The applicants , Mr PERSON and Mr ORG , are NORP nationals , born in DATE and DATE respectively , who live in GPE and GPE ( GPE ) . They were represented before the ORG by Mr PERSON , of ORG . The Government were represented by their Agent , PERSON , Director of ORG at ORG .

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

The applicants are victims of the ORG ACARDINAL accident which occurred in GPE on DATE , causing the deaths of CARDINAL people and injuring CARDINAL others . The first applicant is also the chairperson of the accident victims ' association .

The vice - president responsible for investigations at the LOC tribunal de grande instance conducted the judicial investigation into the accident . In a judgment of DATE , ORG convicted various individuals , including the pilots of the aircraft , of unintentionally causing death and injury . An appeal on points of law was lodged against that judgment .

CARDINAL of the pilots personally filed a complaint with the GPE investigating judge and applied to join the proceedings as a civil party , alleging “ breaking of seals and destruction , unlawful removal , concealment , dissimulation or alteration of public or private documents likely to facilitate the investigation of serious crimes and other major offences , the discovery of evidence , or the punishment of their perpetrator ” , on the ground that the aircraft 's flight recorders had been deliberately tampered with . This investigation was subsequently entrusted to the LOC investigating judge and was closed by an order of DATE finding that there was no case to answer , which was upheld by a judgment of CARDINAL DATE of ORG .

The investigation of CARDINAL complaints , including CARDINAL in which the applicants , inter alios , applied to join the proceedings as a civil party , was referred to the LOC investigating judge , either directly or as a result of the relinquishment of jurisdiction by the GPE investigating judge , which was confirmed by a judgment of ORG of DATE .

On DATE the applicants personally applied to the President of ORG to challenge the GPE investigating judge . They claimed that fraudulent acts of manipulation and substitution had been carried out at the outset or during the proceedings , and expressed doubts regarding the judge 's impartiality and objectivity . Their application was based , inter alia , on LAW .

By an order of DATE that was not subject to appeal , the President dismissed the challenge and ordered the applicants jointly and severally to pay a civil fine of MONEY ( MONEY ) . He held , in particular :

“ A judge does not infringe the requirement of impartiality by the mere fact of intervening in the same case twice , provided that he has not previously evaluated the facts referred to him on the second occasion ; short of impugning his motives , there are no objective reasons in the present case to doubt the impartiality of PERSON , whose investigative activities will be carried out under ORG supervision .

The fact that , in the exercise of the powers legally conferred on him , he had previously refused to conduct the investigations or hearings requested by those placed under examination or by the victims , in decisions which were approved by ORG when this matter was referred to it , does not provide grounds for finding that the applicants ' concerns are objectively justified . ”

He also directed that the claimants , ORG and the judge concerned were to be notified of this order .

The relevant Articles of LAW applicable at the material time read as follows :

Article CARDINAL

“ A person under investigation , defendant , accused and any party to the proceedings who wishes to challenge an investigating judge , a judge of the police court or CARDINAL or more or all of the judges of the criminal court , the court of appeal or the assize court must , if the request is to be valid , submit an application to the president of the court of appeal .

Members of ORG can not be challenged .

The application must mention by name the judge or judges being challenged and set out the grounds relied on , together with all the supporting evidence .

A party who has willingly proceeded in a court or before an investigating judge shall be entitled to challenge a judge only on the basis of circumstances that have arisen since , where they are such as to constitute a ground for challenge . ”

Article CARDINAL

“ The president shall receive the applicant 's supplementary memorial , if necessary , and that of the judge being challenged ; he shall obtain the opinion of ORG and shall rule on the application .

No appeal shall lie against the order ruling on the challenge . It shall have full legal force . ”

Article CARDINAL

“ Any order dismissing a challenge shall sentence the applicant to a civil fine of MONEY . ”


The applicant was born in DATE and lives in GPE . She was a journalist at the material time .

In DATE , the applicant published an article in the newspaper “ GPE CARDINAL ” ( no . CARDINAL ( CARDINAL ) , DATE ) . This article , entitled “ The Head of the ' twofold ' Ministry does not know where and how much he has saved ” , was a continuation of a regular rubric which informed the public of the financial situation of various political figures in the light of their property declarations . The background to the rubric was the problem of corruption in the public service .

In the article , amongst other politicians and government officials , Mr PERSON , a Member of ORG at the material time , was criticized for his declared assets .

The article began on the first page of the newspaper with a blackandwhite photograph ( QUANTITY ) of the parliamentarian 's DATE house . The following comment was underneath the picture : “ The DATE house of the GPE exile and Member of ORG , PERSON PERSON , does not look that modest . So what ? The NORP who have lost GPE deserve to take a breather somewhere ... ”

In the article the applicant cited the words of PERSON , DATE NORP writer : “ the Government is a sacred phenomenon ; there is no place for blackguards there ” . She further continued : “ the main principle of the relationship between the people and the Government – justice – is breached DATE ; we obey arbitrariness ... Let 's have a look now at the financial position of the officials suspected of arbitrariness . ”

The passage of the article describing Mr PERSON 's assets in the light of his latest property declaration was placed on the fifth page of the newspaper :

“ ... If Mr B. 's pride is his son , PERSON PERSON – Head of LAW GPE ” ( although , he might soon forfeit DATE is proud of his soninlaw , Mr P. , who is the Head of the President 's Security Service ( we already spoke about the latter in the previous edition ) . The son - in - law has probably given a hand to his fatherinlaw , otherwise the latter could hardly have finished for some CARDINAL,CARDINAL Laris [ ORG DATE ] the construction of the DATE house ( which , in fact , looks like a palace ) in the village of GPE on the banks of LOC .

You all know how difficult the everyday life of the refugees from GPE is , and , as it seems , still missing the sea , they want to be close to the water – Aragvi is undoubtedly a gorgeous river .

PERSON has also managed to purchase an apartment in GPE for the price of GEL CARDINAL [ EUR CARDINAL ] ( Mr PERSON gives such approximate , “ twofold ” prices everywhere ) . And , with due regard to the price of the Tsitelsofeli summer house , then Mr PERSON 's GPE apartment should be a truly grandiose construction . Or , maybe PERSON PERSON made a mistake and “ could not correctly ” assess the price of his riverside summer house ? !

In the list of his real property , PERSON has also cited the house he inherited in the village of PERSON , valued at GEL MONEY [ EUR CARDINAL ] , and the family library , valued at GEL CARDINAL [ ORG CARDINAL ] . Despite the fact that , DATE , the parliamentarian 's only income was his salary amounting to GEL CARDINAL,CARDINAL [ ORG CARDINAL ] in total , his savings amount to GEL CARDINAL [ ORG CARDINAL ] . One can only wonder whether PERSON and people like him feed on air , without ever spending salaries ; how else could they manage to save so much ? ! ”

Mr PERSON sued the applicant and the editor of the newspaper for defamation . He claimed that the facts mentioned in the article were untrue . They indirectly suggested that he had acquired the DATE house and the GPE apartment since becoming a parliamentarian in DATE , but in reality the origin of most of those possessions dated back to DATE .

On DATE the ORG in GPE allowed his claim and obliged the respondents to publish a rectification , conceding that the previous publication had been the result of a superficial research of the facts and only reflected the journalist 's subjective opinion . The court also ordered each of the respondents to pay to the parliamentarian GEL CARDINAL [ ORG CARDINAL ] for non - pecuniary damage and GEL CARDINAL [ EUR CARDINAL ] for costs and expenses .

In its reasoning , ORG acknowledged that the facts exposed in the article with regard to the parliamentarian 's assets were correct , since they were based on the official data submitted in the property declaration and were never disputed by the plaintiff . Nonetheless , the court concluded that the structure of the article , the epithets and artistic expressions were of such a sarcastic and humiliating nature that they would necessarily arouse in readers negative sentiments towards the parliamentarian . The court shared the plaintiff 's concern that the article implied that his declared assets were of illegal origin . Since the applicant failed to discharge , under LAW of LAW , the burden of proof by showing that she had not intended to accuse Mr PERSON of corruption , ORG found her liable in defamation .

On DATE ORG of ORG quashed and replaced the judgment of DATE . The court reasoned that the journalist 's criticism was aimed at the private sphere of the parliamentarian 's life rather than the political sphere . It concluded that the applicant had failed to bring proof of such statements as “ the son - in - law has probably given a hand to his father - in - law , otherwise the latter could hardly have finished ... the construction of the DATE house ... ” and “ one can only wonder whether PERSON and people like him feed on air , without ever spending salaries ; how else could they manage to save so much ? ! ”

ORG ordered the journalist and the newspaper to retract those statements as untrue and to pay jointly GEL CARDINAL [ EUR CARDINAL ] in non - pecuniary damages . The President of ORG expressed a dissenting opinion , mostly based on the principles of the case - law of ORG .

Subsequent to the applicant 's cassation appeal , on DATE ORG quashed the judgment of ORG and decided the case anew .

ORG recognised that the margin of criticism with regard to political figures was wider than that regarding other persons . However , considering that she had failed to prove the truthfulness of her suggestion that the impugned property had originated during the parliamentarian 's political life in DATE , the court found , on the basis of Article CARDINAL of LAW , that the applicant 's criticism was unfounded and therefore defamatory . It noted that she had indirectly called the parliamentarian a “ blackguard ” and had gratuitously accused him of “ arbitrariness ” .

ORG further stated that , “ in view of journalists ' high degree of responsibility within society , each and every one of their judgments should be based on well - investigated and well - examined facts and not on unfounded assumptions ” , as in the applicant 's case . The court concluded that the applicant had been negligent when writing about the parliamentarian .

ORG ordered the applicant and the editor to pay jointly GEL CARDINAL [ ORG CARDINAL ] in non - pecuniary damages . The applicant was further ordered to publish a rectification , specifically retracting the CARDINAL phrases - “ the son - in - law has probably given a hand to his father - in - law , otherwise the latter could hardly have finished ... the construction of the DATE house ... ” and “ one can only wonder whether PERSON and people like him feed on air , without ever spending salaries ; how else could they manage to save so much ? ! ” – as untrue statements .

According to the applicant , the final judgment of CARDINAL DATE was notified to her outside the time - limit prescribed by law and did not bear the stamp or signature of the Registrar of ORG .

Article CARDINAL guarantees freedom of thought and expression , together with the freedom of the mass media .

Article CARDINAL provided that an individual was entitled to request in court a rectification of the “ information ” ( cnobebi ) , which was damaging to his or her honour , dignity or professional reputation , unless the person who had disseminated that information could prove its truthfulness . The aggrieved party could also claim pecuniary and non - pecuniary damages , which he or she had sustained as a result of the dissemination of such information .

Section CARDINAL stated that the aim of the LAW was to fight corruption in the public service .

Pursuant to section DATE , a public official was obliged to file property and financial declarations within DATE of taking up office . The declarations had to be regularly submitted ( once a year ) during his or her public service , as well as upon resignation or dismissal .

Pursuant to sections CARDINAL and DATE , the property and financial declarations were to provide comprehensive information about all the public official 's immovable and movable assets , securities , savings deposits , bank accounts , currency , participation in business activities , performance of any remunerated work apart from business activities , contractual engagements , gifts and the existence of other income exceeding GEL CARDINAL [ EUR CARDINAL ] .

Under section CARDINAL § CARDINAL , in case the value of a declared asset could not be established without an expert assessment , an approximate value was to be indicated . Section CARDINAL § CARDINAL stated that the official 's property and financial declarations , except for certain confidential parts , were public documents .

Pursuant to section CARDINAL § CARDINAL , a journalist was responsible for verifying the correctness of information before publishing it .


Violation of P1-1;Pecuniary and non-pecuniary damage - award

Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE .

On DATE the applicant travelled from GPE to GPE in GPE through PERSON airport . She had on her MONEY ( ORG ) , CARDINAL NORP hryvnyas ( ORG ) and MONEY ( RUB ) . However , she only reported DATE and UAH CARDINAL in her customs declaration . The customs inspection uncovered the remaining ORG CARDINAL,CARDINAL , which the applicant claimed she had forgotten about . She was charged with smuggling , a criminal offence under LAW . The money was appended to the criminal case as physical evidence ( вещественные доказательства ) .

On DATE the ORG of GPE found the applicant guilty as charged and imposed a suspended sentence of DATE imprisonment , conditional on DATE probation . As regards the money , it referred to LAW and held that :

“ Physical evidence – USD CARDINAL,CARDINAL and ORG CARDINAL held in the evidence storage room of ORG – shall revert to the ORG . ”

NORP In his statement of appeal , counsel for the applicant contested the lawfulness of the confiscation measure . He submitted that the gravity of the offence should have been determined by reference to the amount the applicant had concealed from the customs , that is USD MONEY , rather than the entire amount she had carried . The money had been the object rather than the instrument of the offence and as such it should have been returned to the lawful owner because it had not been claimed that it had been criminally acquired .

On DATE ORG upheld the judgment by a succinct decision , without examining the counsel 's arguments in detail .

Counsel for the applicant submitted several applications for supervisory review of the judgments . The applications were rejected by a judge of ORG on DATE , the President of ORG on DATE , and a judge of ORG of GPE on DATE . As regards the confiscation measure , the judicial authorities maintained that the measure had been lawful and compliant with LAW .

On DATE the Presidium of ORG examined yet another application for supervisory review . It held that the applicant had been correctly found guilty of smuggling but amended the judgment in part concerning the confiscation measure , having found as follows :

“ However , the decision that the authentically declared amount of USD CARDINAL,CARDINAL and ORG CARDINAL should revert to the ORG was not founded on sufficient reasons .

In deciding that the foreign currency should revert to the ORG , the court posited that the currency transported by PERSON was the object of the offence . However , since her criminal intent was directed at the breach of the procedure for transferring cash money ( currency ) across the customs border rather than at their unlawful misappropriation , the cash money ( currency ) was not the object of the offence and therefore not liable to confiscation under LAW [ § CARDINAL ] ( CARDINAL ) of LAW .

Moreover , according to LAW ] ( CARDINAL ) of LAW , criminally acquired property , money or other valuables must revert to the ORG . The case file does not contain any evidence to the effect that PERSON obtained the above - mentioned money through criminal means or as the proceeds of criminal activity .

In such circumstances , the judgments in the part concerning the decision that the foreign currency should revert to the ORG may not be considered lawful or justified . ”

The ORG held that the judgments would be amended and that ORG CARDINAL and UAH CARDINAL would be returned to the applicant .

On DATE a writ of execution was issued and sent to the bailiffs ' service for enforcement .

On DATE the bailiffs determined that the enforcement was impossible because the cash money in the amount of USD CARDINAL,CARDINAL and UAH CARDINAL was absent from the evidence storage room of ORG . That money had been taken away on DATE by the bailiffs of GPE , which appeared to have made enforcement impossible .

LAW of the Russian Federation provides that smuggling , that is movement of large amounts of goods or other objects across the customs border of GPE , committed by concealing such goods from the customs or combined with non - declaration or inaccurate declaration of such goods , carries a penal sanction of DATE imprisonment ( LAW ) .

The Code of Criminal Procedure of GPE ( “ CCrP ” ) provides as follows :

“ CARDINAL . Any object may be recognised as physical evidence -

( CARDINAL ) that served as the instrument of the offence or retained traces of the offence ;

( CARDINAL ) NORP that was the target of the criminal acts ;

( CARDINAL ) any other object or document which may be instrumental for detecting a crime or establishing the circumstances of the criminal case .

NORP On delivery of a conviction ... the destiny of physical evidence must be decided upon . In such a case –

( CARDINAL ) instruments of the crime belonging to the accused are liable to confiscation , transfer to competent authorities or destruction ;

( CARDINAL ) objects banned from circulation must be transferred to competent authorities or destroyed ;

( CARDINAL ) NORP non - reclaimed objects of no value must be destroyed ... ;

( CARDINAL ) NORP criminally acquired money and other valuables must revert to the ORG by a judicial decision ;

( CARDINAL ) documents must be kept with the case file ... ;

( CARDINAL ) any other objects must be returned to their lawful owners or , if the identity of the owner can not be established , transferred to the ORG ... ”


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

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

NORP In DATE the applicant lawfully entered GPE together with his parents and CARDINAL siblings . Subsequently , he was legally resident in GPE . His parents were lawfully employed and have meanwhile acquired NORP nationality . The applicant attended school in GPE .

NORP In DATE criminal proceedings were instituted against the applicant . He was , inter alia , suspected of having broken into cars , shops and vending machines , of having stolen empties from a stock ground , of having forced another boy to steal CARDINAL NORP schillings from the latter ’s mother , of having beaten this boy and thereby having bruised him , and of having used a motor vehicle without the owner ’s authorisation .

On DATE ORG ( GPE ) convicted the applicant of CARDINAL counts of partially completed and partially attempted aggravated gang burglary ( gewerbsmäßiger ORG ) , of extortion ( GPE ) , of partially completed and partially attempted assault ( NORP ) , and of the unauthorised use of a vehicle ( unbefugter MONEY ) committed DATE and DATE . He was sentenced to CARDINAL months’ imprisonment , CARDINAL of which were suspended on probation . Moreover , he was instructed to start drug therapy .

On DATE the applicant was arrested and further criminal proceedings were opened against him relating to a series of burglaries committed DATE and DATE . The applicant and his accomplices were suspected of having broken into shops or restaurants , where they stole cash and goods . On DATE ORG remanded him in custody .

On DATE ORG convicted the applicant of CARDINAL counts of partially completed and partially attempted aggravated burglary and sentenced him to CARDINAL months’ imprisonment . When fixing the sentence the court noted the applicant ’s confession as a mitigating circumstance , the number of offences committed as well as the rapid relapse into crime after the last conviction as aggravating circumstances . It also observed that the applicant , though still living with his parents had completely elapsed their educational influence , had repeatedly been absent from home , and had dropped out of school . It also noted that the applicant had failed to comply with the instruction to undergo drug withdrawal treatment . Consequently , the suspension of the prison term imposed by the judgment of DATE was revoked .

Following ORG judgment , the applicant served his prison term until DATE . He did not benefit from early release .

Meanwhile , on DATE ORG ) , relying on LAW ( PERSON DATE ) , imposed a CARDINAL years’ residence prohibition on the applicant . Having regard to the applicant ’s convictions , it found that his PERSON further stay in GPE was contrary to the public interest . Considering the applicant ’s relapse into crime after his first conviction , the public interest in the prevention of disorder and crime outweighed the applicant ’s interest in staying in GPE .

The applicant , assisted by counsel , appealed . He submitted that the residence prohibition violated his rights under LAW as he was a minor who had come to GPE at DATE , his entire family lived in GPE and he had no relatives in GPE . He also referred to LAW ( CARDINAL ) of LAW , pursuant to which a residence prohibition may not be issued against an alien who has been lawfully residing in GPE from DATE .

By decision of DATE ORG ) dismissed the appeal . It confirmed ORG finding .

On DATE the applicant filed complaints both with ORG ( Verwaltungsgerichtshof ) and ORG ) . He stressed that he had come to GPE at DATE , had attended school in GPE and was not able to speak NORP . He had no relatives and other social contacts in GPE . Moreover , he drew attention to the fact that he was still a minor .

On DATE ORG dismissed the complaint and found that the residence prohibition was justified under LAW . It considered that the applicant had come to GPE only at DATE , whereas DATE according to its constant case - law – Section CARDINAL § CARDINAL ( CARDINAL ) only excluded a residence prohibition for aliens who had been legally resident from DATE at the latest . Considering the gravity and the number of offences committed by the applicant , the fact that the first conviction was rapidly followed by a second one and the severity of the penalties imposed , it found that the residence prohibition did not constitute a disproportionate interference with the applicant ’s rights under LAW , despite his lengthy residence and family ties in GPE .

On DATE the Constitutional Court declined to deal with the complaint for lack of prospects of success .

On DATE ORG requested the applicant to leave GPE .

On DATE ORG ordered the applicant ’s detention with a view to his expulsion . He was arrested on DATE .

On DATE the applicant was deported to GPE .


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

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

PERSON The facts of the case

During the Second World War the applicant and her mother lived near FAC . The applicant ’s mother was of NORP origin . Before the war she did not have any citizenship . Later on , during the war , she obtained NORP citizenship and was put on the “ NORP ” .

In DATE the applicant and her mother were arrested and detained in prison in GPE . While detained , the applicant worked with other prisoners , clearing the streets of GPE of rubble . When the applicant was released in DATE , she was informed that her mother had died during her detention .

On DATE the applicant requested ORG to institute criminal proceedings concerning her and her mother ’s detention in DATE . Apparently , on DATE the PERSON regional branch of the ORG questioned the applicant in respect of the circumstances of her and her mother ’s detention and her mother ’s death .

In a letter to the applicant dated DATE the commission stated that the acts of the agents of the communist regime towards her and her mother were indeed deplorable . The applicant was requested to accept sincere apologies . She was further informed that due to prescription it was now impossible to institute criminal proceedings in order to identify persons responsible for these acts . However , legislative amendments were under way such as to allow the victims of the communist persecution to seek moral and pecuniary satisfaction for their sufferings .

On DATE the commission declared that it lacked competence to investigate the applicant ’s case and later on , transmitted it to ORG .

In a letter of CARDINAL DATE the commission informed the applicant that on DATE amendments to LAW had been adopted , according to which certain crimes were not any more subject to prescription . Accordingly , it became possible to investigate the applicant ’s case . However , the commission lacked competence to do so as its task was to investigate cases of war crimes and crimes against humanity . Thus , it was outside its jurisdiction to investigate the individual case of a DATE child detained in a labour camp .

On DATE the documents concerning the applicant and her mother ’s case were submitted , through the office of ORG , to ORG .

In DATE ORG discontinued the investigations of the applicant ’s complaints . It was established that the applicant and her mother , who was of NORP origin , had during the war been put on the so - called “ NORP ” , a list of persons who acknowledged their NORP nationality . In DATE both the applicant ’s mother and the applicant had been arrested . Subsequently they had been transported to GPE , to GPE prison at FAC , and afterwards , after DATE of detention , they were put in another GPE prison , serving also as labour camp , known as “ LOC . Upon her release in DATE the applicant was informed that her mother had died in prison .

The prosecutor went on to state that the authorities responsible for the applicant ’s detention had breached all applicable laws in that none of the provisions in force at that time , concerning punitive and criminal measures in respect of persons who had accepted NORP citizenship during the war or had otherwise collaborated with the occupants , provided for detention or allowed for any other punitive measures to be taken in respect of children DATE . Certain measures set forth by LAW then in force could be applied to persons DATE , whereas the provisions of LAW could only be applied to persons DATE . However , all investigative measures undertaken by the prosecuting authorities in order to identify persons and authorities responsible for the applicant ’s unlawful persecution , had failed . The prosecution authorities had submitted a number of requests concerning the applicant 's imprisonment to : the archives of ORG , the archives of ORG and ORG , ORG in ORG and in GPE , ORG , ORG , and ORG . Despite these efforts , the identity of persons responsible for the decision to put the applicant and her mother in detention could not be established . The applicant ’s name was not to be found in the incomplete archives of ORG or of the so - called LOC in GPE . Therefore the prosecuting authorities , having exhausted all available investigative measures , had to discontinue the proceedings .

By a letter of DATE the office of the ORG informed the applicant that in reply to her query they had requested the Director of ORG of the Minister of ORG to suggest an available legal procedure by way of which she could seek compensation for her unlawful detention in DATE .

In a letter of CARDINAL DATE the ORG informed the applicant , in reply to her complaint about the outcome of the investigations which she had submitted on DATE to the ORG , that the decision to discontinue the investigation was justified . This conclusion was supported by a thorough analysis of the case - file , which in particular did not give any ground for the view that the prosecuting authorities had been acting negligently or superficially . The first - instance prosecutor had found that the offence of unlawful deprivation of liberty had clearly been committed in the applicant ’s case , as shown by documents of the former ORG , found in ORG . The file No . CARDINAL , containing , inter alia , a list of prisoners for DATE , had confirmed that the applicant had been at that time detained in GPE prison at FAC . It was true that the decision of CARDINAL DATE had failed to indicate detailed findings made in respect of the applicant ’s detention and to refer to concrete documentary evidence . However , there was nothing to show that the decision was , on the whole , unjustified . As regards the issue of compensation for the unlawful detention , the prosecuting authorities had no competence to examine it within the framework of their investigations .

In a further letter of DATE the ORG informed the applicant , in reply to her query about the possibility to obtain , under existing laws , compensation for her detention in DATE , that , regrettably , the laws in force did not offer any prospects of success . Persons seeking compensation for unlawful detention could submit their claims either under LAW of LAW of DATE , or under the provisions of the Civil Code governing liability in tort . However , in the applicant ’s case all substantive and procedural time - limits for lodging of such claims had expired long before .

The applicant twice , by letters of DATE and CARDINAL DATE , disagreed with the opinion expressed in the letter of CARDINAL DATE . In reply , ORG confirmed his position in the letter of CARDINAL DATE .

In a letter of CARDINAL DATE ORG informed the applicant , in reply to her complaint about the decision to discontinue the investigations , that her complaints were unfounded . The contested decision and the following letters of ORG contained detailed arguments in support of the decision to discontinue the investigations .

B. Relevant domestic law

LAW of DATE provided in LAW for compensation regarding damages arising out of obviously unjustified detention on remand and for arrest and detention up to TIME . ORG in whose region the detained person had been released was competent to examine whether the conditions for awarding compensation were met . The decision of ORG could be appealed to ORG .

inter alia , the decision of ORG no . PERSON CARDINAL/CARDINAL , CARDINAL , published in ORG CARDINAL/CARDINAL - CARDINAL/CARDINAL ) .

LAW of LAW , which entered into force on DATE , provides for a request for compensation for , inter alia , unjustified detention . Article CARDINAL § CARDINAL of the Code is currently an equivalent of Article QUANTITY of the Code of DATE .


Violation of Article 14+5 - Prohibition of discrimination (Article 14 - Discrimination) (Article 5 - Right to liberty and security;Article 5-1 - Lawful arrest or detention);Non-pecuniary damage - award;Pecuniary damage - claim dismissed

André Potocki;Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Mark Villiger

The applicant was born in DATE . When lodging his application , he was detained in FAC ( GPE ) . He is currently detained in Grad PERSON ( GPE ) .

The applicant entered GPE in DATE . He has been convicted CARDINAL times since DATE , notably of theft and burglary . In particular , on DATE the ORG convicted him of CARDINAL counts of joint theft as a member of a gang and sentenced him to CARDINAL GPE imprisonment . On DATE the GPE ORG convicted the applicant of CARDINAL counts of burglary and CARDINAL count of attempted burglary and sentenced him to DATE imprisonment . On DATE the GPE ORG convicted the applicant of joint attempted burglary , committed DATE after his release from prison , and sentenced him to DATE and CARDINAL months’ imprisonment .

On DATE the applicant was arrested and remanded in detention .

On DATE the GPE ORG convicted the applicant of CARDINAL counts of burglary and attempted burglary , committed DATE after his release from prison , and sentenced him to DATE and CARDINAL months’ imprisonment . It found that by breaking into different shops , the applicant had stolen goods worth CARDINAL ORG ( MONEY ) . It further ordered the applicant ’s preventive detention pursuant to LAW ( see paragraphs CARDINAL below ) . Having regard to an expert report , the court found that the applicant had a propensity to commit offences by which serious economic damage was caused and was therefore dangerous to the public .

By a decision of DATE , supplemented on DATE , the city of GPE ordered the applicant ’s expulsion to GPE and prohibited him to re - enter GPE for an indefinite duration in view of his criminal convictions . It authorised the applicant ’s expulsion directly from prison as soon as he had served his sentence . The expulsion order became final on DATE , the regional government of GPE having dismissed the applicant ’s appeal on DATE .

In the plan governing the execution of the applicant ’s sentence , drawn up by FAC authorities and presented to the applicant on DATE , it is noted that the applicant ’s transfer to a social therapeutic institution , relaxations in the conditions of his detention and preparations for his release were not envisaged as the city of GPE had issued a deportation order against him .

On DATE FAC authorities informed the applicant , who was at that time detained in FAC , that it was not possible to transfer him to GPE in order to enable him to participate in a social therapy because he was liable to be expelled after having served his prison sentence .

The applicant served his full prison sentence until DATE . Since then , he was remanded in preventive detention .

On DATE ORG , in review proceedings pursuant to LAW ( see paragraph MONEY below ) , decided that the execution of the applicant ’s preventive detention was still necessary in view of its objective .

On DATE ORG , allowing the applicant ’s appeal , quashed the decision of CARDINAL DATE and remitted the case to ORG . It found that ORG had not been entitled to authorise CARDINAL of its judges to hear the applicant alone instead of hearing him in its full composition without giving reasons for doing so . Moreover , the refusal of FAC authorities to allow the applicant ’s defence counsel to inspect his personal files had violated the right to a fair trial .

The applicant ’s counsel was subsequently granted access to the applicant ’s personal files at FAC .

On DATE ORG , having heard the applicant on DATE and the applicant and the CARDINAL experts PERSON and NORP on DATE , again decided that the execution of the applicant ’s preventive detention was necessary in view of its objective ( Article CARDINAL § CARDINAL of LAW ) . It therefore refused to suspend the execution of the applicant ’s preventive detention and to grant probation .

Having regard to the report submitted by the expert for forensic psychiatry PERSON , ORG found that it was very likely that the applicant would reoffend if released . He had been convicted of burglary on numerous occasions and had reoffended shortly after having served long prison sentences . As confirmed by a report submitted by ORG authorities dated DATE and by the applicant ’s statements at the hearing , the applicant continuously refused critically to reflect on his offences and felt persecuted and wrongfully convicted by the NORP courts .

ORG considered that there were also no other elements indicating that the applicant was no longer inclined to reoffend . It noted that according to expert PERSON , it was advisable for the applicant to participate in a social therapy . It conceded that the applicant had not been admitted to a social therapy in FAC he had applied for in DATE . The conditions of his detention had also not been relaxed ( Vollzugslockerungen ) . Both of these measures were important conditions for arriving at a prognosis that he was no longer dangerous to the public . However , this did not alter the fact that the applicant kept posing a risk to the public .

According to ORG , the applicant ’s preventive detention was also not disproportionate . As the applicant was not a NORP national it was unlikely that the prison authorities , having regard to the usual practice , would relax his conditions of detention . He had further been refused a social therapy in view of his imminent expulsion . The court considered that it was illegal to retain a convicted person in preventive detention for an indefinite period of time only as a consequence of his foreign nationality and the resulting refusal of relaxed conditions of imprisonment . ORG would have to consider this issue when deciding on a fresh motion lodged by the applicant to suspend his preventive detention pursuant to LAW ( see paragraph CARDINAL below ) . Otherwise , a suspension of the preventive detention order against the applicant on probation could have to be ordered in the future for reasons of proportionality even without the conditions of his detention having previously been relaxed .

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

Endorsing the reasons given by ORG , ORG found that the applicant was still dangerous to the public . He had also proved obstinate in prison and had to be punished CARDINAL times in DATE for having insulted the prison staff . Due to the fact that the applicant , as confirmed by expert PERSON , refused to take responsibility for his past offences , there were no suitable measures to prepare the applicant adequately for his release . As the applicant was in preventive detention only since DATE , the execution of this measure was still proportionate .

On DATE the applicant , represented by counsel , lodged a constitutional complaint with ORG . He notably argued that his right to freedom as guaranteed by LAW of LAW was violated because his preventive detention was disproportionate . Moreover , he claimed that the refusal to admit him to a social therapy due to his imminent expulsion discriminated him because of his NORP nationality and therefore disregarded his right to equality under LAW .

On DATE ORG refused to admit the applicant ’s constitutional complaint and to grant him legal aid ( no . CARDINAL BvR CARDINAL/CARDINAL ) . It found that his complaint had no prospects of success . There was nothing to indicate that the criminal courts , in reaching their decision under LAW , notably in finding that the applicant was still dangerous , had failed duly to consider human dignity and the right to freedom as guaranteed by LAW .

The Federal Constitutional Court confirmed that measures relaxing the conditions of detention were a decisive factor for the prognosis of a convicted person ’s dangerousness . However , the applicant neither claimed to have applied for such measures in the course of his preventive detention nor to have been unlawfully refused such measures . The decisions of the criminal courts were also not based on the fact that until then , no such measures had been granted . As regards therapeutic measures , the criminal courts had rightly pointed out that due to the applicant ’s persistent refusal to accept responsibility for his offences there were no suitable measures to prepare him adequately for his release .

On DATE LOC dismissed the applicant ’s request for measures relaxing the conditions of his preventive detention , notably leave under escort for DATE under the supervision of CARDINAL prison officers . It argued that he might abscond on that occasion . The applicant ’s appeal on points of law against this decision to ORG was to no avail . On DATE FAC authorities dismissed another request made by the applicant to relax his conditions of preventive detention on the same grounds .

On DATE FAC again declared not to consent to a transfer of the applicant from ORG to it in order to admit the applicant to a social therapy . It argued that it was not in a position to prepare the applicant , who was liable to be expelled , for a life without offences in GPE . The living conditions in that country were not known to the therapists . On DATE the NORP - ORG dismissed as inadmissible the applicant ’s request to declare that refusal unlawful . It found that it were FAC authorities which were competent to decide on the applicant ’s transfer to a different prison .

On DATE ORG , reviewing the necessity of the applicant ’s preventive detention under Articles CARDINALd DATE of LAW ( see paragraphs DATE below ) , refused to suspend the execution of the applicant ’s preventive detention order on probation . Having regard to the report of psychiatric expert A. it had consulted , it found that there was still a risk that the applicant would commit further serious offences against the property of others ( but no violent offences ) if released .

ORG considered that the applicant ’s continued preventive detention was still proportionate . It conceded that it was problematic that no measures at all were planned by the prison authorities to further the applicant ’s reintegration into society . Moreover , owing to , in particular , his foreign nationality , the applicant could not expect any relaxations in the conditions of his detention . In practice , the latter were a precondition for coming to an assessment that a detainee was no longer dangerous to the public . Therefore , the court would have to decide at the next periodic review of the applicant ’s preventive detention whether the applicant was to be released for reasons of proportionality , despite the fact that he had not previously been granted relaxations in the conditions of his detention and had not been considered as no longer posing a threat to the public .

On DATE ORG , endorsing the reasons given by ORG , dismissed the applicant ’s appeal . It noted , in particular , that expert PERSON had considered that there was no starting point for beginning with measures preparing the applicant ’s conditional release . As he contested having committed the property offences he had been found guilt of , he could not critically reflect on his criminal behaviour . Therefore , relaxations in the conditions of the applicant ’s detention , which were very important to arrive at a prognosis that a person was no longer dangerous to the public , had not been refused without good cause .

On DATE the GPE ORG dismissed the applicant ’s request to suspend the execution of his preventive detention in view of his imminent expulsion under LAW . On DATE ORG dismissed the applicant ’s appeal .

On DATE ORG dismissed the applicant ’s request for judicial review . Endorsing the reasons given by the prosecution authorities , it found that there was still a risk that the applicant reoffended and that he was still was not conscious of his guilt . In these circumstances , a therapeutic treatment was without prospects of success .

On DATE ORG declined to consider the applicant ’s constitutional complaint ( file no . DATE ) . It found that the decision of ORG to consider as lawful the prosecution ’s balancing between the public interest in the continuation of the applicant ’s preventive detention and the applicant ’s interest in his personal liberty had – at least at that time – not been unconstitutional .

On DATE the GPE ORG dismissed another request made by the applicant to suspend the execution of his preventive detention under Article CARDINAL of LAW on the same grounds .

The applicant ’s appeals were to no avail . In its decision of CARDINAL DATE ORG noted , in particular , that it might appear contradictory to the applicant that measures aiming at his reintegration into society , such as a social therapy , were refused to him because of the deportation order against him , but that the authorities nevertheless refused to suspend the execution of his preventive detention under LAW . However , the refusal of the said measures alone did not mean that the prosecution authorities could only exercise their discretion in a lawful manner by granting his request under the said provision .

On DATE ORG decided to suspend the execution of the applicant ’s preventive detention at the date of his expulsion to GPE , and on DATE at the earliest , under LAW .

On DATE the applicant was expelled to GPE in accordance with the deportation order issued by the city of GPE on DATE .

On DATE ORG ( GPE ) convicted the applicant of CARDINAL counts of murder , CARDINAL count of attempted murder and robbery with firearms , committed on DATE in GPE and sentenced him to life imprisonment . The judgment was upheld on appeal . The applicant was subsequently transferred to GPE in order to serve his sentence .

A comprehensive summary of the provisions of LAW and of LAW governing the distinction between penalties and measures of correction and prevention , in particular preventive detention , and the making , review and execution in practice of preventive detention orders , is contained in the ORG ’s judgment in the case of PERSON GPE ( no . CARDINAL , § § DATE , CARDINAL DATE ) . The provisions referred to in the present case provide as follows :

NORP The sentencing court may , at the time of the offender ’s conviction , order his preventive detention ( a so - called measure of correction and prevention ) under certain circumstances in addition to his prison sentence ( a penalty ) , if the offender has been shown to be a danger to the public ( LAW ) .

In particular , the sentencing court orders preventive detention in addition to the penalty if someone is sentenced for an intentional offence to CARDINAL years’ imprisonment and if the following further conditions are satisfied . Firstly , the perpetrator must have been sentenced twice already , to DATE imprisonment in each case , for intentional offences committed prior to the new offence . Secondly , the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for DATE . Thirdly , a comprehensive assessment of the perpetrator and his acts must reveal that , owing to his propensity to commit serious offences , notably those which seriously harm their victims physically or mentally or which cause serious economic damage , the perpetrator presents a danger to the general public ( see LAW , in its version in force at the relevant time ) .

Article CARDINALc of the Criminal Code governs orders for the preventive detention of convicted persons which are not executed immediately after the judgment ordering them becomes final . Paragraph CARDINAL of the LAW provides that if a term of imprisonment is executed prior to a simultaneously ordered placement in preventive detention , the court responsible for the execution of sentences ( that is , a special ORG composed of CARDINAL professional judges , see sections ORG and DATE ( CARDINAL)(CARDINAL ) of LAW ) must review , before completion of the prison term , whether the person ’s preventive detention is still necessary in view of its objective . If that is not the case , it suspends the execution of the preventive detention order and places the person on probation with supervision of their conduct which commences with the suspension .

Article CARDINAL of the Criminal Code governs the duration of preventive detention . Paragraph CARDINAL , first sentence , of that LAW , in its version in force at the relevant time , provides that if there is no provision for a maximum duration or if the time - limit has not yet expired , the court shall suspend on probation the further execution of the detention order as soon as it is to be expected that the person concerned will not commit any further unlawful acts on his release .

Pursuant to LAW , the court ( that is , the chamber responsible for the execution of sentences ) may review at any time whether the further execution of the preventive detention order should be suspended and a measure of probation applied . It is obliged to do so within fixed time - limits ( paragraph CARDINAL of Article CARDINAL ) . For persons in preventive detention , this time - limit is DATE ( paragraph CARDINAL of Article CARDINAL ) .

Pursuant to Article CARDINALa § CARDINAL of the Code of Criminal Procedure , ORG may dispense with the execution of a prison sentence or a measure of correction and prevention if the convicted person is expelled from NORP territory . The execution of the sentence or measure may be continued if the expelled person returns to GPE territory ( Article CARDINAL § CARDINAL of LAW ) .

Section CARDINAL § CARDINAL of the Execution of Sentences Act provides that prisoners may be transferred to a socio - therapeutic institution with their consent if the special therapeutic measures and social aids of the institution are advisable for their rehabilitation . The transfer is conditional upon the consent of the head of the socio - therapeutic institution concerned .

Under LAW § CARDINAL of LAW , the conditions of detention may be relaxed by making an order permitting the prisoner to perform regular work outside prison either under the supervision of a member of the prison staff ( outside work ) or without such supervision ( work release ) . The prisoner may further be permitted to leave the prison for a certain time during DATE either under the supervision of the prison staff ( short leave under escort ) or without such supervision ( short leave ) . Under LAW of LAW , these measures may only be ordered with the prisoner ’s consent and if there is no risk that the prisoner might seek to abscond or commit offences during the relaxation of the conditions of his detention .

Under section CARDINAL § CARDINAL ( c ) of ORG relating to LAW , which seek to ensure the uniform application of the law by the authorities , external work , work release and short leave may , as a rule , not be permitted to prisoners against whom a final expulsion order is in force and who are to be deported directly from prison . Exceptions may be granted in agreement with the competent GPE authority . Short leave under escort may be authorised .

DATE . On CARDINAL DATE ORG delivered a leading judgment concerning the retrospective prolongation of the ORG preventive detention beyond the former DATE maximum period and also concerning the retrospective order for the ORG preventive detention ( file nos . CARDINAL BvR CARDINAL/CARDINAL , CARDINAL BvR CARDINAL/CARDINAL , CARDINAL BvR CARDINAL/CARDINAL , CARDINAL BvR CARDINAL/CARDINAL and CARDINAL BvR CARDINAL/CARDINAL ) . Reversing its previous position , ORG held that all provisions on the retrospective prolongation of preventive detention and on the retrospective ordering of such detention were incompatible with LAW as they failed to comply with the constitutional protection of legitimate expectations guaranteed in a ORG governed by the rule of law , read in conjunction with the constitutional right to liberty .

The Federal Constitutional Court further held that all the relevant provisions of LAW on the imposition and duration of preventive detention were incompatible with the fundamental right to liberty of persons in preventive detention . It found that those provisions did not satisfy the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment ( PERSON ) . These provisions included , in particular , LAW in its version in force since DATE .

ORG ordered that all provisions declared incompatible with LAW remained applicable until the entry into force of new legislation and until DATE at the latest . The provisions on the imposition and duration of preventive detention which did not concern the retrospective ordering or prolongation of preventive detention could only continue to be applied in the transitional period subject to a strict review of proportionality . As a general rule , proportionality was only observed where there was a danger of the person concerned committing serious violent crimes or sexual offences if released .

In its reasoning , ORG relied on the interpretation of LAW made by ORG in its judgment in the case of PERSON GPE ( cited above ; see § § CARDINAL ss . of ORG judgment ) . It stressed , in particular , that the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment and the principles laid down in LAW required an individualised and intensified offer of therapy and care to the persons concerned . In line with the ORG ’s findings in the case of PERSON GPE ( cited above , § CARDINAL ) , it was necessary to provide a high level of care by a team of multi - disciplinary staff and to offer the detainees an individualised therapy if the standard therapies available in the institution did not have prospects of success ( see § CARDINAL of ORG judgment ) .


The applicants are NORP citizens living in various parts of GPE . They are represented before the ORG by PERSON and PERSON , lawyers practising in GPE ( GPE ) .

A.

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

In the Socialist Federal Republic of Yugoslavia , i.e. until the independence of GPE , the applicants had specially protected tenancies on privately - owned flats . These flats have always been privately - owned , i.e. they have never been taken from the ownership of their owners by acts of nationalisation , confiscation or any other form of expropriation . The applicants still occupy those flats .

On DATE , the ORG enacted ORG ( Zakon o prodaji stanova na kojima postoji stanarsko pravo ) and on DATE , LAW ( Zakon o najmu stanova ) . While the first one regulates the sale of publicly - owned flats previously let under a specially protected tenancy , the second regulates the conditions of leasing of privately - owned flats , including those previously let under a specially protected tenancy .

The applicants lodged a constitutional claim with ORG ( Ustavni sud PERSON ) , arguing that certain provisions of LAW and ORG violated the constitutional guarantees of the right to enjoy their possessions , the respect and protection for family life and discriminated against former holders of specially protected tenancies on privately - owned flats .

ORG ruled on DATE , and its decision was published in ORG ( ORG novine ) . The ORG quashed several provisions of LAW and dismissed the request to examine the constitutionality of ORG . As to LAW , the ORG quashed LAW , which obliged an owner of a flat let for an unlimited period of time to provide a lessee with another adequate flat before cancelling the lease , if the owner intended to live in the flat himself or intended to install in the flat his children , parents or his dependants . ORG also quashed LAW , point CARDINAL , which excluded from the right to “ protected rent ” a lessee who had ceased to use the flat during DATE preceding the enactment of the LAW in question . Furthermore , the ORG quashed ORG DATE and CARDINAL § CARDINAL . Article CARDINAL restricted the lessor 's right to terminate the lease of a lessee who does not pay the rent and charges , and is over DATE of age or receiving social security benefits , only to cases where the municipality provides such a lessee with another adequate flat with a right to “ protected rent ” in an amount affordable to the lessee . LAW provided in substance the same as the above - mentioned LAW § CARDINAL .

B. Relevant domestic law before amendments by ORG

The Specially Protected Tenancies ( Sale to Occupier ) Act regulates the conditions of sale of flats let under specially protected tenancies . In general , the LAW entitles the holder of a specially protected tenancy on a publicly - owned flat to purchase it under favourable conditions of sale . However , the LAW excludes from such favourable treatment the holders of specially protected tenancies on most privately - owned flats .

The provisions of the LAW challenged by the applicants before ORG provide as follows .

Article CARDINAL § CARDINAL point QUANTITY provides , inter alia , that the LAW does not concern privately - owned flats let under specially protected tenancies .

Article CARDINAL provides that where the tenant of a publicly - owned flat has not applied to purchase it under LAW , the tenant of any privately - owned flat may lodge a request to buy it . Furthermore , this provision establishes the criteria for priority in the purchase of such flats .

Article CARDINAL regulates the spending of the funds collected through the sale of flats let under specially protected tenancies . It requires PERCENT of such funds to be used , inter alia , to provide flats for the former holders of specially protected tenancies of privately owned - flats , while PERCENT of the funds must be used to help provide flats for families with CARDINAL or more children . If the funds originate from the sale of flats in culturally protected buildings , PERCENT of those funds must be used for the maintenance and reconstruction of such buildings while the rest is to be used according to the above mentioned criteria .

DATE provides that the private owners of rented flats may , within DATE of the LAW 's enactment , sell their flats to the municipality . The municipality is under an obligation to purchase such a flat if the tenant undertakes to repurchase the flat from the municipality . The price of such a flat will be fixed according to the provisions for determining prices of publicly - owned flats let under specially protected tenancies .

LAW in general regulates the legal relationship between lessee and lessor in regard to the lease of flats . It recognises a special category of lessees , those who were previously holders of specially protected tenancies on privately - owned flats . Such a category is , according to the LAW , subject to a number of protections , such as an obligation for the owners to contract a lease for an unlimited period of time , the payment of a so called “ protected rent ” , the amount of which is to be prescribed by the ORG , and strictly limited reasons for termination of the lease . This LAW abolishes the specially protected tenancy as such .

Article CARDINAL § CARDINAL provides that the criteria for establishing the amount of “ protected rent ” are the condition of the flat in question , expenses for maintenance of the building and the lessee 's financial situation .

DATE provides that , by enactment of the LAW in question , specially protected tenancies cease to exist and the former holders of specially protected tenancies become lessees .

DATE provides that the former holder of a specially protected tenancy and the owner of the flat have to take out a lease for an unlimited period of time , and the lessee is entitled to pay the so - called “ protected rent ” , except where the lessee is using a part of the flat for some business - related activity ; or where the lessee is the owner of an inhabitable house or flat ; or where the flat has not been used by the lessee or any members of his family , during DATE preceding the entry into force of LAW , unless the owner had permitted their absence .


CASE OF OLIMPIA-MARIA TEODORESCU v. ROMANIA

Violation of Article 1 of Protocol No. 1 - Protection of property

Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra

The applicant was born in DATE and lived in PERSON .

In DATE , a house and QUANTITY . m of appurtenant land situated in ORG , PERSON no . CARDINAL , the property of the applicant ’s parents , were seized by GPE no . CARDINAL on nationalisation .

On DATE the applicant claimed compensation for the property under PERSON no . LANGUAGE . She states that she has not received any compensation .

On an unknown date the property was divided into several parts . It appears from the documents in the file that the property , made up of CARDINAL constructions and appurtenant land , was divided into CARDINAL apartments and CARDINAL plots of appurtenant land of QUANTITY . m and QUANTITY . m respectively .

On DATE , DATE and DATE , and DATE and DATE the ORG sold the CARDINAL apartments to the then tenants . It appears from the file that the CARDINAL plots of appurtenant land were not made the object of a sale .

On DATE ORG by a final decision allowed the applicant ’s action for annulment of the ORG ’s title to property , acknowledged that the nationalisation of the building and of the QUANTITY . m of land appurtenant to it had been unlawful and ordered restoration in the name of the applicant ’s parents .

On DATE the applicant requested the court to find that the sales by the ORG on DATE and DATE of apartments nos . CARDINAL and CARDINAL respectively , situated on PERSON no . CARDINAL , were null and void . According to the applicant , she did not request the annulment of the sale of the other apartments , considering the action pointless in so far as the constant practice was to dismiss this kind of action .

On DATE and on DATE respectively ORG by final decisions dismissed the CARDINAL actions by the applicant to declare null and void the sales by the ORG . The court considered that the sales had complied with the provisions of PERSON no . NORP and that the former tenants had made the purchase in good faith .

On DATE the applicant made CARDINAL different requests under the PERSON no . CARDINAL governing immovable property wrongfully seized by the ORG , seeking restitution in kind or compensation of the parts of her property situated in GPE , PERSON nos . CARDINAL and DATE and of the appurtenant land .

On DATE the ORG , by CARDINAL decisions , proposed that the applicant be given compensation under PERSON no . DATE . ORG mentioned that the apartments and the land claimed in kind were in the possession of third parties .

So far , she has not received any compensation .

The relevant legal provisions and jurisprudence are described in the judgments ORG v. GPE ( [ ORG ] , no . CARDINAL , § § CARDINAL - CARDINAL , ECHR CARDINALVII ) ; PERSON and Others v. GPE ( no . MONEY , § § DATE , ORG CARDINALVII ) ; ORG v. GPE ( no . CARDINAL , § § CARDINAL - CARDINAL , DATE ) ; and PERSON v. GPE ( no . CARDINAL , § § CARDINAL , DATE .


Angelika Nußberger;Dean Spielmann;Elisabet Fura;Isabelle Berro-Lefèvre;Mark Villiger

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE , GPE .

The applicant is a member of the Verkhovna Rada of GPE ( “ the ARC ” ) ( the representative body of the ARC ) ( “ ORG Крим ” ) and a member of the ORG association “ ORG of the LOC ” .

On DATE in a plenary meeting of PERSON of the ARC the applicant said the following :

“ I am empowered by the voters to inform you that if by DATE , thus by the next session of PERSON , there has been no decision on the legal confirmation of the status of ORG nature reserve area ( GPE бухта ) , the ordinary citizens will themselves put a stop to the unlawful acquisition of land . DATE extremists from the NORP - Kurultai radical group are freely bringing construction materials to ORG , openly and insolently breaching NORP and NORP laws . ”

The Kurultai of Crimean Tatars is a representative body for ORG , which , according to its Rules of Procedure decides on all essential issues of political , economical and cultural life of NORP . The Majlis is an executive body of the GPE . They regularly hold sessions . However , there are no official legal acts which determine the legal status of these bodies . The members of the Majlis are allegedly members of ORG affiliated with the President of GPE ( Decree of the President of GPE of CARDINAL DATE no . CARDINAL ) .

On DATE the journalist PERSON published an article in the PERSON ( “ PERSON ” ) newspaper DATE ‘ An MP threatens ORG ( ‘ Депутат грозит крымским татарам’ ) . The article said the following :

“ As always , representatives of the NORP community of the LOC firmly opposed NORP . O.Radivilov , MP , his usual self , did not fail to mention the LOC with regard to the “ unlawful acquisition of land in FAC ” . In his opinion , despite prohibitions , the Majlis assisted the “ invaders ” in bringing construction materials into the national reserve zone . He threatened that a group of inhabitants of south - east LOC was going to punish the “ offenders ” .

On DATE the ORG newspaper published a letter from the applicant :

“ On DATE PERSON ( issue no . CARDINAL ( CARDINAL ) ) published an editorial by the journalist [ ... ] named ” An MP threatens the Crimean Tatars ” .

In the article it is intentionally falsely stated that allegedly “ as always , representatives of the NORP community of the LOC firmly opposed NORP . O.Rodivilov MP , his usual self , did not fail to mention the LOC with regard to the “ unlawful acquisition of land in FAC ” ... He threatens ... ” ( as follows ) .

This information in the article is intentionally biased , incites inter - ethnic hatred rage and as it references me as a representative of ORG in ORG , it threatens to worsen relations between the CARDINAL largest ethnic groups of GPE .

Besides , the libel was intended to humiliate me as a member of ORG in the eyes of my voters , citizens of various ethnic origins .

These provocative and above all intentionally false articles in the ORG newspaper , which was founded by ORG , systematically disseminated in this DATE publication ( most recently on DATE ) , discredit me as a citizen .

My systematic unreasonable harassment in the pages of PERSON I perceive as an intention on the part of the editors to humiliate me as a citizen of NORP ethnic origin . The aforementioned untrue statements in PERSON serve as a basis for this . [ ... ]

In this respect , in accordance with the law in force , I demand publication of an editorial in the next issue of ORG to correct this statement in full .

I also demand public apologies from the editors , to be published together with my statement . ”

On the same page the newspaper also published an article by the journalist DATE “ Do not step on journalists’ throats , do not knock the pen out of their hands ! ” ( “ Не наступайте на горло журналистам , не вышибайте из рук перо ! ” ) , in which the journalist quoted the applicant ’s speech of CARDINAL DATE and said the following :

“ As a journalist accredited to PERSON of the ACR , I attend all the meetings of the parliamentary sessions , of the presidium , and of the commissions and so on and know about O.Rodivilov ’s speeches first - hand . And whether written reproduction of an oral statement can be called a libel ? According to the author of the letter , my information only reflects what has been said from the high tribune by the member of PERSON of the ARC , O.Rodivilov . And he has absolutely correctly mentioned that such things incited racial hatred .

I quote the record of a special session of the Verkhovna Rada of the ARC of DATE [ ... ]

I believe you would agree with me that these words pronounced from the high tribune , can not only incite “ racial hatred ” , but would simply provoke radical actions by ordinary citizens against ORG .

From the high tribune of the Verkhovna Rada of the ARC and whenever possible PERSON discredits the publicly elected PERSON , legitimised by a decree of President PERSON ( and not banned by acting President PERSON ) as ORG of the Crimean Tatars affiliated with the President of GPE . Therefore , all CARDINAL members of the NORP are members of this ORG . The member of PERSON of the ARC , elected by “ citizens of various ethnic origins ” , “ representative of ORG in ORG , calls the members of ORG extremists from the radical group “ NORP - GPE ” .

So who is it who threatens to worsen the relationships between citizens ?

I quote the record of the meeting of the Verkhovna Rada of the ARC of DATE . Appealing to the DATE documents , he requested “ to bring the group of ORG , into conformity with law . This is an extremist NORP group and there are a lot of documents in this respect in your main office ” .

Not everybody can spend time lodging applications with various bodies as Mr PERSON does , and forcing journalists , instead of [ fulfilling ] their direct duties , to write explanations to various bodies , which already have enough to do . In all likelihood he has his special reasons and I think I know what they are . As they say DATE , he wants to run a “ PR campaign ” before the elections .

“ PERSON is involved in provocations ” , - states the member of PERSON of the ARC O.Rodivilov ” . That was the title of an article in FAC , in which its author accuses several employees of the newspaper [ ... ] of bias and provocation . Besides , the member of ORG O.Rodivilov complained to ORG , to ORG , and to ORG of GPE in the ARC , [ ... ] . And if it takes DATE to provide explanations to CARDINAL of these bodies ( those who worked in the mass media when there was censorship remember those “ nice ” times very well ) , our honourable reader will understand how long it will take to write explanations to all these bodies . You can forget about your work as a journalist , which was probably what the MP wanted . ”

In DATE the applicant instituted civil defamation proceedings in ORG of PERSON against the newspaper PERSON ORG . He stated that in the articles he had been accused of inciting racial hatred and humiliated as a citizen of NORP ethnic origin . The applicant stated that he “ was fighting against the NORP criminal organisation and not against the NORP Tatars ” . He requested it to be published that the statements about him published on DATE and DATE were defamatory . He also claimed CARDINAL NORP hryvnias in compensation for non - pecuniary damage . The applicant later amended his claims and requested publication of a correction .

On DATE the court found in part for the applicant . It held that in his speech of CARDINAL DATE the applicant had requested that a decision be urgently adopted on the legal status of a nature reserve and tried to warn the members of PERSON about the possible consequences of not doing so . Therefore , the court found that the expressions “ An MP threatens the NORP ” and “ He threatened that a group of inhabitants of south - east LOC was going to punish the “ offenders ” were defamatory . The court ordered the newspaper to publish the operative part of its decision . The remainder of the applicant ’s claim was rejected .

On DATE ORG of the ARC quashed this decision and rejected the applicant ’s claims . It found that :

“ When adopting its decision , the court did not take into account that the author ’s expressions : “ An MP threatens the Crimean Tatars ” and “ He threatened that a group of inhabitants of south - east LOC was going to punish the “ offenders ” were value judgments and their veracity was impossible to prove .

The claimant is a public figure .

The panel of judges agrees that the newspapers which quoted the statements of MP PERSON , were more tendentious and harsher interpretations of his speech . They include the author ’s perceptions and her critical evaluation of the claimant ’s sayings . However , when choosing his profession , the applicant left himself exposed to harsh criticism and close scrutiny ; that is the burden that politicians bear in a NORP society .

In such circumstances , the present value judgments are not the reasons for limitation of the defendant ’s rights under LAW and for interference with freedom of speech by the ORG . ”

On DATE ORG of GPE rejected the applicant ’s request for leave to appeal on points of law .

Relevant extracts from the LAW read as follows :

“ ... Everyone is guaranteed judicial protection of the right to correction of unaccurate statements about himself or herself and members of his or her family , and of the right to demand that any type of statement be expunged , and also the right to compensation for pecuniary or non - pecuniary damage inflicted by the collection , storage , use and dissemination of such incorrect statements . ”

“ Everyone is guaranteed the right to freedom of thought and speech , and to the free expression of his or her views and beliefs .

Everyone has the right to freely collect , store , use and disseminate information by oral , written or other means of his or her choice .

The exercise of these rights may be restricted by law in the interests of national security , territorial indivisibility or public order , with the purpose of preventing disturbances or crime , protecting the health of the population , the reputation or rights of other persons , preventing the publication of information received confidentially , or maintaining the authority and impartiality of justice . ”

Relevant extracts from LAW read as follows :

“ CARDINAL . A person shall have the right to compensation for non - pecuniary damage in the event of an infringement of his / her rights .

Non - pecuniary damage may consist of :

CARDINAL ) humiliation and damage to the honour and dignity of a physical person , as well as the professional reputation of a physical or legal person ... [defamation ] ... ”

“ CARDINAL . A physical person whose personality rights are breached as a result of inaccurate statements being disseminated about him or her shall be entitled to a response as well as to a correction of those statements .

NORP The negative information disseminated about a person shall be considered as untruthful unless the person who has disseminated it can prove the opposite .

A person whose rights have been infringed ... shall have the right to a response and the publication of a correction in the same mass media source and in accordance with the procedure established by law .

Correction of untrue statements shall not depend on the actual guilt of the person who disseminated them .

NORP Untrue statements shall be corrected in the same manner as they were disseminated . ”

The relevant extracts from LAW provide as follows :

“ ... Liability for infringement of legislation on information shall be borne by persons responsible for the following infringements :

... dissemination of material that does not correspond to reality or defames the honour and dignity of a person ... ”

“ No one may be held liable for making value judgments .

Value judgments , excluding insults and libel , are statements which do not contain factual data , in particular , criticism , the evaluation of actions , and also statements which can not be said to contain factual data because of the way they are worded , in particular , [ with ] the use of hyperbole , allegory , or satire . Value judgments are not subject to retraction and their truth need not be proved ... ”