , NORP According to NORP 's testimony in the subsequent proceedings , the water started to “ bite ” their feet when they reached LOC . They saw a wire hanging from a wooden support pole for power lines , dangling in the water . PERSON , saying that the wire was not dangerous and should be removed , stepped into the water and tried to pull the wire from the river . When he grasped the wire he cried out , fell into the water and died . NORP tried to pull the wire out of Mr PERSON 's hands . Unable to do so , he ran to the village for help .

Mr Z. , an engineer with ORG ( hereinafter “ the Network ” ) – forming a part of the public company , GPE , owned by ORG – carried out an initial , immediate investigation into the accident . In his report of DATE , Mr PERSON concluded that the applicant 's son had died as a result of electrocution . This occurred because a live wire , which had been incorrectly fixed to a wooden support pole , had come loose during strong winds . He further concluded that the security trip switch had failed on account of an ineffective earth connection .

A further internal inquiry was subsequently carried out by a commission composed of CARDINAL Network officials ( hereinafter “ the commission ” ) . Its report , drawn up on DATE , states that the ORG owned CARDINAL wooden poles on opposite banks of ORG , supporting a power line strung across the river . In addition to that power line , those CARDINAL poles also supported a bare radio wire that had been attached to the poles – above the power line – by the local telecommunications service of ORG . Owing to stormy weather conditions , the hook with which the radio wire had been attached had come loose , the wire had snapped and CARDINAL end had fallen into the river . The commission found that , although in principle it was not unlawful to attach a power line and a radio wire to a single pole , the local telecommunications service had failed to obtain the relevant consent from the Network .

On DATE the applicant asked ORG ( hereafter “ the ORG ” ) to conduct an inquiry into the circumstances of her son 's death , claiming that his death had been caused by negligence and carelessness on the part of the Network in that it had failed to repair a broken power line , whereas the Ayvove villagers had already reported a power failure DATE .

The autopsy report , issued on DATE by an expert with the local ORG at the request of ORG , stated that PERSON had suffered a sudden death as a result of an electric shock .

On DATE ORG asked the Network to make available documents relating to the accident , including the records of previous inspections and repairs of the power line . In its reply of DATE the ORG stated , inter alia , that it had not given its consent to the radio wire being attached to the pole , and that the manner in which it had been done contravened technical safety rules . It further stated that it had notified the telecommunications service several times of the potential danger of the installation and had unsuccessfully sought to have it comply with the relevant safety regulations .

On DATE the Prosecutor 's Office informed the applicant that there was no reason for the ORG to take any criminal proceedings against the ORG 's management . None of the Ayvove villagers had called the ORG DATE to report a power supply failure , and the required DATE inspections and general revision of the power supply network had been conducted regularly and timely by the ORG . The last DATE inspection had taken place on DATE and the last general overhaul in DATE which was within DATE interval . Also taking into account the findings of the internal inquiry carried out by the ORG 's commission and statements given by various Ayvove villagers DATE according to whom the QUANTITY radio wire had come loose on DATE – the Prosecutor found no wrongdoing on the part of the ORG 's staff .

On DATE the applicant asked ORG to conduct an additional criminal investigation into the death of her son and to take criminal proceedings in accordance with LAW .

In a decision of DATE , the investigator from ORG decided against taking criminal proceedings against the ORG 's staff as there was no evidence of a criminal offence . That decision was based on statements taken by the investigator from the applicant , her son 's widow , her son 's friend NORP , QUANTITY Ayvove villagers and PERSON , a nurse who had been called for help on DATE . The CARDINAL villagers had stated that , although PERSON had experienced certain power supply problems as early as DATE , it was only on DATE that the radio wire had come loose from the pole , and that nobody had informed the Network about this . The investigator further noted that the applicant 's claim that her son had died as a result of negligence and carelessness on the part of the Network in that it had failed to repair a power line broken on DATE was not supported by the findings made by the ORG 's commission .

The applicant filed a complaint against that decision with ORG of GPE ( hereafter “ the POARC ” ) as well as an appeal with ORG ( hereafter “ the ORG ” ) .

On DATE , the POARC quashed the decision of DATE , finding that further inquiries were called for . It instructed the investigator to question officials of ORG , to question again the villagers as to when the radio wire had come loose and whether someone had informed the ORG about this , and to attach a copy of the onsite inspection of the scene of the accident and the report on the forensic post - mortem examination of the body of the applicant 's son . In view of that decision , ORG did not deal with the applicant 's appeal against the decision of DATE .

On DATE the investigator of ORG , after having heard an ORG employee – according to whom the radio wire had been attached to the pole in conformity with the relevant technical requirements DATE and after having heard the applicant , her son 's friend NORP , the CARDINAL Ayvove villagers already heard previously , and the nurse , PERSON , who gave the same testimonies as before , decided against taking any criminal proceedings because there was no evidence of a criminal offence .

On DATE , acting on an appeal filed by the applicant , ORG quashed the decision of DATE . It found that the inquiry carried out by ORG was incomplete , in that the case file contained no record of an on - site inspection of the scene of the accident and no report on post - mortem examinations of the body of the applicant 's son , and in that the investigation had failed to establish the reason why a dangerous live wire had been hanging in the river and who bore responsibility for this .

On DATE , after having added to the case file the report on the post - mortem examination of PERSON body and an undated statement taken from the local electrician , ORG took a fresh decision not to initiate any criminal proceedings , which was based on essentially the same grounds as the decision of DATE . According to the statement given by the electrician , he had received no complaints or information about a wire hanging in the river . He did know that wires had come loose from their support , but did not know who was responsible for it .

On DATE , acting on a complaint filed by the applicant , the POARC quashed the decision of CARDINAL DATE and remitted the case to ORG for further inquires in that , inter alia , the case file did not contain an internal investigation report from the company responsible for electricity network maintenance , and the investigation had not made any findings about who was responsible for the network 's maintenance .

In the course of the subsequent additional criminal investigation , the investigator of ORG examined the internal regulations governing the duties and responsibilities of the ORG 's staff , and identified and questioned CARDINAL officials responsible for the maintenance of power lines , as well as CARDINAL Network employees who had repaired the power supply network after Mr PERSON 's death . It further examined information about the meteorological conditions at the material time and concluded that the power cut had been caused by adverse weather conditions . On DATE , having found no evidence of negligence or involuntary manslaughter , ORG decided not to bring any charges against the ORG staff responsible for electricity network maintenance . According to ORG , the wire network in the Ayvove village had been maintained in accordance with the relevant technical rules and regulations .

On DATE , acting on a complaint filed by the applicant , the POARC quashed the decision of DATE and remitted the case once more for additional investigations . It found that the investigator had failed to question a number of Network employees and that , despite repeated instruction , no on - site inspection report had been drawn up .

Accordingly , ORG conducted an on - site inspection at the scene of the incident . According to the inspection report , an unprotected radio wire , strung across ORG , had been attached to a wooden support pole . That pole also had an electricity power line attached to it . ORG concluded that such an installation was permissible under the relevant technical regulations . It further found that a storm had caused the radio wire to come loose and fall into the river .

On DATE ORG concluded that Mr PERSON 's death had been the result of a tragic accident and decided not to institute any criminal proceedings . The applicant again filed a complaint against that decision . On DATE the POARC accepted the applicant 's complaint , quashed the decision of CARDINAL DATE and ordered further inquiries to be made , including a forensic technical examination of the cause of the accident .

On DATE the Prosecutor 's Office again decided against bringing any charges , having found no evidence that any criminal offence had been committed by officials of the Network . The applicant challenged the decision of DATE before the POARC . On DATE the POARC quashed the decision of ORG of DATE , finding that the criminal inquiry conducted had not been sufficiently thorough . It noted that , in the internal investigation into the incident carried out by the ORG 's commission in DATE , it had been found that the radio wire had been attached to the poles in a manner contrary to relevant technical regulations , whereas ORG had found that the relevant rules and regulations had been respected . The POARC further found it unacceptable that no documentary evidence had been obtained from the Network concerning inspections of the LOC village electricity supply network prior to the accident , and that the identity of the persons who were responsible for the maintenance of the Network wires had not been established .

In its subsequent decision of DATE the ORG maintained its conclusion that there were no reasons for taking any criminal proceedings . As to the installation of wires and poles , the investigation found that they had originally been installed in DATE and the relevant installation company no longer existed . It further stated that the forensic technical examination could be conducted by ORG ( Харківський науково-дослідний інститут судових експертиз ) , however , such examination would require pre - payment of fees and ORG did not have funds available to cover those costs . The applicant was offered an opportunity to meet those costs .

On DATE ORG quashed the decision of DATE and ordered further investigation on the ground that technical expertise was required to establish whether there had been irregularities in the installation and use of wires that could have a causal link with the electrocution and death of the applicant 's son .

On DATE ORG sent the case file material to ORG , but the examination was not conducted owing to non - payment of fees .

On DATE ORG refused to institute criminal proceedings on the same grounds as in its decision of DATE . ORG noted that it had no available funds to pay for the forensic examination and the interested parties were not willing to meet the costs either .

On DATE the POARC quashed the decision of DATE and remitted the case for additional investigation .

On DATE ORG refused to institute criminal proceedings on the same grounds as in its decisions of DATE and DATE .

On DATE ORG refused to institute criminal proceedings against the ORG officials under LAW . ORG repeatedly noted that they had no funds available for forensic examination and the interested party refused to pay for it .

On DATE the applicant complained about that decision to the POARC . She did not , however , provide information about any decision taken regarding her complaint .

On DATE the applicant instituted civil proceedings before ORG against GPE , the public company of which the ORG formed a part . In those proceedings , the applicant claimed compensation for non - pecuniary damage caused by the death of her son .

On DATE ORG , for reasons of territorial jurisdiction , remitted the case to ORG of GPE . On DATE , acting at the applicant 's request , ORG of GPE ( ORG ) ruled that ORG had jurisdiction over the case .

On DATE ORG assumed jurisdiction over the case and scheduled a first hearing for DATE . On DATE , it granted the applicant 's request to stay those proceedings pending the criminal investigation into the death of her son . It did not fix any date for a future hearing .

On DATE , ORG granted another request to stay the proceedings filed by the applicant , who had expected to receive further information from ORG .

On DATE , ORG considered the proceedings and asked ORG for information about the state of proceedings in the criminal investigation . On DATE , after having received a copy of the decision taken by ORG on DATE , ORG resumed its examination of the applicant 's case .

On DATE ORG found against the applicant .

On DATE ORG overruled the decision of the first - instance court , having held that under the law the owner of a source of the increased hazard could be exempted from liability in CARDINAL conditions : force majeure or the intentional actions of the victim . Neither of the CARDINAL had been established in the case . The court also noted that the prosecutor had refused to institute criminal proceedings owing to a lack of proof of a crime and not because there had been any doubt that the event had taken place . Therefore , the Network , regardless of guilt , bore liability and had to provide compensation for the death of the applicant 's son . Therefore , it awarded CARDINAL NORP hryvnias ( ORG ) to the applicant , UAH CARDINAL,CARDINAL to her daughter - in - law and LAW to her granddaughter .

On DATE ORG upheld the decision of the court of appeal .

Article CARDINAL of the Criminal Code provides :

“ Neglect of official duty , that is , failure to perform , or improper performance , by an official of his or her official duties due to negligence , where it causes any significant damage to the legally protected rights and interests of individual citizens , ORG and public interests or those of legal entities , shall be punishable by a sentence of DATE imprisonment ... ”

Article CARDINAL of LAW , as in force until DATE , provided as follows :

“ Organisations and persons , whose activities give rise to an increased hazard to their environment ( transport organisations , industrial enterprises , buildings , car owners etc . ) shall be obliged to compensate the damage caused by the source of that increased hazard unless they can prove that the damage has resulted from force majeure or from intentional actions on the part of the victim . ”

The relevant provisions of LAW , as in force since DATE ) , read :

Article CARDINAL . Compensation of damage caused by a source of increased danger

... CARDINAL . A [ natural or legal ] person involved in an activity constituting a source of increased hazard shall be responsible for the damage caused [ by that activity ] unless [ he , she or it ] can prove that the damage has resulted from force majeure or from intentional actions on the part of the victim ”

Article CARDINAL of the Code of Civil Procedure provides :

“ The court shall suspend its examination of a case if ... it can not be examined prior to the outcome of another case pending in civil , criminal or administrative proceedings . ”


Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Disciplinary proceedings;Article 6-1 - Impartial tribunal);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

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

The applicant was born in DATE and lives in GPE .

The applicant is a ORG judge . He was the president of ORG DATE . DATE and DATE he was the Minister of ORG . Since DATE he has again been the President of ORG .

ORG of GPE has been entered in the official register of ORG as a budgetary organisation , its activity being justice and the judiciary . For the purpose of national accountkeeping it has been classified in ORG as falling within the sector of central public administration . Its budget forms a separate chapter of the ORG budget in accordance with section CARDINAL(CARDINAL)(f ) of PERSON no . CARDINAL on Budgetary Rules in Public Administration ( “ ORG DATE ” ) .

Following the entry into force of LAW DATE ( for further details see below ) , ORG carried out financial controls of ORG in DATE and DATE .

DATE and DATE ORG carried out a governmental audit at ORG , focused on the use of public funds and efficiency of financial management during DATE , and on the manner in which the shortcomings identified during the previous financial control had been eliminated . On DATE the preliminary report was submitted to ORG , then headed by its ORG . Subsequently , in DATE and DATE and DATE the Director of ORG submitted to ORG documents indicating what measures had been taken aimed at elimination of the shortcomings found , and how those measures had been implemented . The documents were signed by the applicant as President of ORG .

On DATE the Minister of Finance instructed a group of auditors to carry out an audit at ORG pursuant to section CARDINALa(CARDINAL ) of LAW DATE . Its aim was to examine the use of public funds , efficiency of financial management , use of ORG property and to check on compliance with measures which had been indicated in the course of the preceding audit of DATE .

NORP The applicant in his capacity as President of ORG did not allow the ORG ’s auditors to carry out the audit on DATE , or on CARDINAL , DATE and CARDINAL DATE .

On DATE the applicant asked the President of ORG ( GPE kontrolný úrad ) to carry out a check on how public funds were administered and used by ORG . He referred to the above instruction of ORG and to ORG judgment PL . CARDINAL . The reply he received , dated DATE , stated that the LAW guaranteed the independence of ORG , and that it had no spare capacity for additional supervisory activities in DATE .

By letters dated CARDINAL and DATE the applicant informed the Minister of Finance that ORG auditors lacked the power to carry out the audit . The applicant argued that it was ORG which had the authority to supervise the administration of public funds by ORG .

On DATE ORG issued a decision fining the applicant MONEY ( ORG ) , on the ground that by refusing the audit he had failed to comply with his obligations under LAW DATE . The applicant lodged an objection . On DATE the Minister of Finance decided to discontinue the proceedings , on the ground that his ministry lacked the power to sanction the applicant as a judge .

In parallel , by a decision issued on DATE , ORG fined ORG for failure to comply with its obligations under LAW DATE . On DATE the Minister of Finance dismissed the objection to the decision on the fine lodged by ORG .

On DATE ORG quashed the above CARDINAL decisions and returned the case to ORG . It held that ORG was the highest body within the ordinary judiciary , and that it did not engage in public administration . The relevant provisions of LAW CARDINAL did not extend to it . Public funds administered by ORG formed a part of the budget approved by ORG . Monitoring of the use of those funds lay therefore with ORG . On DATE ORG upheld the first - instance judgment .

In DATE and DATE ORG did not allow ORG to carry out an audit . Reference was made to the aforesaid judgments of the ordinary courts . On DATE ORG fined ORG on that account . Reference was made , inter alia , to ORG decision ORG . ÚS CARDINAL/CARDINAL of DATE ( for further details see below ) .

On DATE , following a parliamentary election , the newly appointed Minister of Finance , upon the advice of a special commission , allowed ORG objection and quashed the fine of CARDINAL DATE . The Minister ’s decision referred to the judgments of ORG and ORG , which were considered binding . The ORG proceedings , filed as ORG . ÚS CARDINAL/CARDINAL , concerned a different issue , namely establishing whether the President of ORG had committed a disciplinary offence . ORG decision in those proceedings had no legal effect on the judgments of ORG or ORG .

From DATE to CARDINAL DATE ORG carried out an audit at ORG , focused on financial management under the corresponding chapter of the ORG budget and the closing accounts for DATE .

On DATE the Minister of Justice initiated disciplinary proceedings against the applicant before ORG . She did so upon a submission by ORG and also following a notification by a police investigator who had dismissed the latter ’s criminal complaint against the applicant , while holding that the applicant ’s conduct might be qualified as a disciplinary offence .

The submission indicated that the applicant had CARDINAL times prevented a group of auditors from ORG from carrying out an audit at ORG in DATE and DATE . The audit had been focused on use of public funds and other ORG property , efficiency of financial management , and elimination of the shortcomings which had been identified in the previous audit by ORG auditors in DATE . It was proposed that the applicant should be sanctioned by a reduction of his yearly salary by PERCENT , as by preventing the audit from taking place he had committed a serious disciplinary offence .

On DATE the applicant submitted arguments in writing . He maintained that he had acted in conformity with the law and the LAW , as the relevant law could not be interpreted as allowing ORG to carry out an audit of ORG . The applicant submitted detailed arguments in support of that view . In particular , he submitted that ORG functioned on the basis of a budget approved by the ORG . Responsibility for audit of the use of those funds lay with ORG . Governmental audit and other measures had no legal basis and were contrary to the principle of independence of the judiciary . ORG was neither a public administration body nor a central authority within the meaning of the relevant provisions of LAW DATE . The applicant also relied on ORG on ORG and on ORG decision PL . ÚS CARDINAL of DATE .

NORP The differing views as to which body was entitled to carry out the audit at ORG concerned interpretation of the relevant law . The applicant expressed the view that ORG and ORG had attempted to cast doubt on the management of public funds which had been allocated to ORG in a separate chapter of the ORG budget , with a view to undermining the economic independence of that court . The disciplinary proceedings initiated against the applicant pursued the aim of sanctioning him for his opinions on the law .

On DATE the Minister of ORG challenged CARDINAL constitutional judges for bias , on the ground that they had had a personal relationship with the applicant for DATE and that they had been nominated to posts in the judiciary and public administration by the same political party . She pointed out that there had been earlier decisions in which CARDINAL of those judges had been excluded for similar reasons .

On DATE the applicant challenged CARDINAL different constitutional judges for bias . In particular , he argued that Judge PERSON had made negative statements about the applicant ’s professional skills in the context of the election of the President of ORG . The applicant noted that there had been statements in decision II . ÚS CARDINAL/CARDINAL of DATE . That decision had been given by a chamber of ORG which included Judge PERSON

As regards Judge PERSON , the applicant submitted that he had made several negative statements in the media about the applicant . Thus in DATE that judge had stated , at the time as chairman of a parliamentary committee , that the way the applicant had acted as President of ORG was such that the interest of the judiciary would be best served by replacing him . In a different statement Mr O. had indicated that the applicant could be removed under the law in force and in compliance with LAW . In different proceedings involving the applicant a chamber of ORG had excluded Judge PERSON ( decision ORG of DATE ) .

The applicant further objected that Judge PERSON was a member of the same chamber to which Judges PERSON and NORP belonged . Their relations were not neutral .

Finally , Judge PERSON had been convicted of a criminal offence , that of failure to pay tax , and had ignored the document of DATE in which ORG ( in plenary session ) had invited him to consider his position as a constitutional judge . The applicant had criticised Judge PERSON on several occasions earlier on that ground . He therefore feared that that judge would lack impartiality in his respect .

In reply to the applicant ’s objection all the judges stated that they did not consider themselves biased . Judge PERSON indicated that the decision on which the applicant relied contained no statements about his professional skills and that she had never made any such statements personally . Judge PERSON stated that his involvement in different proceedings concerning the applicant was not a relevant reason for his exclusion . Judge PERSON considered irrelevant the applicant ’s argument based on the fact that he belonged to the same chamber as Judges PERSON and O. Judge PERSON rejected the applicant ’s objection concerning his standing to act as a constitutional judge as unsubstantiated . He acknowledged that the applicant enjoyed freedom of expression , which included the freedom to make critical remarks about constitutional judges . Such criticism did not affect the ability of Judge PERSON to carry out his duties in an impartial manner .

On CARDINAL DATE ORG found that the CARDINAL judges challenged by the parties were not excluded from dealing with the case . The fact that CARDINAL of those judges ( including Judges O. and H. ) had earlier been excluded from other sets of proceedings involving the applicant could not affect the position . ORG had found in particular that the determination of the disciplinary offence allegedly committed by the applicant was within the exclusive jurisdiction of its plenary session . Excessive formalism and overlooking the statements of the individual judges posed the risk that the proceedings would be rendered ineffective . Examination of the case by a plenary session of ORG represented a guarantee that constitutional principles , including independence , would be respected . Furthermore , all the constitutional judges had pledged to decide cases independently and impartially , to the best of their abilities and conscience .

On CARDINAL DATE ORG declared ORG representation admissible .

On DATE the applicant again challenged the constitutional judge , PERSON argued that ORG had excluded that judge in different proceedings , in which the applicant had been involved as President of ORG ( III . ÚS CARDINAL/CARDINAL ) .

The applicant further challenged the Minister ’s standing to initiate disciplinary proceedings against him . He relied on ORG judgment of DATE and ORG judgment of DATE ( see paragraph CARDINAL above ) , and argued that he had not acted in a manner contrary to the law .

On DATE the Constitutional Court heard the parties and CARDINAL witnesses .

On DATE ORG ( plenary session in which all CARDINAL judges took part ) found the applicant guilty of a serious disciplinary offence ( závažné disciplinárne previnenie ) under section QUANTITY ) of ORG . In particular , the applicant had failed to comply duly , conscientiously and in timely fashion with his obligations relating to court administration as laid down in section CARDINAL(CARDINAL)(a ) of LAW and section CARDINAL(CARDINAL)(a ) in conjunction with section CARDINALd(CARDINAL ) of LAW DATE , in that he had CARDINAL times prevented a group of auditors of ORG from carrying out an audit at ORG in DATE and DATE .

ORG imposed a disciplinary sanction on the applicant under section PERSON ) of ORG , which consisted of a PERCENT reduction of his annual salary .

The applicant indicated that that sanction corresponded to ORG CARDINAL,CARDINAL.CARDINAL .

In the reasons for its decision ORG referred to its decision GPE . ÚS CARDINAL of QUANTITY DATE and examined the case from the point of view of the principles of independence of the judiciary , independence of judges , and separation of powers .

It held that any external audit in respect of the judicial branch of power had to be limited . Any such audit must have an unequivocal legal basis and a clearly defined scope . Those criteria had been met in the case under consideration .

NORP In particular , ORG referred to sections CARDINAL ) and CARDINAL ) of LAW DATE , and noted that ORG had entered ORG in the register of public administration bodies . That register had been established in accordance with rules applicable within ORG pursuant to ORG ( ORG ) No . CARDINAL . As an organisation using public funds ORG was therefore to be considered a public administration body within the meaning of section CARDINAL(CARDINAL)(c ) of LAW DATE . At the same time , it was a central authority within the meaning of section CARDINAL ) of LAW DATE , as it administered part of the ORG budget .

These matters did not affect the position of ORG as the highest judicial authority within the system of ordinary courts . ORG independence in that respect was ensured by constitutional and other legal rules , irrespective of how it was financed . The way ORG was financed and subsequent monitoring of how it used public funds did not therefore affect its independence as a judicial authority .

NORP The position of ORG as regards its administration and functioning was similar to that of other legal persons using public funds . The audit which ORG had intended to carry out did not therefore threaten the judicial independence of ORG , as it exclusively related to the way public monies had been spent and how ORG property was administered , including audit of the elimination of the shortcomings which had been identified in the course of the previous audit , in DATE .

The Constitutional Court considered it irrelevant that the ordinary courts were of a different legal opinion as to the power of ORG to carry out an audit , and that they had quashed the decision by which ORG had imposed a fine on ORG .

In accordance with section PERSON ) of LAW DATE , the decision was taken by a secret vote . It indicated that for that reason judges’ separate opinions would not be attached to it .

In respect of the above proceedings the applicant further submitted that CARDINAL of the constitutional judges who had found him guilty of a serious disciplinary offence , PERSON , lacked impartiality . That judge had been an unsuccessful candidate in the election in which the applicant had been elected President of ORG . PERSON had subsequently challenged that election before ORG . The applicant had not challenged Judge PERSON , as he had expected that the latter would withdraw , as he had in several other constitutional proceedings to which the applicant was or had been a party .

In DATE , following a submission by CARDINAL former employees of ORG , the applicant , in his capacity as Minister of ORG , ordered ORG to conduct a check of how ORG was complying with the legislation and regulations governing civil servants . The applicant initiated disciplinary proceedings against the then President of ORG , who had refused to allow the check to be conducted . ORG discharged the President of ORG in proceedings filed as PL ÚS CARDINAL/CARDINAL ( see paragraphs CARDINAL - CARDINAL below ) .

In addition to the above submission of CARDINAL DATE the then Minister of ORG made CARDINAL other representations in which she asked ORG to find the applicant guilty of serious disciplinary offences .

In the representation dated DATE it was imputed to the applicant that he had failed to ensure the allocation of cases to judges within ORG by means of random assignment . On CARDINAL DATE ORG declared the representation admissible ( proceedings ORG . ÚS PERSON ) . It dismissed the Minister ’s and the applicant ’s requests for exclusion of constitutional judges on the basis of the same facts as in the disciplinary proceedings relating to the present case . The proceedings were stayed on DATE pending the outcome of the proceedings before ORG on the present application .

In her representation of CARDINAL DATE the Minister of ORG imputed serious disciplinary offences to the applicant on CARDINAL counts . They related to allocation of cases to judges . The Minister relied , inter alia , on ORG finding of DATE , concluding that a party ’s right to a hearing by a tribunal established by law had been breached as a result of a change in ORG judges .

In the context of the proceedings on that representation ( ORG . ORG ) the Minister of ORG challenged CARDINAL judges for bias . The applicant raised a similar objection in respect of CARDINAL different judges . On DATE the Constitutional Court excluded CARDINAL of the judges challenged by the Minister of ORG and one of the judges challenged by the applicant ( Judge PERSON ) . Those judges had been excluded earlier , in different sets of proceedings , because of their relationship with the applicant or their attitude towards him . It further dismissed the applicant ’s request for exclusion of Judges PERSON and ORG , as no majority had been reached in the vote . Finally , it held that the other CARDINAL judges challenged by the parties had not been shown to lack impartiality . The decision indicated that several constitutional judges had criticised the decision taken in proceedings file no . GPE . ÚS CARDINAL/CARDINAL not to exclude any of the judges challenged by the parties . The view was expressed that although the CARDINAL judges who had been found to lack impartiality in earlier sets of proceedings due to their relation to or attitude towards the applicant were excluded from the proceedings filed as ORG . ÚS CARDINAL/CARDINAL , the plenary session of ORG would still have enough judges to decide on the Minister ’s representation of CARDINAL DATE . CARDINAL judges joined dissenting opinions to that decision . On DATE ORG decided that it was not appropriate to stay the proceedings filed as ORG . ÚS CARDINAL/CARDINAL .

On DATE the Minister of ORG initiated a new set of disciplinary proceedings , on the ground that the applicant had failed to lodge an appeal in the civil proceedings in which the first - instance court had ordered ORG , as the authority representing the ORG who was the defendant , to pay compensation for non - pecuniary damage to the plaintiffs , amounting to MONEY ( proceedings filed as ORG . ÚS CARDINAL/CARDINAL ) . On DATE ORG , in a similar decision to that of DATE in proceedings filed as ORG . ÚS GPE , excluded Judge PERSON and CARDINAL other judges , dismissed the applicant ’s request for exclusion of Judges PERSON and NORP , and held that the CARDINAL other judges challenged did not lack impartiality . On DATE the ORG admitted the Minister ’s representation and dismissed the applicant ’s request for the proceedings to be stayed .

The applicant further submitted a compilation of media articles and transcripts of broadcasts covering the period from DATE to DATE . It is CARDINAL pages long and relates mainly to the differences of opinion as to what authority should carry out the audit of ORG and the ensuing disciplinary proceedings against the applicant , including statements by ORG and the Minister of Justice .

NORP In particular , the applicant indicates a press conference on DATE at which the Minister of ORG stated that she had initiated disciplinary proceedings , as she considered that by not allowing the auditors to carry out their task the applicant had acted contrary to the law . The Minister was persuaded that such an audit would not in any way undermine ORG independence . The audit concerned exclusively the use of public funds , and the applicant ’s position cast serious doubt on the trustworthiness and functioning of the judiciary as a whole . The Minister of ORG stated that she had made the representation on the initiative of the Minister of Finance and also on the basis of information she had obtained from the files of ORG . CARDINAL articles published on DATE quoted the statement “ I consider that [ the applicant ] has committed a serious disciplinary offence ” which the Minister of ORG had made when commenting on the representation she had made relating to the applicant ’s failure to appeal against a first - instance judgment .

Pursuant to LAW , ORG is an independent judicial authority authorised to protect compliance with LAW . It comprises CARDINAL judges ( Article CARDINAL ) . No remedy lies against its decisions ( Article CARDINAL ) .

Article CARDINAL § CARDINAL entitles ORG to carry out disciplinary proceedings against the President and Vice - President of ORG and ORG . Article CARDINAL § CARDINAL lists such proceedings among those where ORG decides at a plenary session .

Pursuant to LAW § CARDINAL , the President of ORG presides over ORG of GPE .

Pursuant to LAW , the President and Vice - President of ORG are appointed by the President of GPE from among the ORG judges proposed by ORG .

Under LAW the President of GPE has to remove a judge upon ORG proposal , inter alia , on the basis of a decision by a disciplinary chamber that the judge has acted in a manner incompatible with the exercise of judicial function .

Article QUANTITY and CARDINAL provide for the possibility of punishing a criminal offender by a pecuniary penalty . Its amount may vary from ORG CARDINAL to ORG CARDINAL,CARDINAL .

Article CARDINAL ) and ( CARDINAL ) provides for allowing proceedings leading to a final judgement or penal order to be reopened when the existence of new facts is established . A finding by the ORG concluding that the fundamental rights of an accused have been breached by a decision of a court or public prosecutor or in proceedings preceding such a decision is to be considered as a new fact within the above meaning , provided that its negative consequences can not be redressed by other means .

Section CARDINAL(CARDINAL ) provides that ORG has the power to proceed and take decisions at a plenary session subject to the participation of CARDINAL judges .

Pursuant to section DATE ) , at plenary sessions ORG takes decisions by a majority of all judges . Where such a majority is not achieved , the matter under consideration is to be dismissed .

Section CARDINAL governs the disciplinary liability of constitutional judges . Disciplinary proceedings against a ORG judge are conducted by a disciplinary chamber composed of CARDINAL judges of that court . The judge concerned may lodge an objection to a disciplinary chamber ’s decision within DATE . The objection is to be decided upon by a plenary meeting of ORG .

Pursuant to section ORG ) , a judge of ORG is excluded from dealing with a case where there can be doubts about his or her impartiality in view of his relation to the subject matter of the proceedings , the parties or their representatives . The judge concerned has to inform the President of ORG of the reasons for his or her exclusion without delay ( section CARDINAL(CARDINAL ) ) .

Section CARDINAL(CARDINAL ) entitles a party to challenge a judge for bias . Pursuant to section CARDINAL(CARDINAL ) , where ORG is to determine a case at a plenary session , the decision on his or her exclusion for bias is to be taken at the plenary session ; the judge concerned does not take part in the vote . If no majority is obtained , the President ’s vote is decisive . Section CARDINAL ) provides for the same way of proceeding where a judge declares himself or herself biased .

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

Section PERSON ) provides that decisions in proceedings under LAW and QUANTITY of the LAW are taken by a secret vote .

DATE . Pursuant to section DATE , special legal rules are to be applied in an appropriate manner to disciplinary proceedings against the President and Vice - President of ORG and ORG . Reference is made to ORG .

Part CARDINAL deals with disciplinary liability of judges in general and governs disciplinary proceedings .

Section CARDINAL(CARDINAL)(c ) qualifies as a serious disciplinary offence repeated breaches of obligations in the context of administration of a court under special law , continued breach of duties of a court office holder ( súdny funkcionár ) despite earlier warning , or a breach of duties of a court office holder such as to pose a serious threat to the trustworthiness and functioning of the judiciary .

Under section CARDINAL(CARDINAL)(b ) a serious disciplinary offence committed by a judge who has earlier been sanctioned for a serious disciplinary offence is deemed incompatible with that judge ’s continuing in office .

Section CARDINAL(CARDINAL ) provides for the following sanctions for serious disciplinary offences or for minor offences which , at the same time , have the nature of a serious disciplinary offence :

a ) transfer of the judge to a lower court ;

b ) reduction in salary by PERCENT for DATE ;

c ) removal from the post of president or vice - president of a court if a serious disciplinary offence has been committed under section CARDINAL(CARDINAL)(c ) of ORG by virtue of section CARDINAL(CARDINAL ) this sanction is not applicable to the President and Vice - President of ORG ) ; and

d ) publication of a decision indicating that a judge had failed to provide information about an increase in his property as required by the law .

Section CARDINAL(CARDINAL ) provides that the sanction for a serious disciplinary offence which is deemed incompatible with a person ’s continuing as a judge has always to be the removal of that person from his or her post as a judge .

Pursuant to section CARDINAL ) , disciplinary proceedings against the President and Vice - President of ORG are carried out by ORG .

Section CARDINAL(CARDINAL ) and ( CARDINAL ) provides that while first - instance chambers dealing with judges accused of disciplinary offences ( other than the President and Vice - President of ORG ) comprise CARDINAL judges , those dealing with such cases at second level consist of CARDINAL judges .

DATE . Section CARDINAL(CARDINAL)(a ) lists the Minister of ORG as one of the persons entitled to submit a representation for disciplinary proceedings to be brought against a judge .

Section CARDINAL(CARDINAL ) allows a person concerned to challenge for bias a judge of a disciplinary chamber . The matter is to be decided by a different disciplinary chamber at the same level or , where that is not possible , a second - instance disciplinary chamber ( sub - section CARDINAL ) . Where the number of judges lacking impartiality prevents a disciplinary chamber from deciding , the election of a disciplinary chamber for that purpose and its composition are to be decided upon by ORG ( sub - section CARDINAL ) .

An appeal is available against a decision of a first - instance disciplinary chamber , and is to be examined by an appellate disciplinary chamber ( section CARDINAL(CARDINAL ) and ( CARDINAL ) ) .

The judge concerned may request reopening of disciplinary proceedings within DATE of the final disciplinary chamber ’s decision taking effect ( section CARDINAL(CARDINAL ) ) .

Section CARDINAL(CARDINAL ) provides that the provisions of LAW relate to disciplinary proceedings in an appropriate manner unless LAW provides otherwise .

Section CARDINAL(CARDINAL ) provides that the presidents of courts ensure management and administration of their courts in accordance with LAW .

Under section CARDINAL(CARDINAL)(a ) presidents and vice - presidents of courts are obliged to carry out the duties of their office conscientiously and to discharge those duties in due and timely fashion as the authority responsible for the management and administration of courts .

Pursuant to section CARDINAL(CARDINAL)(c ) , presidents ensure the economic , material and financial aspects of the functioning of courts .

The Law on Financial Control and Internal Audit ( “ LAW DATE ” ) governs the financial control , internal and governmental audit in respect of use of public funds and other activities of public administration bodies . It provides for the powers of ORG and other public administration authorities in the sphere of financial control and internal and governmental audit , as well as for the rights or obligations of persons who are subjected to such control or audit .

Pursuant to section CARDINAL(CARDINAL)(c ) , read in conjunction with section CARDINAL of Law no . DATE to which it refers , public administration bodies are legal persons appearing on the register of organisations of ORG and which are classified , in accordance with the rules in force within ORG , as playing , inter alia , a central administration role .

Section CARDINAL(CARDINAL)(p ) defines as a central authority a public administration body which administers a separate chapter of the ORG budget .

Section CARDINAL(CARDINAL)(a ) obliges entities and their employees subject to audit to set up conditions permitting a financial audit and to abstain from any action which might threaten the setting up and smooth conduct of such an audit .

Section CARDINALa(CARDINAL)(a ) , as in force since DATE , entitles ORG to audit central authorities in the context of governmental audit .

Pursuant to section ORG , its purpose is to monitor and assess the financial management , efficiency and appropriateness of the use of public funds and human resources , security of information systems and their functioning , availability and completeness and correctness of information on financial transactions and economic management , as well as the manner in which shortcomings identified during earlier audits have been eliminated .

Section CARDINALd(CARDINAL ) provides that obligations under , inter alia , section CARDINAL(CARDINAL)(a ) are incumbent equally on the body subject to audit and its employees .

Pursuant to section CARDINAL ) , persons subject to audit are obliged , inter alia , to inform the auditor in writing within the period set in the audit report whether and how they have taken into consideration the recommendations formulated in the report , and what measures they have taken with a view to eliminating the shortcomings identified during the audit .

Section CARDINAL defines ORG as a ORG body which is independent and bound only by law when carrying out its control activities .

Pursuant to section CARDINAL ) ORG controls the management of funds from budgets which under the relevant law are approved by ORG .

Proceedings PL . ÚS CARDINAL concerned a representation in which the applicant , then the Minister of ORG , initiated disciplinary proceedings against the President of ORG . The alleged disciplinary offence concerned the latter ’s refusal to allow a group of supervisors of ORG to check how ORG was complying with the legislation and regulations governing civil servants .

In its decision of CARDINAL DATE , adopted at a plenary session , ORG concluded that the facts in issue did not amount to a serious disciplinary offence within the meaning of section CARDINAL(CARDINAL)(c ) of ORG .

ORG expressed the view that the principle of independence of the judiciary implied that ORG must not influence , by its supervisory or other activities , the internal situation within the judiciary . It was the main task of the ORG administration to serve the courts in the discharge of their duties by providing the necessary material , logistical and organisational support at the level required for the efficient functioning of the judiciary .

In the case under consideration , allowing such check was beyond a constitutionally acceptable interpretation of the supervisory powers of ORG . It would result in the President of ORG being deprived of guarantees linked to the relations between the judiciary and ORG administration .

Lastly , the decision stated that the President of ORG had refused to allow the check on the basis of his legal opinion as to the relevant statutory provisions , and that he had so informed the Minister of Justice . The request under consideration therefore related to a difference of opinion as regards the interpretation and application of the relevant law . Such an issue , however , could not be the subject matter of disciplinary proceedings . Such proceedings must not be allowed to bring about a weakening of the principles of separation of powers and independence of the judiciary .

The applicant relied on the following decisions on exclusion of constitutional judges who had been involved in proceedings leading to the imposition of a disciplinary sanction on him in the present case .

On DATE ORG ) excluded Judge PERSON from a case to which the applicant was CARDINAL of the parties . In his statement Judge PERSON explained that he and the applicant had been candidates for election as President of ORG in DATE and that that election had been the subject matter of earlier proceedings before ORG . In its decision ( III . ÚS CARDINAL/CARDINAL ) ORG admitted that further involvement of Judge PERSON might raise doubts as to his objective impartiality .

On DATE the Constitutional Court excluded Judge PERSON , at his own request , from a case with a bearing on the applicant ( decision III . ÚS CARDINAL/CARDINAL ) . It noted in particular that Judge PERSON considered himself biased due to the applicant ’s public and personal statements about him .

On DATE a chamber of the Constitutional Court excluded Judge PERSON from a case in which ORG was a defendant and where the applicant was acting on the latter ’s behalf ( decision III . ÚS CARDINAL/CARDINAL ) . The chamber held that the critical statements of the applicant in respect of Judge PERSON justified the conclusion that from an objective point of view the latter was not impartial . The decision also stated that the situation was different from that in the above - mentioned disciplinary proceedings against the applicant , as there was no risk that ORG would be unable to deal with the case because of the exclusion of several judges .

On DATE ORG of the Constitutional Court excluded Judge PERSON from different proceedings to which the applicant was a third party ( decision III . ÚS DATE ) despite his statement that he did not consider himself biased . The chamber held that the critical remarks of the applicant in respect of Judge PERSON justified the applicant ’s fear that that judge might not decide on the case in an impartial manner .

ORG . The recommendation was adopted on DATE . Its relevant parts provide :

“ CARDINAL . Judges should have unfettered freedom to decide cases impartially , in accordance with the law and their interpretation of the facts ...

... Judges’ impartiality and independence are essential to guarantee the equality of parties before the courts ...

All necessary measures should be taken to respect , protect and promote the independence and impartiality of judges ...

... In their decision making judges should be independent and impartial ...

The authorities responsible for the organisation and functioning of the judicial system are obliged to provide judges with conditions enabling them to fulfil their mission and should achieve efficiency while protecting and respecting judges’ independence and impartiality ...

Judges should act independently and impartially in all cases , ensuring that a fair hearing is given to all parties ...

Judges should adjudicate on cases which are referred to them . They should withdraw from a case or decline to act where there are valid reasons defined by law , and not otherwise ...

Disciplinary proceedings may follow where judges fail to carry out their duties in an efficient and proper manner . Such proceedings should be conducted by an independent authority or a court with all the guarantees of a fair trial and provide the judge with the right to challenge the decision and sanction . Disciplinary sanctions should be proportionate . ”

The Basic Principles on ORG were adopted by the Seventh ORG Congress on ORG and the Treatment of Offenders , held in GPE in DATE . They were endorsed by ORG resolutions CARDINAL/CARDINAL of CARDINAL DATE and CARDINAL/CARDINAL of CARDINAL DATE . Their relevant part reads as follows :

“ CARDINAL . The judiciary shall decide matters before them impartially , on the basis of facts and in accordance with the law , without any restrictions , improper influences , inducements , pressures , threats or interferences , direct or indirect , from DATE or for any reason . ”

PERSON was adopted by ORG ( ORG ) in DATE . It provides in paragraph CARDINAL that the mission of the judiciary is to guarantee the very existence of the rule of law , and thus to ensure the proper application of the law in an impartial , just , fair and efficient manner . Pursuant to paragraph CARDINAL , judicial independence and impartiality are essential prerequisites for the operation of justice .

The Bangalore Draft Code of Judicial Conduct DATE was adopted by ORG , and it was revised at the Round Table Meeting of Chief Justices held in GPE in DATE . The relevant principles contained therein read as follows :

“ Value CARDINAL : IMPARTIALITY

Principle :

Impartiality is essential to the proper discharge of the judicial office . It applies not only to the decision itself but also to the process by which the decision is made .

Application :

CARDINAL A judge shall perform his or her judicial duties without favour , bias or prejudice .

DATE A judge shall ensure that his or her conduct , both in and out of court , maintains and enhances the confidence of the public , the legal profession and litigants in the impartiality of the judge and of the judiciary ...

CARDINAL A judge shall disqualify himself or herself from participating in any proceedings in which the judge is unable to decide the matter impartially or in which it may appear to a reasonable observer that the judge is unable to decide the matter impartially . Such proceedings include , but are not limited to , instances where

CARDINAL.CARDINAL.CARDINAL the judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings ; ...

Provided that disqualification of a judge shall not be required if no other tribunal can be constituted to deal with the case or , because of urgent circumstances , failure to act could lead to a serious miscarriage of justice . ”

In DATE ORG on ORG adopted the Commentary on ORG . Its relevant parts read as follows :

“ CARDINAL . The generally accepted criterion for disqualification is the reasonable apprehension of bias . Different formulae have been applied to determine whether there is an apprehension of bias or prejudgment . These have ranged from ‘ a high probability’ of bias to ‘ a real likelihood’ , ‘ a substantial ORG , and ‘ a reasonable suspicion’ of bias . The apprehension of bias must be a reasonable one , held by reasonable , fair minded and informed persons , applying themselves to the question and obtaining thereon the required information . The test is ‘ what would such a person , viewing the matter realistically and practically DATE and having thought the matter through – conclude . Would such person think that it is more likely than not that the judge , whether consciously or unconsciously , would not decide PERSON . The hypothetical reasonable observer of the judge ’s conduct is postulated in order to emphasize that the test is objective , is founded in the need for public confidence in the judiciary , and is not based purely upon the assessment by other judges of the capacity or performance of a colleague ...

Depending on the circumstances , a reasonable apprehension of bias might be thought to arise ( a ) if there is personal friendship or animosity between the judge and any member of the public involved in the case ; ( b ) if the judge is closely acquainted with any member of the public involved in the case , particularly if that person ’s credibility may be significant in the outcome of the case ; ( c ) if , in a case where the judge has to determine an individual ’s credibility , he had rejected that person ’s evidence in a previous case in terms so outspoken that they throw doubt on the judge ’s ability to approach that person ’s evidence with an open mind on a later occasion ; ( d ) if the judge has expressed views , particularly in the course of the hearing , on any question at issue in such strong and unbalanced terms that they cast reasonable doubts on the judge ’s ability to try the issue with an objective judicial mind ; or ( e ) if , for any other reason , there might be a real ground for doubting the judge ’s ability to ignore extraneous considerations , prejudices and predilections , and the judge ’s ability to bring an objective judgment to bear on the issues . Other things being equal , the objection will become progressively weaker with the passage of time between the event which allegedly gives rise to a danger of bias and the case in which the objection is made ...

Doctrine of necessity

Extraordinary circumstances may require departure from the principle discussed above . The doctrine of necessity enables a judge who is otherwise disqualified to hear and decide a case where failure to do so may result in an injustice . This may arise where there is no other judge reasonably available who is not similarly disqualified , or where an adjournment or mistrial will work extremely severe hardship , or where if the judge in question does not sit a court can not be constituted to hear and determine the matter in issue . Such cases will , of course , be rare and special . However , they may arise from time to time in final courts of small numbers charged with important constitutional and appellate functions that can not be delegated to other judges . ”

In DATE ORG of ORG for the Judiciary ( ENCJ ) adopted a declaration approving the ORG report “ ORG Values and Qualities ” . The principles included in the report comprise , among others , the following :

“ Impartiality and people ’s perception of impartiality are , with independence , essential to a fair trial .

The impartiality of the judge represents the absence of any prejudice or preconceived idea when exercising judgment , as well as in the procedures adopted prior to the delivery of the judgment ...

To guarantee impartiality , the judge :

- ORG his judicial duties without fear , favouritism or prejudice ;

- Adopts , both in the exercise of his functions and in his personal life , a conduct which sustains confidence in judicial impartiality and minimises the situations which might lead to a recusal ;

- PERSON himself from cases when :

he can not judge the case in an impartial manner in the eyes of an objective observer ;

he has a connection with one of the parties or has personal knowledge of the facts , has represented , assisted or acted against one of the parties , or there is another situation which , subjectively , would affect his impartiality ; ...

A judge has a duty of care to prevent conflicts of interest between his judicial duties and his social life . If he is a source of actual or potential conflicts of interest , the judge does not take on , or withdraws immediately from , the case , to avoid his impartiality being called into question . ” ...

At a meeting in GPE ORG , at the request of ORG , considered developments in the legislation concerning the judiciary and the Government ’s proposed legislative amendments . The relevant parts of the resolution adopted on CARDINAL DATE read :

“ CARDINAL . ORG underlines once again that independence has to be accompanied by accountability . Under the pretext of accountability , however , this should never result in the other powers of the state gaining undue influence on the judiciary . Transparency of procedures and proper reasoning of decisions are a means of guaranteeing accountability and increasing trust in the judiciary ...

... Disciplinary proceedings , or importantly , the threat of such proceedings , must not risk being misused by placing improper pressures on the judge concerned . Accordingly international documents not only place the jurisdiction to hold disciplinary procedures on a court or an independent body , but also promote the establishment of an independent body or person to initiate such procedures ( Art . CARDINAL of the Recommendation CM / Rec ( CARDINAL , para . CARDINAL , CARDINAL and CARDINAL ii and iii NORP Opinion DATE ) and Art . CARDINAL of ORG of ORG ( fundamental principle ) . To place the power to commence proceedings with a member of the government infringes the balance of powers . Such an arrangement does not help to increase trust in the judiciary and may increase the suspicion of political interference . What is necessary are quick and fair proceedings before a disciplinary court . ”


Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre

The applicant was born in DATE and lives in GPE .

The applicant is the owner of a house on FAC in GPE , where she resides with her parents and her minor son , NORP G.

According to the ORG , since DATE FAC had been a part of the NORP trans - republican motorway running from GPE ( GPE ) to GPE ( GPE ) . In DATE ( after disintegration of the GPE ) the NORP authorities undertook a motorway stocktaking project and re - classified part of the motorway routed through the applicant ’s street as the “ MCARDINAL GPE - Lugansk - Izvarine motorway ” .

According to the applicant , until the DATE stocktaking project , the GPE - Volgograd motorway had never been routed through FAC . Instead , it ran through FAC in GPE . FAC , which is QUANTITY wide , is lined with private houses and gardens and is completely unsuitable for accommodating cross - town traffic . It has no drainage system , pavements or proper surfacing able to support heavy lorries and has been initially designed as an exclusively residential street . In DATE , in the course of the stocktaking project , ORG of ORG agreed , for the first time , that the MCARDINAL motorway should pass via FAC . In support of this allegation , the applicant provided a copy of a letter sent by the abovementioned ORG on DATE addressed to ORG ( PERSON ) , in which it notified that agency of its consent to the MCARDINAL motorway being routed via a number of streets in GPE , including FAC .

According to the applicant , following this change in the routing of traffic , her house eventually became practically uninhabitable . It suffered heavily from vibration and noise caused by up to CARDINAL lorries passing by TIME . In addition , air pollution increased substantially over DATE and numerous potholes emerged in the inadequate surface of the road . As a result of driving across these potholes , the vehicles emitted additional fumes and stirred up clouds of dust . In trying to deal with the potholes , the road service department started filling them with cheap materials , such as waste from nearby coal - mines , which had a high heavymetal content .

On DATE , responding to complaints from the street ’s residents , ORG ( Державна санітарно-епідеміологічна служба в ORG області ) measured the level of pollution near several FAC houses , including the applicant ’s . During the test period of TIME , CARDINAL vehicles were recorded as having passed by , CARDINAL of which ( PERCENT ) emitted pollutants ( nitrogen dioxide , carbon monoxide , saturated hydrocarbons , lead , copper , etc . ) in excess of applicable safety standards . It was further established that the content of copper and lead in dust stirred up exceeded the safety standards by CARDINAL and CARDINAL times respectively . The monitoring team also noted that the road surface was damaged .

By way of evidence concerning the damage to the applicant ’s house , she presented a certificate dated DATE signed by a group of assessors consisting of a city council deputy , the head of the local ORG association and a private individual . The group attested that it had examined the house and found that it had been damaged . In particular , the basement was cracked and the walls were covered with coal dust , which had allegedly been used during ad - hoc repairs of the road aimed at filling the potholes and subsequently disturbed by passing traffic . It also noted that the road surface near the applicant ’s house had been badly damaged , thus amplifying vibrations from passing vehicles and causing vibration of the furniture inside the applicant ’s house and pieces of plaster to occasionally fall from its ceiling and walls .

By way of evidence of health damage , the applicant presented medical certificates attesting that her father , mother and minor son were suffering from numerous diseases . The applicant ’s father , born in DATE , was diagnosed , in particular , with chronic erosive gastroduodenitis , chronic bronchitis , pneumatic fibrosis , atherosclerosis , hypertension , cardiosclerosis and other diseases , cumulatively resulting in his being assessed in DATE as a “ second ( intermediate ) degree ” disabled person .

The applicant ’s mother ( PERSON ) , born in DATE , was found to be suffering , inter alia , from ulcers , chronic bronchitis , respiratory insufficiency , ischemic heart disease , deforming osteoarthritis , osteochondrosis and other diseases .

The applicant ’s minor son PERSON , born in DATE , started suffering from frequent respiratory tract diseases from DATE . In DATE he was diagnosed as suffering from secondary immunodeficiency , non - rheumatic carditis and biliary dyskinesia . In DATE D. PERSON was further diagnosed with hyperexcitability and hyperactivity disorder . During in - patient treatment of PERSON in DATE , he was found to have excessive levels of copper and lead in his blood and urine and was diagnosed as suffering from chronic poisoning from heavy - metal salts , chronic toxic hepatitis and toxic encephalopathy .

On DATE ORG recommended that the applicant ’s son be resettled . The certificate noted , in particular :

“ Regard being had [ to the fact ] that the child has been living in an environmentallysaturated area since his birth ( considerable pollution of air and soil with salts of heavy metals , sulphur dioxide , saturated and unsaturated carbohydrates ) , it is necessary to change his place of residence ” .

On numerous occasions PERSON complained on the family ’s behalf to various authorities ( including the President of GPE , ORG , the municipal authorities and the prosecutor ’s office ) about intolerable levels of nuisance and pollution from FAC . According to the case file , the first complaints were lodged by her no later than DATE . On various occasions analogous complaints were also lodged individually and collectively by other K. Street residents . It is unclear from the case file what actions , if any , were taken by the authorities in response to these complaints prior to DATE .

On DATE , following the assessment of pollution levels undertaken on DATE ( mentioned in paragraph CARDINAL above ) , the NORP Regional Chief Sanitary Officer ( головний санітарний лікар PERSON області ) ordered the ORG Mayor to consider stopping through traffic using FAC and repairing FAC road surface . In his decision , that official mentioned that FAC was designated as a temporary transit thoroughfare and that heavy traffic had ruined the surface of the road . He further noted that the level of air pollution on FAC was in breach of the PERSON of GPE “ On ORG ( “ LAW ” ) and that such pollution could have adverse effects on the ORG health .

On an unspecified date PERSON complained to ORG about the level of pollution and demanded the initiation of a criminal investigation into the situation .

On DATE ORG rejected her demand , having found that while the fact of excessive pollution was not in dispute , there was no basis for linking this situation to any criminal wrongdoing on any authority ’s behalf . There was no appearance that the decision to use FAC as a transit road had been in and of itself unlawful . As regards repairing the road , ORG had ordered ORG ( hereafter “ the Executive Committee ” ) to redress violations of environmental law . It further notified PERSON that according to its information , repairs were planned for DATE .

On DATE FAC was blocked to prevent the further passage of automobile traffic .

On DATE the NORP Regional Prosecutors’ Office further informed PERSON that on DATE ORG had decided to order repairs to FAC .

On DATE the Chief of ORG of the ORG recommended that the municipality find funding for the repair of the surface of PERSON and L. Streets .

On DATE ORG of ORG ( DATE “ the Highways Agency ” ) wrote to the Mayor of ORG , acknowledging that the section of the MCARDINAL road in the region was not sufficiently equipped to accommodate the increased traffic and that there was an urgent need to build transit routes bypassing populated communities , including ORG . However , regard being had to the lack of available funding , these works had not been carried out and ORG had asked its central headquarters to deal with the situation . It further suggested that the GPE municipality should renovate the intown part of the road using funds garnered from automobile tax retained by the city treasury .

On DATE ORG informed ORG that repairing the surface of FAC had been entered into ORG for DATE . However , no funding for the works had ever been received . It further noted that ORG lacked any alternative roads meeting the standards of a transit thoroughfare and that the use of FAC for this purpose – which it was unequipped for – had resulted in heavy deterioration of its surface .

On DATE the NORP Regional Chief Sanitary Officer confirmed in his correspondence that the passage of vehicles through FAC had been impossible , the street having been blocked by concrete blocks and other barriers .

On DATE the applicant informed the ORG , without providing any supporting materials , that the use of K. Street as a motorway had been recently restarted without any in - depth repairs having been carried out .

In DATE PERSON lodged a civil claim on the applicant ’s behalf , seeking to oblige ORG to resettle the family and to pay CARDINAL hryvnias ( ORG ) in compensation for damage caused to their house and health by the operation of the MCARDINAL motorway .

In the course of the trial , the court examined written evidence presented by the applicant and questioned officials of the municipal ORG , and officers from the traffic police . ORG official stated that FAC was QUANTITY wide ; it had no drainage or pavements because there was no funding available for constructing these amenities . ORG official acknowledged that his department was partly responsible for ORG maintenance , which was to be funded by ORG and from automobile taxes . As the funding had not been forthcoming , the street had not been maintained properly . He also opined that the damage to the applicant ’s house had more likely been caused by construction flaws than by the operation of the motorway . The official from ORG submitted that FAC , being part of a motorway , was to be managed by it jointly with ORG . Finally , a traffic police officer submitted that for DATE there had been no complaints of traffic accidents on FAC and that twice a year the traffic police examined the state of the road .

On DATE ORG rejected PERSON claim . The full text of its reasoning reads as follows :

“ It has been established in court that FAC in GPE hosts ORG motorway .

The plaintiff did not provide the court with evidence that on account of ORG fault the road is operated in breach of technical requirements existing for this category of roads . The plaintiff did not specify which particular provisions have been breached .

In addition , the plaintiff did not provide evidence that it is the [ ORG ] fault that her lawful rights have been infringed , namely , [ that ] her house has been destroyed , [ and that ] herself and her family suffer from various illnesses , resulting in mental distress .

Based on the above , the court considers it necessary to reject the claim as illfounded ... ”

PERSON appealed . Referring primarily to LAW and LAW , she noted , in particular , that by focusing on the issue of the road ’s maintenance , the first - instance court had deviated from the object of her claim . In fact , instead of seeking to oblige the plaintiff to repair the street , she had demanded resettlement , as in her opinion the street was completely unsuitable for hosting a motorway in the first place . The defendant had been at fault , not only for allowing through traffic , but also for failure to organise its regular supervision by traffic police , environmental and sanitary services to ensure safety , and anti - pollution measures . The claimant asserted that the witnesses had presented inaccurate data . In particular , there had been numerous traffic accidents on FAC , and a recent police response to CARDINAL of the ORG complaints about that issue had been included in the case file . PERSON further complained that the court had failed to summon officials from the environmental and sanitary services to present comprehensive information about the environmental situation around the road and so had failed to ensure her and her family ’s right of access to environmental information .

On DATE ORG dismissed this appeal . The full text of the court ’s reasoning was as follows :

“ Rejecting the claim of PERSON ORG , the court lawfully concluded that ORG motorway has been assigned on the basis of full managerial maintenance to the [ Highways Agency ] ... and not to ORG .

The plaintiff did not provide the court with any evidence that the defendant had wrongly caused her non - pecuniary damage and did not specify the legal basis for compensation of the [ alleged ] non - pecuniary damage and [ for ] resettlement ... ”

On DATE PERSON appealed in cassation . She submitted that in her view ORG had been the proper defendant . In support of this argument , she provided a letter from ORG dated DATE informing her that FAC was not on its books and that it was to be managed by the municipality . She further alleged that the court had never examined whether the decision of ORG for GPE and ORG taken in DATE to route through traffic via FAC had been lawful and reasonable . She considered that it had been unlawful to turn a QUANTITY - wide street into a motorway , especially in light of the subsequent failure of the municipality to organise proper environmental monitoring and management of the road . PERSON additionally mentioned that the first measurement of pollution levels had been carried out only in DATE , following numerous complaints by the street ’s residents .

On DATE ORG of GPE rejected PERSON request for leave to appeal in cassation .

Relevant provisions of the LAW read as follows :

“ To ensure ecological safety and to maintain the ecological balance on the territory of GPE , to overcome the consequences of the GPE catastrophe — a catastrophe of global scale , and to preserve the gene pool of the NORP people , is the duty of the ORG . ”

“ Everyone has the right to an environment that is safe for life and health , and to compensation for damages inflicted through the violation of this right ... ”

The relevant provisions of the above law as worded at the material time read as follows :

“ Carrying out a business or other type of activity connected to a breach of conditions and requirements concerning the emission of pollutants into the air and levels of [ pollution ] by physical and biological factors envisaged by permits may be restricted , suspended or discontinued according to the law . ”

Local bodies of executive power , bodies of local self - governance , enterprises , establishments , organisations and citizens [ involved in ] entrepreneurial activity shall be obliged to take necessary measures to prevent and preclude [ an increase in ] established levels of air [ pollution ] by physical and biological factors and [ its effects on ] human health . ”

“ In order to prevent and mitigate air pollution by methods of transport and by physical factors and facilities connected to them , there shall be :

Developed and implemented a system of measures concerning reductions in emissions , detoxification of pollutants and mitigation of physical impacts in the course of the development , production , exploitation and repair of methods of transport and in [ associated ] facilities ;

A shift of methods of transport and [ associated ] facilities to less toxic types of fuel ;

Rational planning and development of populated communities in conformity with the distances to main roads set out by law or regulation ;

The movement of transport enterprises , cargo transit , and automobile transport [ so that they take place ] outside of densely populated residential areas ;

Restrictions on the entrance of automotive traffic and other methods of transport and on [ associated ] facilities in areas zoned for residential , resort , health , recreational and nature - reserve uses , and in places of mass recreation and tourism ;

Improvement in the state of maintenance of main roads and street surfaces ;

Implementation of automated systems of traffic regulation in the cities ;

Improvement in technologies for the transportation and storage of fuel at petrol refineries and petrol stations ;

Implementation of and improvement in monitoring activities , regulatory facilities , diagnostics facilities and comprehensive systems of control over compliance with environmental safety laws and regulations governing methods of transport and [ associated ] facilities ;

A prohibition on the development , production and exploitation of methods of transport and [ associated ] facilities or physical factors [ giving rise to ] a level of pollutants in exhaust fumes which exceeds [ applicable ] standards . ”

“ In order to preclude and decrease [ excessive ] levels of production and other noise and [ in order to ] achieve safe [ levels of noise ] , there shall be :

Improvement in the design of methods of transport and [ associated ] facilities , and in the conditions for their exploitation , as well as due maintenance of train and tram tracks , roads , [ and ] street surfaces ;

The situation , during the planning and development of populated communities , of enterprises , transport thoroughfares , aerodromes and other objects containing sources of noise in accordance with sanitary requirements and construction guidelines established by law and [ in accordance with ] noise maps ;

Administrative measures concerning the preclusion and decrease of ... noise , including the implementation of regulations and schedules [ governing ] transport and vehicle movement , and [ the operation of associated ] facilities , within the boundaries of populated communities .

The relevant paragraph of the Guidelines as worded at the material time reads as follows :

“ In the course of developing new or reconstructing existing motorways of national importance , their routes shall be channelled , as a rule , [ so as to ] bypass existing populated communities . ”

The Aarhus Convention ( “ Convention on Access to Information , Public Participation in Decision - making and Access to ORG in ORG ” , ORG ) was adopted on DATE by ORG for LOC and came into force on DATE . GPE ratified the Convention on DATE .

ORG may be broken down into the following areas :

- Developing public access to information held by the public authorities , in particular by providing for transparent and accessible dissemination of basic information .

- Promoting public participation in decision - making concerning issues with an environmental impact . In particular , provision is made for encouraging public participation from the beginning of the procedure for a proposed development , “ when all options are open and effective public participation can take place ” . Due account is to be taken of the outcome of the public participation in reaching the final decision , which must also be made public .

- Extending conditions for access to the courts in connection with environmental legislation and access to information .

On DATE ORG of ORG adopted Recommendation DATE ) on environment and human rights . The relevant part of this recommendation states :

“ CARDINAL . The ORG recommends that the ORG of member GPE :

i. NORP ensure appropriate protection of the life , health , family and private life , physical integrity and private property of persons in accordance with ORG , CARDINAL and DATE of LAW and by LAW , by also taking particular account of the need for environmental protection ;

ii . recognise a human right to a healthy , viable and decent environment which includes the objective obligation for states to protect the environment , in national laws , preferably at constitutional level ;

iii . safeguard the individual procedural rights to access to information , public participation in decision making and access to justice in environmental matters set out in LAW ;


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

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

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

The applicant ’s wife died on DATE . They had no children from the marriage . His claim for widows’ benefits was made on DATE and was rejected on DATE on the ground that he was not entitled to widows’ benefits because he was not a woman . The applicant asked for reconsideration and on DATE he was informed that his claim could not be reconsidered . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under GPE law .

The domestic law relevant to this application is set out in PERSON v. the GPE , no . CARDINAL , § § DATE , ORG CARDINAL-IV and Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger

The applicant was born in DATE and lives in the city of ORG .

NORP In DATE a family consisting of husband and wife , ORG and PERSON , respectively , and GPE , the daughter of GPE , was granted the tenancy of a publicly - owned apartment . In DATE ORG and GPE divorced .

NORP In DATE GPE and GPE instituted civil proceedings in ORG of Kharkiv ( “ the ORG ” ) against ORG , seeking to declare that the latter was no longer entitled to live in the apartment in question . ORG , in turn , lodged a counterclaim , seeking to have his property right over the disputed apartment acknowledged .

On DATE the court allowed the claim of GPE and GPE

In DATE , following privatisation procedures , a “ property certificate ” ( приватизаційний сертифікат ) was issued to GPE and GPE for the apartment .

NORP However , on DATE , following an application for supervisory review ( protest ) , ORG ( after DATE ORG ; “ the ORG ” ) set aside the judgment of DATE and remitted the case for fresh consideration .

On DATE GPE and GPE sold the apartment to the applicant .

On an unspecified date in DATE or DATE , ORG lodged additional claims , seeking to have the apartment ’s sales contract declared null and void and to have the applicant evicted . According to a copy of the court records provided by the applicant , he has been participating in the proceedings as a third party since DATE . On DATE ORG attached the disputed apartment . Subsequently , on a number of occasions , the applicant requested the court to lift its attachment but this was to no avail .

On DATE the applicant lodged a counterclaim against ORG , seeking a declaration that the contract was valid and that he was a bona fide purchaser . On DATE ORG ruled to consider this claim at the same time as other claims lodged by ORG

On DATE ORG allowed the claims of ORG and the applicant , and dismissed the claims of ORG In particular , it found that ORG was no longer entitled to live at the disputed apartment , declared the sales contract valid and acknowledged that the applicant was a bona fide purchaser . ORG appealed .

DATE and DATE the courts examined the admissibility of ORG ’s appeal . On DATE ORG extended the time - limit during which the parties could lodge an appeal against the judgment of DATE . According to the applicant , the courts did not inform him about the hearings on the appeal and the decisions were not delivered to him in good time .

On DATE ORG quashed the judgment of DATE and remitted the case for fresh consideration . On DATE ORG , sitting as a court of cassation , dismissed the appeals in cassation of ORG and the applicant , and upheld the decision of CARDINAL DATE .

On DATE ORG took over the case .

On DATE ORG lodged a request to transmit the case to another court . On DATE ORG allowed his request . On DATE ORG quashed the ruling of DATE .

The proceedings are still pending before the first - instance court .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Volodymyr Butkevych;Zdravka Kalaydjieva

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

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

i. Proceedings for damages

In DATE the applicant created a private school of traffic education ( called ORG , ORG ) . According to him , the ORG ran a similar education program called the “ Road and Motor Vehicle Traffic Safety ” and , consequently , liquidated “ by fraudulent means of an unfair economic competition ” the activities and educational programs of the private school .

On DATE the applicant decided to issue proceedings for damages against ORG .

The proceedings terminated by a decision of ORG ( PERSON ) of DATE .

By a judgment of DATE the GPE ORG ( obvodní soud ) found the applicant guilty .

On DATE ORG ( krajský soud ) upheld this judgment . On DATE ORG ( PERSON ) quashed the lower ORG judgment and declared the applicant non - guilty .

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the ORG ’s decision in the case of PERSON v. GPE , no . MONEY ( dec . ) , § § CARDINAL - CARDINAL , DATE ) .