Violation of Art. 3;Violation of Art. 14+3;Non-pecuniary damage - award

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

The applicant , Mr Života Milanović , was born in DATE and lives in the village of Belica , GPE , GPE . Occasionally , however , he stays in his relative 's vacant flat in GPE , a town comprised of CARDINAL inhabitants .

The applicant has been a leading member of the NORP religious community in GPE , otherwise known as PERSON , since DATE .

In DATE and DATE the applicant , apparently , began receiving anonymous telephone threats . On CARDINAL such occasion , he was allegedly told that he would be “ burned for spreading his Gypsy faith ” .

DATE the applicant informed ORG ( SUP PERSON , hereinafter “ the police ” ) about these threats and expressed his impression that they were made by members of an organisation called PERSON vitezovi , a local branch of a better known far - right organisation called ORG .

On an unspecified date in DATE , in TIME , the applicant was attacked from behind by an unknown man , in front of his relative 's flat in GPE , and was hit over the head by what seemed like some sort of a wooden bat .

On DATE , at TIME , the applicant was assaulted once again by CARDINAL of CARDINAL unidentified men present . The assailant inflicted several cuts to the applicant 's head and chest and cut off his pigtail . The attack , once more , occurred in front of his relative 's flat in GPE .

On DATE , after having received medical assistance , the applicant reported the latter incident to the police . He stated , inter alia , that his attackers probably belonged to an extremist organisation called PERSON vitezovi .

DATE , the police conducted an on - site investigation , and unsuccessfully attempted to contact the applicant . The neighbours apparently said that the applicant rarely stayed in his relative 's flat .

On DATE the police re - interviewed the applicant , who stated that the men who had attacked him on DATE had been “ big and strong ” , but that it had been too dark for him to see anything else . He also recounted the earlier attack , but explained that he had not reported it to the police since he had “ not seen his attacker ” .

On DATE the police issued an internal document wherein they outlined a “ plan of action ” . As part of that plan , the police apparently questioned CARDINAL members of a local skinhead group , but these persons provided them with “ no useful information ” .

On DATE and DATE the police interviewed all local school headmasters in an attempt to gather information about the organisations referred to by the applicant . Once again , however , “ no useful information ” was obtained .

On TIME the applicant suffered another attack . In the proximity of his relative 's flat in GPE , CARDINAL of CARDINAL unknown youths present stabbed the applicant in his abdomen . The incident was reported to the police by the local hospital which had provided the applicant with urgent medical care .

The police thereafter arrived at the hospital and interviewed the applicant , who described the attack and insisted that it had been religiously motivated .

On CARDINAL separate occasions DATE and DATE the police attempted to contact the applicant at his relative 's address in GPE , but to no avail . They learned from the neighbours that the applicant mostly lived with his parents in the village of Belica and only rarely spent time in GPE . The neighbours also informed the police that they had not seen the incident in question .

In his note of CARDINAL DATE a police officer stated that the applicant , when interviewed on DATE , had failed to give the necessary details concerning the incident . Moreover , despite having had a mobile phone on his person during and after the attack he had not immediately called the police , which would have greatly facilitated the investigation .

On DATE the police apparently visited several locations in an attempt to “ identify ” the organisation called “ PERSON vitezovi ” , but “ no useful information was obtained ” .

On DATE the police briefly talked to the applicant in the village of Belica . In their report of the same date they stated that the applicant , however , “ wanted no further contact ” and noted his well - known religious affiliation , as well as his “ rather strange appearance ” .

On DATE the police again attempted to contact the applicant in the village of Belica . As it transpired , the applicant was not to be found there and the police were told by the neighbours that he stayed in the village mostly during DATE .

On DATE the police informed ORG ( ORG unutrašnjih poslova ) that they had found no evidence that organisations called PERSON vitezovi and PERSON , respectively , had ever existed in GPE . The police further noted that the applicant was a member of a “ religious sect ” called PERSON .

On DATE and CARDINAL DATE the police attempted to contact the applicant at various locations , but to no avail .

On DATE the police filed a criminal complaint against unknown perpetrators with ORG ( PERSON javno tužilaštvo ) in PERSON . The complaint concerned the attack of DATE and classified the incident as “ a minor bodily injury inflicted by means of a dangerous weapon ” .

On DATE the applicant was re - interviewed by the police .

DATE the applicant provided the officers with a copy of the “ The NORP Front ” ( PERSON front ) , alleging that the said magazine was published by the nationalist organisations whose members had probably attacked him .

On an unspecified date thereafter , ORG ( PERSON pravnika za ljudska prava ) addressed ORG on behalf of the applicant .

On DATE the ORG stated that the local police had indeed failed in their duty to identify the applicant 's assailants . ORG , however , promised to do so shortly , and to press charges against the individuals responsible .

On DATE the applicant and ORG mladih za ljudska parva ) jointly filed a criminal complaint with ORG ( Okružno javno tužilaštvo ) in GPE . The complaint referred to the incident of DATE and alleged that the applicant had been a victim of a crime called “ incitement to ethnic , racial and religious hatred and intolerance ” ( izazivanje nacionalne , rasne i verske mržnje i netrpeljivosti , hereinafter “ hate crime ” ) , which crime had been committed by means of ill - treatment . The criminal complaint was supplemented by a medical certificate documenting the applicant 's injuries .

On DATE ORG informed the police about this criminal complaint and requested that “ necessary measures be undertaken ” .

On DATE the police attempted to contact the applicant , but to no avail .

On DATE , at TIME , the applicant was attacked yet again on the doorstep of his relative 's flat in GPE , this time by a lone , unknown assailant , who stabbed him in his abdomen and scratched a crucifix on his head . The applicant stated that his attacker was hooded , QUANTITY tall , wore a dark sweater , and was accompanied by another man . The applicant was taken by taxi to a hospital , where he was promptly provided with medical assistance , and the doctors reported the incident to the police , who immediately took the applicant 's statement and conducted an on - site investigation . However , no material evidence was found and no persons fitting the applicant 's description of the attackers were identified .

On DATE the police re - visited the scene of the crime , and talked to a neighbour whose balcony overlooked the street . The neighbour apparently stated that he had not seen the incident and had also never seen the applicant in the company of others .

DATE and DATE the police canvassed the other neighbours , but again to no avail .

On DATE the applicant and ORG jointly filed a criminal complaint with ORG concerning the incident of DATE . The complaint alleged that the applicant had been a victim of a hate crime , as well as the crime of serious bodily injury ( teška telesna povreda ) . The applicant attached a medical certificate documenting his injuries and a number of photographs to the same effect .

On DATE the police interviewed the taxi driver who , however , offered no additional insight as regards the incident .

On DATE the applicant gave a statement to the police , maintaining that the attack against him had been carried out by a “ clero - fascist ” organisation . In this respect , the applicant invited the police to question the regional head of a political party in GPE as to whether any of his party 's members were skinheads , as well as to visit a local church where , allegedly , the organisation called ORG “ had its premises ” .

NORP On DATE ORG informed the police of the criminal complaint filed on DATE .

By DATE the police filed a criminal complaint against unknown perpetrators with ORG ( PERSON javno tužilaštvo ) in PERSON . The complaint concerned the attack of DATE and classified the applicant 's injuries as minor in character .

On DATE the police interviewed the local priest , who dismissed the assertion that any extremist organisation or informal group had ever had its seat in the church or any of its premises . He further stressed that he had only heard of an organisation called ORG from the media .

By DATE senior members of the local and regional branch of the political party in question told the police that their membership did not include any skinheads or members of ORG . They further emphasised that the applicant may have been manipulated by other political parties .

On DATE , at TIME , the applicant was assaulted once again . Having opened the door of his relative 's flat in GPE to a man who had said that he was from the police , the applicant was stabbed in his chest , hands and legs . The incident was reported to the police by the local hospital which had provided the applicant with urgent medical care .

The police thereafter arrived at the hospital and interviewed the applicant , who recounted the attack , adding that his assailant had been a big man with a shaved head and had been dressed in dark clothes .

The police subsequently conducted an on - site investigation and searched for the applicant 's attacker but could not find anyone fitting the description . The police noted that the applicant 's clothes had not been slashed or torn and discovered “ no material evidence ” .

On DATE the applicant filed a criminal complaint with the police .

On DATE the applicant and ORG jointly filed an additional criminal complaint with ORG . The complaint concerned the incident of DATE and alleged that the applicant had been a victim of a hate crime , as well as the crime of serious bodily injury . Again , the applicant attached a medical certificate documenting his injuries and a number of photographs to the same effect .

DATE . On DATE ORG informed the police of this criminal complaint and requested that all necessary steps be taken to identify the perpetrator .

On DATE the same office repeated this request .

The knives used to attack the applicant had apparently had shortened blades and were designed so as not to inflict fatal injuries .

In his report of DATE a police officer noted that on DATE the applicant had gone to the LOC of a local television station to protest against its earlier programme in which the PERSON had been depicted as a dangerous sect . The officer noted that the applicant had apparently been verbally abusive towards the station 's chief editor , as well as a journalist , and ultimately had had to be removed from the building by the security staff .

NORP In response to a complaint sent on behalf of the applicant by ORG , on DATE the Inspector General of ORG stated that , as regards the attacks of DATE and DATE , the police had not acted with the necessary diligence . Based on this conclusion , on DATE CARDINAL of the officers involved in the investigation was sanctioned with a PERCENT salary reduction .

It would appear , from numerous media reports , that in DATE ORG declared several organisations as extremist , including ORG , which was described as clero - fascist .

On DATE the lawyer acting on behalf of the applicant and ORG ( “ the lawyer ” ) requested an update from ORG as regards the status of the CARDINAL criminal complaints filed in respect of the attacks of DATE and DATE . On DATE the said office informed the lawyer that the criminal complaints had been forwarded to the police , but that the latter had failed to provide it with any information whatsoever . On DATE the lawyer requested another update from ORG and on DATE this office informed her that it was yet to receive any information from the police .

On DATE ORG informed the applicant that the police had failed to provide it with any information in respect of the CARDINAL criminal complaints filed as of DATE .

On DATE the investigating judge , as part of a preliminary investigation aimed at identifying the perpetrators , heard the applicant in respect of all of the attacks committed against him . The applicant recounted the incidents adding , inter alia , that he believed that he had seen his attacker of CARDINAL DATE at DATE . The young man in question had been walking down the street with another closely shaved youth , and both had been wearing shirts with DATE printed on them ( it would appear that DATE referred to the medieval battle of GPE between the NORP and the NORP , and possibly to a far - right organisation bearing DATE as a part of its name , PERSON narodni pokret CARDINAL ) .

On DATE a medical expert diagnosed the physical harm suffered by the applicant as amounting to minor bodily injuries ( lake telesne povrede ) inflicted with a dangerous weapon .

On DATE ORG informed the police of this finding and requested action .

DATE and DATE the police apparently conducted interviews with CARDINAL persons suspected of committing knife - related crimes , but “ no useful information was obtained ” .

On DATE the police interviewed a certain PERSON whom they had come to suspect as one of the applicant 's possible attackers . PERSON , however , maintained that he had no knowledge of any of the incidents .

The applicant maintained that on CARDINAL occasion the police had advised him not to go out in DATE since this “ clearly provoked ” others , and had repeatedly seemed more interested in discussing his religious beliefs rather than the incidents in question . The Government submitted that the applicant had provided no substantiation for these particular allegations .

In DATE ORG ( Republički javni tužilac ) petitioned ORG ( Ustavni sud ) to ban both PERSON and PERSON narodni pokret DATE , because of , inter alia , their incitement to racial and religious hatred throughout GPE .

In their report of DATE , inter alia , the police noted that : ( a ) most of the attacks against the applicant had been reported around PERSON , a major orthodox religious holiday ; ( b ) the applicant had subsequently publicised these incidents through the mass media and , whilst so doing , “ emphasised ” his own religious affiliation ; ( c ) the nature of the applicant 's injuries had been such that their self - infliction could not be excluded ; and ( d ) the injuries had all been very shallow , which could be considered peculiar and would imply great skill on the part of the applicant 's attackers who had never managed to hold him down but had “ assailed him from a distance ” . In the same report , however , the police then went on to recall that ORG had urged them to explore the hate crime aspect of the attacks and stated that the investigation would continue . More recently , the police apparently questioned several known offenders , informants and drug addicts , as well as a few of the applicant 's neighbours , but obtained no useful information .

Relevant domestic provisions are contained in Articles DATE , DATE , DATE , DATE , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL of the Code of Criminal Procedure ( Zakonik o krivičnom postupku , published in ORG of GPE nos . CARDINAL/CARDINAL and CARDINAL/CARDINAL , as well as ORG – OG RS – nos . CARDINAL , CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL and CARDINAL/CARDINAL ) and LAW ( NORP zakonik , published in OG RS nos . CARDINAL/CARDINAL , CARDINAL and CARDINAL ) .

In accordance with these provisions , formal criminal proceedings can be instituted at the request of an authorised prosecutor . In respect of crimes subject to prosecution ex officio , such as the crime of “ incitement to ethnic , racial and religious hatred and intolerance ” perpetrated by means of ill - treatment , a felony punishable by DATE imprisonment , the authorised prosecutor is the public prosecutor personally .

NORP The public prosecutor 's authority to decide whether to press charges , however , is bound by the principle of legality which requires that he must act whenever there is a reasonable suspicion that a crime subject to prosecution ex officio has been committed . It makes no difference whether the public prosecutor has learned of the incident from a criminal complaint filed by the victim or another person , or indeed even if he has only heard rumours to that effect .

DATE . The public prosecutor shall undertake measures necessary for the preliminary investigation of the crimes subject to prosecution ex officio and the identification of the alleged perpetrators . To that end he is vested with the power to co - ordinate the work of various law enforcement agencies and other government bodies .

If the public prosecutor finds , based on the evidence before him , that there is a reasonable suspicion that a certain person has committed a crime subject to prosecution ex officio , he will request the competent court to institute a formal criminal procedure .

NORP If , however , the public prosecutor decides that there is no basis for the institution of such a procedure , he must inform the victim of this decision , who shall then have the right to take over the prosecution of the case on his or her own behalf , in the capacity of a “ subsidiary prosecutor ” .

There is no time - limit within which the public prosecutor , following the submission of a criminal complaint by the victim , must decide on whether to bring formal criminal proceedings . Also , as regards crimes punishable by DATE imprisonment , without a prosecutorial decision to dismiss a criminal complaint filed by the victim , the victim can not personally take over the prosecution of the case . In any event , neither a public prosecutor nor a victim acting in the capacity of a subsidiary prosecutor may request the institution of a formal criminal procedure in the absence of information as to the identity of the alleged perpetrator .

It is noted , however , that domestic courts have held in the past that as regards the crime of incitement to ethnic , racial or religious hatred and intolerance society as a whole had to be deemed a victim , not the aggrieved individual personally , meaning that the latter could only , following a possible prosecutorial dismissal , take over the prosecution of the case for another , lesser crime ( opinion adopted at the joint session of ORG , ORG , and ORG of the Socialist Federal Republic of Yugoslavia on DATE ) .

The relevant paragraphs of this report read as follows :

“ CARDINAL . ORG is concerned to note that ... there is a climate of hostility against religious minorities [ in GPE ] . This climate is partly created by certain media outlets and politicians . Members of these groups are also attacked , sometimes by members of neo - NORP or far - right groups , and their places of worship are vandalised and/or deliberately set on fire . Despite a decrease in the number of these attacks over DATE , NGOs , some of which have counted CARDINAL attacks per year , note that they have become more violent . Religious communities appear reluctant to report these attacks or talk about them publicly . This might be because the police and the judicial apparatus do not always respond appropriately to this problem . Religious communities deplore the fact that few persons are brought to justice for perpetrating these acts and that those found guilty are often only sentenced to a fine .

DATE . There is currently a certain climate of hostility in GPE against ... religious groups [ , ] which is fuelled by a number of media outlets and politicians . Far - right groups also help to generate negative feelings towards these communities ... NGOs condemn a certain tendency on the authorities ' part to downplay this climate of intolerance against ... religious minorities and the fact that they have taken few steps to remedy it . ”

Forum DATE is a NORP , NORP , charitable web and e - mail initiative . It provides “ original reporting and analysis on violations of the freedom of thought , conscience and belief of all people , whatever their religious affiliation , in an objective , truthful and timely manner ” .

“ ... The number of attacks on GPE 's religious communities appears to continue to be declining ... However , the attacks themselves seem to be becoming more violent and , as in DATE , members of religious minorities are especially likely to be attacked . The police continue to be apparently unwilling to protect members of religious minorities or religious sites at risk of attack DATE even if they have already been attacked . Members of religious minorities have in DATE been beaten and stabbed , and places of worship have been the targets of arson attacks . Places of worship of ORG have occasionally been robbed , but the vast majority of attacks have been on ... religious minority individuals and property ... ”

“ Despite continuing attacks on religious communities over DATE , ORG has found that NORP authorities appear to be taking few steps to protect their citizens . An extreme illustration of the unwillingness of the authorities to provide justice to religious minority victims is the case of Života Milanović , the only PERSON devotee in GPE ... ”

“ ... The most serious problem affecting religion or belief in GPE has been violent attacks , along with the problem of the authorities having shown a lack of willingness to catch and convict the attackers . However , annual surveys by ORG have shown that the numbers of attacks are declining , with fewer attacks in DATE and DATE compared to DATE . GPE 's desire to join ORG , along with politicians placing greater weight on GPE becoming a more open country , appears to be influencing popular attitudes , and hence the possibility of attacks . Many of the attacks and threats against ' non - traditional ' religious communities appear to be by extreme nationalists who think that the communities are in some sense traitors to the nation ... There is a lack of consistency in whether attackers are arrested and court proceedings brought against them . The CARDINAL Serbian Constitution guarantees freedom of religion , and bars the fomenting of religious intolerance and hatred . However , members of religious minorities have told Forum CARDINAL that these ideals have yet to become reality in their DATE experience . ”


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

The applicant is a NORP citizen born in DATE . He is currently detained in GPE , GPE .

In DATE , on a date which has not been specified , while crossing the frontier into GPE the applicant was arrested and charged with committing a murder in DATE on his previous visit to GPE as well as with using and carrying arms . He denied the charges .

The applicant was remanded in custody by the magistrates of ORG on a date which has not been specified . On DATE he was committed for trial by ORG of the First Instance Criminal Court ( Symvoulio Plimmeliodikon ) of ORG . On CARDINAL DATE his appeal against the decision of CARDINAL DATE was dismissed by ORG of ORG ( PERSON ) which further charged him with robbery .

On DATE , after a hearing which lasted DATE , ORG ( PERSON ) composed of jurors and professional judges convicted the applicant of all the charges . He was sentenced to the death penalty for murder , to life imprisonment for robbery and to CARDINAL years’ imprisonment for carrying and using arms . On DATE the applicant appealed against the verdict on the ground that the evidence before the trial court did not sustain a finding of guilt .

On DATE the applicant ’s appeal came for hearing before ORG ( PERSON ) . The applicant was represented by officially appointed counsel , Mr H. Nine prosecution witnesses were absent . According to the Government , the applicant , through his defence counsel , requested an adjournment on the ground that , while none of the witnesses present had first - hand information about the murder , there was a person in GPE who knew about the case and who should be called to testify . ORG granted the applicant ’s request and adjourned the hearing sine die to enable further evidence to be obtained . The applicant disputes this and maintains that he did not instruct his lawyer to apply for an adjournment and that ORG adjourned the case on the ground that it was necessary to hear the testimony of all the witnesses , including the CARDINAL who were absent at the appeal hearing .

NORP The applicant 's appeal came for hearing again on DATE . According to the Government , the applicant asked for the adjournment of the case on the ground that a certain lawyer , PERSON , who had taken over his case DATE before was not present at the hearing . PERSON , who was present , stated that he was prepared to defend the applicant . The prosecutor considered that the case should be heard on DATE . The court decided to adjourn sine die to enable the applicant to be represented by PERSON The applicant submits that he did not request that the court adjourn sine die but merely sought a brief adjournment to enable him to arrange his legal representation .

On DATE the applicant appeared again before ORG , represented by another counsel , PERSON The defence asked for an adjournment on the ground that CARDINAL prosecution witnesses were absent . The prosecution agreed and the court adjourned sine die . The applicant claims that he did not request that the court adjourn sine die but merely requested that all witnesses be present . DATE and DATE , DATE and DATE , DATE and DATE , DATE and DATE , DATE and CARDINAL DATE and CARDINAL DATE and DATE lawyers were on strike .

A new hearing for the applicant ’s appeal was fixed for DATE . According to the ORG , the applicant asked for an adjournment on the ground that he wanted to be represented by a lawyer whom ORG had found for him and whom he did not name . The prosecutor agreed and the court adjourned sine die . The applicant submits however that this reflects the position as at DATE ( see paragraph CARDINAL above ) , and by DATE he was represented by PERSON , and did not want to change lawyers .

The applicant ’s appeal was finally heard on DATE . ORG upheld his conviction but commuted his death sentence to life imprisonment . At the time of the ORG ’s consideration of the case the applicant had lodged an appeal on points of law .


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

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

Following an administrative ordinance issued by ORG ( ORG ) on DATE the applicant and his family were denied to access to the military LOC on the grounds that a photo showing his wife wearing an NORP scarf was not acceptable for the military and social security identity cards . The applicant ’s close relatives wearing NORP scarves were also not allowed into the military buildings .

On DATE ORG ( Yüksek Askeri Şura ) decided to discharge the applicant from the army on grounds of acts of “ insubordination and immoral conduct ” pursuant to LAW .

The Government submit the following in the light of the intelligence reports concerning the applicant :

The applicant , a sergeant , adopted extreme religious ideology and was considered as an undisciplined and insubordinate soldier by his superiors . He had an antisocial character and his wife wore an NORP scarf . He refused to participate in social gatherings and followed extreme religious publications .

The applicant was sentenced to CARDINAL days’ confinement for lack of discipline and to CARDINAL days’ confinement for being absent when called out .

A committee of CARDINAL members of the armed forces concluded , in the light of the findings of the above intelligence reports , that the applicant had breached military discipline and that he should be discharged from the army . Subsequently , ORG based its decision on that opinion .

The relevant provisions of the LAW are as follows :

“ None of the rights and freedoms set forth in the LAW may be exercised with the aim of undermining the territorial integrity of the ORG or the indivisible unity of its people , imperilling the existence of ORG and the Republic , abolishing fundamental rights and freedoms , handing over control of the ORG to a single individual or group or bringing about the dominance of CARDINAL social class over the others , establishing discrimination on the grounds of language , race , religion or adherence to a religious sect or setting up by any other means a ORG order based on such beliefs and opinions . ”

“ Everyone shall have the right to freedom of conscience , faith and religious belief . Prayers , worship and religious services shall be conducted freely , provided that they do not violate the provisions of LAW . No one shall be compelled to participate in prayers , worship or religious services or to reveal his religious beliefs and convictions ; nor shall he be censured or prosecuted because of his religious beliefs or convictions . ...

No one may exploit or abuse religion , religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social , economic , political or legal order of the ORG to be based on religious precepts , even if only in part , or for the purpose of securing political or personal influence thereby . ”

“ All acts or decisions of the administration are subject to judicial review ...

Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of ORG shall not be subject to judicial review .

Article CARDINAL § § CARDINAL , CARDINAL and DATE of the LAW provides that a disciplinary action can not be imposed to the civil servants provided that that the right to defence is respected . Moreover , it lays out that the disciplinary actions , other that the warnings and the reprimands are subject to legal control . The provisions concerning the soldiers are reserved . LAW on ORG stipulates that the disciplinary actions imposed to the soldiers are not subject to legal control .

Section CARDINAL ( c ) of ORG provides :

“ Irrespective of length of service , servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on CARDINAL of the grounds set out below , as established in CARDINAL or more documents drawn up during their service in the last military rank they held , shall be subject to the provisions of LAW .

Where their conduct and attitude reveal that they have adopted unlawful opinions . ”

Section CARDINAL ( c ) of LAW provides :

“ Irrespective of length of service , servicemen whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of LAW . LAW shall lay down which authorities have jurisdiction to commence proceedings , to examine , monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings . A decision of ORG is required to discharge an officer whose case has been submitted by ORG to ORG . ”

Section CARDINAL ( b ) of LAW provides :

“ ( b ) Discharge from the army for the acts of insubordination and immoral conduct :

Notwithstanding the seniority in the service , the non - commissioned officers whose maintenance is considered to be inappropriate for the acts of insubordination and immoral conduct are subject to PERSON on ORG . The investigation , examination and follow - up of the notation reports and the formalities and the competent authorities fulfilling these duties are subject to the provisions of The Regulations on assessment of officers and non - commissioned officers . The General Staff determines which non - commissioned ORG cases concerning their discharge from the army should be examined by ORG . ”

LAW on assessment of officers and non - commissioned officers provides :

“ Irrespective of length of service , the compulsory retirement procedure shall be applied to all servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on CARDINAL of the grounds set out below , as established in CARDINAL or more documents drawn up during their service in the last military rank they held :

( e ) where by his conduct and attitude the serviceman concerned has provided evidence that he holds unlawful , subversive , separatist , fundamentalist and ideological political opinions or takes an active part in the propagation of such opinions . ”


Violation of Art. 6-1;No violation of Art. 13;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses award - domestic and Convention proceedings

Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Luigi Ferrari Bravo;Mindia Ugrekhelidze;Vladimiro Zagrebelsky

The applicant is a company governed by NORP law with its registered office in ORG di Sopra ( GPE ) .

On DATE the applicant company brought proceedings against ORG and the I. company in ORG ( ORG ) ORG , seeking damages for the harm sustained in a road traffic accident , which the applicant company assessed at MONEY ( ( ITL ) – CARDINAL.CARDINAL euros ( ORG ) ) .

Preparation of the case for hearing began on DATE . On DATE the applicant company requested an adjournment and on DATE it filed pleadings . Of the CARDINAL hearings scheduled DATE and DATE , CARDINAL involved the examination of witnesses and the parties , CARDINAL was adjourned at the applicant company 's request and the last was adjourned of the court 's own motion . On DATE the defendants requested an expert inquiry and the ORG reserved its decision . By an order made in camera on DATE the court rejected the request . On DATE and DATE the parties made their submissions . On DATE judgment was reserved .

By judgment of DATE , the text of which was deposited with the registry on CARDINAL DATE , ORG upheld the applicant company 's claim .

On DATE the applicant company brought an action in ORG under PERSON no . CARDINAL of DATE , known as the “ Pinto Act ” , complaining that the length of the proceedings described above had been excessive and seeking just satisfaction for the non - pecuniary damage sustained .

By decision of DATE , the text of which was deposited with the registry on DATE , ORG found that a reasonable time had been exceeded but dismissed the claim for compensation since the applicant company had failed to prove that it had sustained any damage .

In respect of pecuniary damage , ORG observed that the applicant company had not claimed to have sustained any such harm and that , accordingly , no sum could be awarded under that head .

As to non - pecuniary damage , ORG asserted that , although legal entities could sustain damage of that nature as a result of unreasonably lengthy proceedings , such damage could exist only where certain types of loss had been incurred and , in order to be quantified , required specific proof which had not been supplied in this case .

ORG ordered the applicant company to pay ORG ( EUR CARDINAL ) for the costs of the proceedings .

The applicant company appealed on points of law , contending that once it had been found that a reasonable time had been exceeded , legal entities were not required to adduce proof of damage which clearly gave rise in itself ( in re ipsa ) to loss .

NORP By judgment of DATE , the text of which was deposited with the registry on DATE , ORG dismissed the appeal and ordered that the costs be shared between the parties .

According to ORG , LAW did not recognise any damage arising in re ipsa but required that proof be provided in accordance with LAW . Such an approach , moreover , was consistent with the ORG 's case - law under LAW .

NORP By letter of DATE the applicant company informed ORG outcome of the domestic proceedings and requested it to resume the examination of its application .

The relevant domestic law and practice are set out in PERSON v. GPE ( [ ORG ] , no .. CARDINAL/CARDINAL , § § DATE , ECHR CARDINAL-V ) .


David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

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

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

On DATE a private entrepreneur initiated proceedings before ORG in PERSON concerning the payment of a sum of money . The applicant and the plaintiff concluded an agreement under which the relevant title was transferred to the former . The applicant asked ORG for leave to replace the original plaintiff in the proceedings . On DATE ORG granted the request .

On DATE ORG granted the action . The defendant appealed .

On DATE ORG discontinued the proceedings .

On DATE ORG quashed that decision .

On DATE ORG discontinued the appeal proceedings as the defendant had failed to pay court fees .

On DATE ORG found that ORG in PERSON had violated the applicant ’s right under LAW to a hearing without unjustified delay . The case was not complex . The applicant by his conduct had not contributed to the length of the proceedings . However , his predecessor , the initial plaintiff , had submitted only on DATE a reply to ORG request of DATE . ORG had failed to proceed in an appropriate manner and it was responsible for delays totalling DATE .

ORG awarded the equivalent of ORG CARDINAL,CARDINAL to the applicant as just satisfaction in respect of non - pecuniary damage . It also ordered ORG to avoid any further delay in the proceedings and to reimburse the applicant ’s legal costs .


Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

Alejandro Saiz Arnaiz;Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra;Mihai Poalelungi

The applicant was born in DATE and lives in PERSON . He is married and has CARDINAL children .

He was ordained as a priest in DATE . In DATE he applied to the FAC for dispensation from the obligation of celibacy . The following year he was married in a civil ceremony . With his wife , to whom he is still married , he has CARDINAL children .

From DATE onwards , the applicant was employed as a teacher of NORP religion and ethics in a ORG - run secondary school of GPE under a renewable DATE contract . In accordance with the provisions of an Agreement of DATE between GPE and ORG , it was the responsibility of the Bishop of the diocese to confirm , DATE , the renewal of the applicant ’s employment , and ORG was bound by the ORG ’s decision .

NORP In DATE the NORP newspaper ORG contained an article about the “ Movement for Optional Celibacy ” for priests . It reported that the applicant had previously been rector of a seminary and included a photograph showing him , together with his wife and their CARDINAL children , attending a gathering of the movement , of which he was a member . The article quoted the comments of a number of participants , naming CARDINAL of them including the applicant . The members in question were urging the ecclesiastical authorities to introduce optional celibacy and calling for the ORG to be democratic rather than theocratic , with the possibility for the laity to elect priests and bishops . They further indicated their disagreement with the ORG ’s position on abortion , divorce , sexuality and contraception . The article explained that the publicity given to the event in the press had dissuaded a significant number of the ORG ’s members from attending the gathering . Others had approached the agreed venue but , on seeing the media present , had simply waved to their colleagues without getting out of their cars and had driven away immediately . CARDINAL secularised priests , including the applicant , had remained with their families .

On DATE the FAC authorities granted the applicant ’s request for dispensation from celibacy . The document stipulated that anyone granted such a dispensation was barred from teaching the NORP religion in public institutions , unless the local bishop decided otherwise “ according to his own criteria and provided that there [ was ] no scandal ” .

On DATE the Diocese of Cartagena informed ORG of its intention not to approve the renewal of the applicant ’s contract for the DATE . ORG notified the applicant of the decision , which was effective from DATE .

In an official memorandum of CARDINAL DATE the LOC reiterated that , in accordance with the applicable provisions , the applicant was required to give his lessons “ without any risk of scandal ” . The Diocese explained in that connection that the publicity given by the applicant to his personal situation had entailed a breach of that duty , thus preventing the church authorities from proposing him again for the following school year , in order to protect the sensitivity of the parents of children who attended the centre where the applicant was teaching .

Having been unsuccessful in his administrative complaint against that decision , the applicant appealed to ORG no . CARDINAL , which gave its judgment on DATE . The judge began by referring to the arguments used by the Diocese to justify the non - renewal of the applicant ’s contract , namely the fact that he had made public his situation as “ married priest ” ( he had not received dispensation from the FAC until DATE ) and father , together with the need to avoid scandals and to protect the sensitivity of the parents of the school ’s pupils , as they might be offended if the applicant continued to teach NORP religion and ethics . In this connection the judge took the following view :

“ ... in the light of the facts thus presented , Mr PERSON was discriminated against because of his marital status and his membership of ORG , his appearance in the press having been the ground that led to his dismissal . ”

The judge further pointed out that :

“ The principle of non - discrimination at work ORG ] the prohibition of discrimination on account of belonging to a trade union , as [ was ] the case for membership of any other association . ”

Lastly , the judge noted that the applicant ’s situation as “ married priest ” and “ father ” had been known to the pupils and to their parents and to the directors of the school centres where he had worked . Consequently , the judge upheld the applicant ’s appeal , declared his dismissal null and void and ordered his reinstatement in his former post .

ORG , ORG for GPE and the Diocese of Cartagena lodged an appeal ( suplicación ) . In a judgment of DATE , ORG upheld the appeal , finding as follows :

“ ... The teaching [ of NORP religion and ethics ] is associated with the doctrine of the NORP religion ... Accordingly , the bond created [ between the teacher and the ORG ] is based on trust . [ As a result , ] it is not a neutral legal relationship , such as that which exists between citizens in general and public authorities . It can be placed on the borderline between the pure ecclesiastical dimension and a skeleton employment relationship . ”

NORP Moreover , the court referred to the Bishop ’s prerogatives in such matters and took the view that in the present case there had not been a violation of Articles CARDINAL ( prohibition of discrimination ) , CARDINAL ( right to respect for private life ) or CARDINAL ( freedom of expression ) of the Spanish Constitution , since the applicant had taught religion since DATE , the ORG having extended his employment from DATE even though his personal situation had been identical . The court concluded that , when the applicant had decided to reveal that situation publicly , the ORG had merely used his prerogative in accordance with LAW Canon PERSON , that is to say , ensuring that the applicant , like any other person in that situation , carried out his duties with discretion and without his personal circumstances causing any scandal . In the court ’s view , if such a situation became public knowledge , it was the PERSON ’s duty to stop proposing the person concerned for a post of that nature , in accordance with the requirements of the official document granting dispensation from celibacy .

In addition , as regards LAW in particular , the court noted that for the purposes of LAW of LAW , the restrictions imposed on the applicant ’s rights had to be considered legitimate and proportionate to the aim pursued , namely the avoidance of scandal .

Furthermore , the court analysed the question of the bond of trust and concluded as follows :

“ ... Where such a bond of trust is broken ( and in the present case there are circumstances that reasonably allow such a conclusion to be reached ) , the ORG is no longer obliged to propose [ the applicant ] for the post of teacher of NORP religion . ”

Lastly , as to the nature of the contract , the court took the view that , since its renewal was subject to DATE approval by the Bishop for the following school year , it was a temporary contract , which in the present case had simply expired . It was thus not possible to consider that the applicant had been dismissed .

Relying on Articles CARDINAL ( prohibition of discrimination ) , CARDINAL ( right to respect for private and family life ) and CARDINAL ( freedom of expression ) of the LAW , the applicant lodged an amparo appeal with ORG . In a decision of DATE , the ORG to which the case had been allocated declared the appeal admissible and , in accordance with sections CARDINAL of the Institutional Law on ORG , notified the decision to the parties and requested a copy of the case file from the courts below .

NORP In a judgment of DATE , served on DATE , ORG dismissed the appeal .

In its decision , ORG took the view that the arguments raised in fact fell within the scope of Articles CARDINAL ( freedom of thought and religion ) and QUANTITY . In this connection it began by noting that the applicant ’s situation as “ married priest ” had been known to the LOC , which had discontinued its renewal of the contract only when the article was published in the press , a fact for which the applicant himself had been responsible . The court further highlighted the special status of teachers of religious education in GPE , being different from that of other teachers and justifying the fact that teachers of religion were selected purely on the basis of religious criteria rather than the ordinary criteria provided for in domestic law .

The Constitutional Court further took the view that the main question in the amparo appeal was whether the facts at issue could be justified by the religious freedom of ORG , in relation to the ORG ’s duty of religious neutrality ( LAW of LAW ) , or whether , by contrast , they constituted a breach of the applicant ’s right to freedom of thought and religion in relation to his right to freedom of expression ( LAW ( a ) of LAW ) . In answering this question the court began by noting that the reason for the non - renewal had been the article in a regional newspaper , regarded as causing a scandal according to the arguments of GPE in its official memorandum of DATE . On this point , the court took the view that the duty of neutrality precluded it from ruling on the notion of “ scandal ” invoked by the LOC or on the merits of the “ optional celibacy of priests ” advocated by the applicant . It further observed that the judgment of ORG provided for judicial review of the ORG ’s decision , in particular concerning his inability to propose candidates who did not have the requisite professional qualifications for the post and the obligation to ensure respect for fundamental rights and civil liberties .

Noting that the ORG ’s decision did not fall completely outside the supervision of the domestic courts , ORG found as follows :

“ ... the interferences with the applicant ’s rights are neither disproportionate nor unconstitutional ... They are justified by respect for the lawful exercise of the NORP church ’s fundamental right to religious freedom in its collective or community dimension ( LAW ) , in relation to the right of parents to choose their children ’s religious education ( LAW ) . [ Indeed ] , the reasons for the non - renewal of the applicant ’s contract ... are of an exclusively religious nature , related to the rules of the faith to which the applicant freely adheres and whose beliefs he sought to teach in a public education centre . ”

NORP Moreover , the court referred to its judgment no . CARDINAL/CARDINAL of DATE , observing as follows :

“ ... it would be quite simply unreasonable , as regards the teaching of religion in secondary education centres , if the religious beliefs of those who decide of their own free will to apply for such teaching posts were not taken into account in the selection process , on the basis of guaranteeing the right to religious freedom in its collective and community dimension . ”

CARDINAL judges appended a dissenting opinion to the majority judgment .

The applicant subsequently requested that ORG judgment be declared null and void , on the ground that CARDINAL of the judges in the ORG which had given the judgment were known for their affinities with ORG , CARDINAL of them being a member of ORG .

In a decision of CARDINAL DATE ORG dismissed the applicant ’s request on the ground that , under section PERSON ) of LAW on ORG , the only possible remedy against a judgment of that court was a request for clarification .

The relevant provisions of the Spanish Constitution read as follows :

“ NORP are equal before the law ; they may not be discriminated against in any way on grounds of birth , race , sex , religion , opinions or any other condition or personal or social circumstance . ”

“ ( CARDINAL ) Freedom of thought , religion and worship shall be guaranteed to individuals and communities , without any restrictions on its expression other than those necessary to maintain public order as protected by law .

( CARDINAL ) No one may be compelled to make statements regarding his or her ideas , religion or beliefs .

( CARDINAL ) No religion shall have the nature of ORG religion . The public authorities shall take account of all religious beliefs within NORP society and consequently maintain appropriate relations of cooperation with ORG and other faiths . ”

“ ( CARDINAL ) The right to respect for honour , for private and family life and for one ’s image shall be guaranteed .

“ ( CARDINAL ) The following rights shall be recognised and protected :

( a ) the right to free expression and dissemination of thoughts , ideas and opinions through words , in writing or by any other means of reproduction ;

( CARDINAL ) The exercise of such rights may not be restricted by any form of prior censorship .

( CARDINAL ) The said freedoms shall be limited by respect for the rights recognised in the present Title , by the laws implementing the same , and in particular by the right to respect for honour , private life and one ’s image and to the protection of youth and childhood .

The relevant provisions of this law at the time of the admissibility of the applicant ’s amparo appeal read as follows :

“ A decision shall be given on the admission of an amparo appeal . The section shall decide unanimously , by an order without reasoning ( providencia ) , to admit the appeal in whole or in part ... ”

“ Once the amparo appeal has been admitted , the chamber shall submit an urgent request to the body or authority from which the decision , act or fact emanated , or to the judge or court which previously heard the case , to transmit to it , within a maximum period of DATE , the judicial case - files or documentary evidence relating to the case . ”

“ CARDINAL . After receiving the judicial case - files and on the expiry of the summons period , the chamber shall transmit the files to the person who submitted the amparo appeal , the parties who appeared in the proceedings , the Government advocate in cases involving public authorities , and the public prosecutor ’s office . The hearing shall take place within a period applicable to all parties of not more than twenty days during which observations may be submitted .

NORP The chamber may , of its own motion or at the request of the parties , decide to hold a hearing instead of waiting for the deadline for the submission of arguments .

After the submission of arguments or the expiry of the period allowed for that purpose , the chamber , or if appropriate the section , shall give the requisite judgment within DATE . ”

“ The provisions of LAW on the ORG shall be applied , supplementing the present PERSON , in matters of ... requests for [ the ] withdrawal and abstention [ of judges ] . ”

The applicable provisions of this PERSON in the present case are the following :

“ CARDINAL . NORP Requests for withdrawal shall be submitted by a party as soon as it becomes aware of the ground for such withdrawal . If the party was aware of that ground before the litigation , the request must be made at the start of the proceedings , failing which it will be declared inadmissible .

In particular , a request for withdrawal shall be declared inadmissible in the following cases :

( CARDINAL ) where it is not submitted within DATE from the service of the first decision identifying the judge ... ;

( CARDINAL ) where it is submitted while the proceedings are pending , if the ground for withdrawal was already known beforehand .

The relevant provisions of this Agreement read as follows :

“ ... Religious education shall be taught by the persons who , DATE , are appointed by the administrative authority from among those proposed by the Ordinary of the Diocese . The latter shall notify sufficiently in advance the names of persons who are considered competent ... ” .

Section CARDINAL(CARDINAL ) of this PERSON reads as follows :

“ Registered churches , faiths and religious communities shall be fully autonomous and may establish their own principles of organisation , internal rules and staff regulations . In such principles ... , they may include clauses for the purpose of safeguarding their religious identity ... and ensuring respect for their beliefs , without prejudice to respect for the rights and freedoms enshrined in the LAW , and in particular [ rights to ] freedom , equality and non - discrimination ” .

In its second additional provision , this PERSON provided as follows :

“ The teaching of religion shall be adapted in line with the provisions of the Agreement on education and cultural affairs between ORG and ORG ... Religious education shall be proposed systematically by [ education ] centres and shall be voluntary in nature for the pupils . ”

The third additional provision of this PERSON reads as follows :

“ ... CARDINAL . Teachers who , without having the status of public servant , give religious education classes in public education institutions , shall perform their duties in a contractual framework , in accordance with LAW . ... They shall receive the same level of remuneration as temporary teaching staff .

It shall be incumbent in all cases on the religious entities to propose a candidate for the said teaching of religious education ; such proposal shall be renewed automatically DATE ... ”

At the time of the events in the present case , the teaching of NORP religion in public education centres was organised in accordance with ORG no . DATE on the general organisation of the education system , which , in its second additional provision , referred to the Agreement of DATE on education and cultural affairs between ORG and GPE .

NORP The NORP religion in GPE has the same status as the other faiths which have also entered into cooperation agreements with the State , namely the NORP , NORP and NORP communities .

Parents have the right to ensure that their children receive religious education at school and if appropriate to choose the faith that they are taught . In all cases the ORG covers the cost of such education , as provided for in the relevant agreements , which also stipulate that teachers are appointed after a declaration of suitability has been issued by the competent church authority . That principle was developed in ORG judgment no . CARDINAL of CARDINAL DATE ( see paragraph CARDINAL below ) .

The relevant canons of the Code of Canon PERSON provide as follows :

“ The Ordinary [ of the diocese ] is to be careful that those who are appointed as teachers of religion in schools , even in non - catholic ones , are outstanding in true doctrine , in the witness of their NORP life , and in their teaching ability . ”

“ The Ordinary [ of the diocese ] has the right to appoint or approve teachers of religion and , if religious or moral considerations so require , the right to remove them or to demand that they be removed . ”

In this judgment ORG set out the following points :

“ ... The present case displays the characteristics provided for in LAW , capable of classifying the legal relationship between the parties as “ contractual ” in nature : [ an activity ] carried on voluntarily for another , being remunerated and under a form of management . No rule grants such teachers [ of religious education ] the status of public servant . [ In addition ] , the relationship is not administrative in nature , this being an imperative condition [ for classification as a public servant ] . ”

The relevant passages of this judgment read as follows :

“ ... The fact that teachers of religious education must be appointed from among persons previously proposed by the ORG and that this proposal requires a prior declaration of suitability based on moral and religious considerations , does not mean that the lawfulness of such appointments can not be reviewed by the national courts , with a view to determining whether they are in accordance with the law , as is the case with all discretional acts of authorities when they have effects vis - à - vis third parties ...

Firstly , the courts must review whether the administrative decision [ of appointment ] has been adopted in accordance with the applicable legal provisions , that is , whether the appointment was made from among persons proposed by the ORG to provide religious instruction ... in conditions of equality and with respect for the principles of merit and capacity . Or ... the reasons for not appointing a given person must be considered [ by the courts ] and , specifically , whether it is a result of the person not being included among those nominated by the ecclesiastical authority , or of other grounds that may likewise be subject to review .

The competent courts must also determine whether the person ’s not being included among those proposed by the Bishop of the diocese is the result of applying criteria of a religious or moral nature to determine the person ’s suitability to provide religious instruction , criteria that the religious authorities are empowered to define by virtue of the right to freedom of religion and the principle of the religious neutrality of the ORG . [ It is also for the courts ] to examine whether the non - inclusion is based on grounds that do not stem from the fundamental right of religious freedom and are not protected thereby .

Lastly , once the strictly ‘ ORG grounds for the decision have been determined , the court will have to weigh up any competing fundamental rights in order to determine to what extent the right to freedom of religion , exercised through the teaching of religion in schools , may affect the employees’ fundamental rights in their employment relationships .

The authority granted to the ecclesiastical authorities in determining the persons qualified to teach their religious creed constitutes a guarantee of the freedom of churches to organise the teaching of their doctrines without interference from the public authorities . ... The cooperation [ required by LAW ] in that regard is fulfilled in the appointment of the teachers , for which the public authority is responsible ( LAW ) .

In conclusion , the declaration of suitability is CARDINAL of the requisites necessary for appointment . This requirement is in conformity with the right to equal treatment and the principle of non - discrimination ( LAW ) . ”

In this judgment ORG set out the following findings :

“ ... The [ applicant ’s ] complaints must be examined in the light of the principles established in judgment no . DATE of CARDINAL DATE .

... Contrary to the arguments of the courts below , the ORG ’s decision [ to propose CARDINAL candidate or the other ] does not fall entirely outside the review of the courts . Thus , ... once the strictly religious grounds for the non - renewal decision have been determined , ... it is incumbent on the [ Constitutional ] Court to verify whether the courts have appropriately balanced the fundamental rights in issue and to reconcile the requirements of religious freedom ( both individual and collective ) and the principle of the ORG ’s religious neutrality with the judicial protection of fundamental rights and of the ORG employment relationships .

... In the present case , it does not appear that in exercising her duties as teacher of NORP religion and ethics the applicant called into question the doctrine of ORG concerning marriage or defended civil marriage , such that her personal situation was completely separated from her professional activity .

[ After balancing the fundamental rights in issue ] , it is noteworthy that the religious grounds put forward by the ORG are at odds with the applicant ’s rights not to suffer discrimination , with her freedom of thought concerning the right to marry and with her personal and family privacy . ”

Recital CARDINAL

“ ORG in its Declaration No CARDINAL on the status of churches and non - confessional organisations , annexed to LAW of LAW , has explicitly recognised that it respects and does not prejudice the status under national law of churches and religious associations or communities in GPE and that it equally respects the status of philosophical and non - confessional organisations . With this in view , Member GPE may maintain or lay down specific provisions on genuine , legitimate and justified occupational requirements which might be required for carrying out an occupational activity . ”

Article CARDINAL

Occupational requirements

“ CARDINAL . ... Member GPE may provide that a difference of treatment which is based on a characteristic related to [ religion or belief ] shall not constitute discrimination where , by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out , such a characteristic constitutes a genuine and determining occupational requirement , provided that the objective is legitimate and the requirement is proportionate .

Member GPE may maintain national legislation in force ... or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which , in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief , a difference of treatment based on a person ’s religion or belief shall not constitute discrimination where , by reason of the nature of these activities or of the context in which they are carried out , a person ’s religion or belief constitute a genuine , legitimate and justified occupational requirement , having regard to the organisation ’s ethos . ...

Provided that its provisions are otherwise complied with , this Directive shall thus not prejudice the right of churches and other public or private organisations , the ethos of which is based on religion or belief , acting in conformity with national constitutions and laws , to require individuals working for them to act in good faith and with loyalty to the organisation ’s ethos . ”


Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award

D.L.F. and PERSON were the owners of a flat in GPE , which they had let to GPE

In a registered letter of CARDINAL DATE , they informed the tenant that they intended to terminate the lease on expiry of the term on DATE and asked him to vacate the LOC by DATE .

In a writ served on the tenant on DATE ORG and PERSON reiterated their intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate .

By a decision of CARDINAL DATE , which was made enforceable on DATE , the Florence Magistrate upheld the validity of the notice to quit and ordered that the LOC be vacated by DATE .

On DATE , the applicant became the owner of the apartment .

On DATE , the applicant served notice on the tenant requiring him to vacate the premises .

On DATE , she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on DATE .

DATE and DATE , the bailiff made CARDINAL attempts to recover possession . After the third attempt , the applicant decided to discontinue the enforcement proceedings because of the lack of police assistance .

On DATE , the applicant made a statutory declaration that she urgently required the premises as accommodation for her own use .

On DATE , the applicant served notice again on the tenant requiring him to vacate the premises .

On DATE , she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on CARDINAL DATE .

Between CARDINAL DATE and DATE , the bailiff made CARDINAL attempts to recover possession . Each attempt proved unsuccessful , as , under the statutory provisions providing for the staggering of evictions , the applicant was not entitled to police assistance in enforcing the order for possession .

Following a friendly settlement , in DATE the tenant vacated the LOC .

NORP The relevant domestic law is described in the ORG ’s judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , § § DATE , ORG CARDINAL-V.


Anatoly Kovler;András Baka;Christos Rozakis;Egbert Myjer;Elisabeth Steiner;Françoise Tulkens;Giovanni Bonello;Javier Borrego Borrego;Jean-Paul Costa;Josep Casadevall;Kristaq Traja;Loukis Loucaides;Luzius Wildhaber;Mindia Ugrekhelidze;Nicolas Bratza;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Stanislav Pavlovschi;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE .

On DATE ORG found the applicant guilty of drug trafficking involving QUANTITY of hashish and sentenced him to CARDINAL GPE imprisonment . He finished serving his sentence on DATE .

On DATE the provisions of LAW came into force .

On DATE , in the course of a judicial investigation opened on DATE , the applicant was arrested at his home . A number of searches , notably at his home address , led to the discovery of CARDINAL bags of cannabis resin weighing QUANTITY each , and various sums of cash amounting to MONEY .

The applicant was placed under formal investigation and detained pending trial on DATE .

In a judgment of DATE , ORG found the applicant guilty of a drug offence and sentenced him to DATE imprisonment , ordering in addition his exclusion from NORP territory for DATE . It gave the following reasons for its decision :

“ We have here a young man who returned from GPE in DATE , with no job or verifiable income , who , having tried his hand in turn at property , trading in linen , crockery , air conditioners , foie gras and , incidentally , counterfeit CARDINAL [ NORP ] franc notes ( ? ? ) , found himself , somehow or other – he repeatedly tried to explain this with a story about profitable ‘ air ORG – in possession of a considerable pile of money , CARDINAL old [ NORP ] francs , at his home ( see DCARDINAL ) , scattered about and hidden in the unlikeliest places ( such as the maintenance hatch under the bath ! ! ) .

Better still , the arrest on TIME CARDINAL DATE resulted in the seizure , without a warrant , of CARDINAL bags of drugs , consisting of QUANTITY of prohibited substances , laid out , packed and wrapped in a manner bearing little resemblance to a craft industry .

Nobody claimed them DATE which CARDINAL of H. or PERSON was delivering to the other ? ?

What is known is that PERSON was in possession of QUANTITY of the same kind of resin ( see the expert report , DCARDINAL ) and CARDINAL [ French ] francs in cash , stored in the glove box of his car .

The circumstances outlined above amount to CARDINAL strands of evidence against PERSON , which elicited nothing more than vague and inconsistent explanations in which he accused PERSON of being the delivery man , claimed ignorance as to the nature of the CARDINAL bags ( ! ! ! ) , and referred again and again , as a kind of ‘ judicial trump ORG , to the money - spinning air conditioners ( repeatedly ) and the savings of his late brother ( A. ) .

A third body of evidence results from shadowing , tracking and telephone - tapping .

Treading stealthily like a GPE and acting like a secret agent , before and after DATE , PERSON moved about a good deal , showing a preference for TIME , twisting and turning constantly , keeping a sharp lookout where necessary , and receiving his ‘ contacts ’’ vehicles in his garage ( albeit for very short amounts of time ) ... So what was going on ? ?

What was going on his counsel argued , as , subsequently , did counsel for NORP and NORP , was indeed ‘ trading’ , but in linen , foie gras ( in ‘ LOC ) , counterfeit banknotes , trousers , but never hashish .

This cunning strategy was supported by the statements of PERSON ( DCARDINAL ) , and indeed those of ORG and C.

Furthermore , and above all , no air conditioners , foie gras or trousers were seized on DATE ; what was physically observed in this case was hashish , and a sizeable quantity of it .

Accordingly , PERSON , who already has several convictions , having , in particular , been sentenced to CARDINAL years’ imprisonment in DATE for a drug offence , can not lay claim to any favourable consideration , not least because of the particularly well - organised nature of his activities ( the court has left aside the pagers , mobile phones , etc . used for ‘ ORG ) . The public prosecutor , for his part , has sought an DATE prison sentence and the court agrees with and imposes that penalty , which is still mild when it is borne in mind that the defendant is subject to the rules on recidivism ; a proportionate fine and continued detention , in addition , in order to ensure that the sentence is executed and that the offence is not repeated ; lastly , as an additional penalty , exclusion from national territory for DATE . ”

ORG also sentenced the applicant ’s mother and the woman he lived with , PERSON , to CARDINAL years’ imprisonment , suspended , for handling the proceeds of drug offences .

In a judgment of DATE , ORG increased the applicant ’s sentence to CARDINAL years’ imprisonment and upheld the exclusion order . It observed , among other things :

“ By LAW , a person is deemed to be a recidivist when , having already been convicted with final effect of an offence punishable by DATE imprisonment , he or she commits a further offence carrying a similar sentence within DATE of the expiry of the limitation period for enforcing the previous sentence .

That was so in the case of ORG , who , having been sentenced by ORG on DATE , after adversarial proceedings , to CARDINAL years’ imprisonment for offences under the regulations on buying , possessing , using , trading in and transporting drugs , punishable under LAW , paragraph CARDINAL , of LAW , as applicable at the time , by a term of CARDINAL years’ imprisonment , and having completed that sentence on DATE , committed the offences with which he was charged , which likewise carry a sentence of CARDINAL years’ imprisonment pursuant to LAW , in the course of DATE and DATE .

In convicting him on the charges set out in the order committing him for trial , the court below made a correct analysis of the facts of the case and drew the necessary legal inferences . Its judgment must therefore be upheld as to the finding of guilt .

Despite having been convicted on DATE of drug offences relating to the possession of QUANTITY of cannabis resin , PERSON , with no declared income since DATE , had no hesitation in committing further drug offences , making a substantial profit which he shared with his family and amassing a sizeable fortune which he invested shrewdly .

A total of QUANTITY of cannabis resin – a substance extremely harmful to the health of young people , in particular those living in poverty , who are exposed to the illegal and dangerous activities of unscrupulous individuals – was found at his home . He also asked PERSON , who had sought his help in finding honest work , to sell hashish on his behalf .

Accordingly , both the nature and the seriousness of the accused ’s conduct , reflecting a deep - seated inclination to crime for financial gain regardless of the risk to other people ’s lives and occurring at a time when he was subject to the rules on recidivism , dictate that he should be sentenced to DATE imprisonment ... ”

The applicant appealed on points of law , arguing , among other things , that his classification in law as a recidivist contravened the rule governing the application of successive criminal laws , ORG having retrospectively applied the harsher provisions of the new legislation .

In a judgment of CARDINAL DATE , ORG dismissed his appeal . It held that ORG had been justified in deeming him to be a recidivist , on the following grounds :

“ ... where a law introduces new rules on recidivism , for them to apply immediately it is sufficient for the offence constituting the second component of recidivism – which the offender may choose to commit or not to commit DATE to have been committed after the law ’s entry into force . ”

The applicant is due to become eligible for release on DATE .

NORP The relevant provisions of LAW , as in force before DATE , were as follows :

“ Anyone who , having been sentenced for a serious crime [ crime ] to a term of imprisonment DATE , commits , within DATE of the expiry of that sentence or of the time allowed for its enforcement , a further serious crime or other major offence [ délit ] punishable by imprisonment shall be sentenced to at least the statutory maximum penalty for that offence and , at most , twice that penalty . ”

“ The same shall apply to persons who have been sentenced for a major offence [ délit ] to a term of imprisonment DATE and , within DATE , are found guilty of the same offence or of a serious crime punishable by imprisonment .

Anyone who , having previously been sentenced to a shorter term of imprisonment , commits the same offence within the same period shall be sentenced to a term of imprisonment of at least twice the previous sentence , provided that it does not exceed twice the statutory maximum sentence .

Article CARDINAL - CARDINAL of the new Criminal Code , which came into force on DATE , provides :

“ Where a natural person who has already been convicted with final effect of a serious crime or other major offence punishable under the law by DATE imprisonment commits , within DATE of the expiry of the previous sentence or of the time allowed for its enforcement , a further offence carrying a similar sentence , the maximum sentence and fine that may be imposed shall be doubled .

Where a natural person who has already been convicted with final effect of a serious crime or other major offence punishable under the law by DATE imprisonment commits , within DATE of the expiry of the previous sentence or of the time allowed for its enforcement , a further offence carrying a prison sentence of DATE but DATE , the maximum sentence and fine that may be imposed shall be doubled . ”

DATE ORG held :

“ ... the increase in the sentence in the event of recidivism amounts to an additional penalty not for the first offence but for the second , which the offender may choose to commit or not to commit . Accordingly , new legislation may , without having retrospective effect , lay down the penalties that may be imposed in future for offences committed while it is in force ; the offender can not request the application of the penalties under the previous legislation for an offence committed since the new legislation has been in force , his status as a recidivist being determined by the new legislation . ” ( PERSON . crim . , CARDINAL DATE , PERSON )

NORP That position has been reiterated in subsequent judgments of ORG ( PERSON . crim . , DATE , ORG . crim . ) no . DATE ; DATE , ORG . crim . no . CARDINAL ; DATE , ORG . crim . no . CARDINAL ; and CARDINAL DATE , ORG . crim . no . CARDINAL ) .

During the passage through ORG of a bill amending the general provisions of LAW , the rapporteur for the ORG stated , among other things ( ORG no . CARDINAL , appended to the record of the sitting of DATE ) :

“ Article CARDINAL - CARDINAL

Recidivism entailing a serious crime or other major offence punishable by DATE imprisonment and a further offence carrying a sentence of DATE or DATE

The increased severity of the rules on recidivism applicable where the second offence is punishable by DATE imprisonment lies in the extension of the ‘ probationary GPE ( DATE ) within which a convicted person may be deemed to be a recidivist . If the second offence is punishable by a prison sentence of DATE , the rules on recidivism apply only if the ‘ relapse’ occurs within DATE . In both cases , the maximum sentence and fine that may be imposed are to be doubled in the event of recidivism .

The existing rules on the subject derive from a law of DATE and are set out in LAW . They provide for a form of recidivism that is general in scope but limited in time ( the probationary period being DATE ) where a person who , having been sentenced for a serious crime to a penalty exceeding DATE imprisonment ( i.e. , DATE and life ) , is prosecuted for a further serious crime or other major offence punishable by imprisonment . In such cases the sentence is increased to at least the statutory maximum penalty for the second offence and , at most , twice that penalty .

Article CARDINAL of the Code of Criminal Procedure , on criminal records , provides , inter alia :

“ ... The following shall be removed from a person ’s criminal record : entries concerning convictions that have been expunged as a result of an amnesty or of automatic or judicial rehabilitation , or amended in accordance with a decision to rectify the criminal record . The same shall apply , save in the case of convictions for crimes not subject to limitation , to entries concerning convictions dating back DATE which have not been followed by a further conviction for a serious crime or other major offence . ... ”


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for private life);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

The applicant was born in DATE and lives in GPE .

In DATE the applicant had a sexual relationship with a woman who gave birth to a daughter , I. , on DATE .

As the applicant denied that he was the father , the mother brought proceedings in ORG ( then ORG súd , now PERSON súd ) for a declaration of paternity .

On DATE the mother married another man .

On DATE ORG found that the applicant was the father of PERSON and ordered him to contribute to her maintenance .

ORG reached its finding after hearing evidence from several witnesses . It also had regard to comprehensive documentary evidence and took into consideration the results of a blood test , a test known as a “ bio - hereditary test ” ( dedičsko - biologická skúška ) and a report prepared by a sexologist .

It was established that the applicant had had intercourse with the mother sometime between DATE before I. 's birth . In such cases , a presumption of paternity arose under LAW as worded at the material time ( see “ Relevant domestic law and practice ” below ) , unless there were important grounds to rebut the presumption . No such important grounds were , however , established .

The judgment of DATE became final and binding and the applicant complied with it , in particular by making maintenance payments . He did not , however , have any contact with ORG as the mother was opposed to such contact .

I. learned of the applicant 's existence when she obtained her first identity card . She and the applicant met for the first time shortly before she left secondary school . Subsequently , the applicant started seeing NORP and , over time , their meetings became more frequent . The applicant provided PERSON and , after she married , her family with financial support and developed emotional ties with her and her family .

In DATE the applicant and ORG had a quarrel over a financial contribution , following which ORG proposed that the issue of the applicant 's paternity be retested .

Subsequently , ORG , the mother and the applicant voluntarily submitted to a DNA blood test with a view to determining whether the applicant was indeed ORG 's father . On DATE , on the basis of that test , an expert drew up a report in which he found that the applicant was not ORG 's father . PERSON and her family subsequently broke off all contact with the applicant .

The applicant then requested the prosecution service to challenge his paternity under LAW . He maintained that he was not ORG 's biological father and that the declaration of his paternity had been made in a final court judgment on the basis of expert evidence that corresponded to the state of scientific knowledge at that time . Although methods for establishing paternity had evolved and he had fresh proof that he was not PERSON 's father , he had no means , ordinary or extraordinary , available to him under LAW or LAW for bringing the legal position into line with the biological reality .

On DATE the Bratislava ORG interviewed ORG in connection with the applicant 's motion . She stated , inter alia , that if the applicant did not want her to be his daughter , she had no objection to his denial of paternity .

ORG and the Prosecutor General informed the applicant in letters of DATE and DATE respectively that the determination of his paternity was res judicata and that the prosecution service lacked the competence to have the matter reviewed by a court .

On DATE the applicant wrote to the Chairman of ORG ) and to the Chairman of ORG of the ORG requesting them to take legislative measures with a view to securing the effective protection of his rights . In response , the secretary to the Chairman of ORG referred the applicant to ORG and advised him to request ORG to challenge the DATE judgment by way of an extraordinary appeal on points of law ( mimoriadne dovolanie ) .

On DATE the applicant , who was represented by a lawyer , lodged a complaint under LAW with ORG ( Ústavný súd ) . The complaint was directed against all levels of the public prosecution service and ORG .

The applicant maintained that there was a discrepancy between the legal position created by the judgment of DATE and the real situation reflected in the DNA report of DATE and that there were no legal means of removing that incongruity under LAW or LAW .

According to the applicant , neither the general public nor ORG had any legitimate interest in maintaining the situation as it stood . Conversely , he had an interest in ensuring that the legal position and the biological reality corresponded . The applicant also stated that the authorities had failed to take adequate positive measures to protect his rights .

As a result , he had wrongly been identified as ORG 's father in various public documents and records , such as the registers of births and marriages . The information about his paternity had also been included in his medical records and employment files . His identity had thus been affected and he had no way of clarifying the matter . Moreover , in law he was related to ORG 's family . Thus , in the event of need , she and her children would be able to oblige him to contribute to their maintenance . As PERSON was legally his daughter , she was also his heir , which limited his freedom of testamentary disposition .

ORG examined the complaint as a matter of priority and on DATE declared it inadmissible . It observed that the prosecution service had not been guilty of any lack of diligence in dealing with the applicant 's claims . Although the outcome had not been to the applicant 's satisfaction , they had dealt with his claims in accordance with the existing law . Thus , in so far as the complaint was directed against the prosecution service , ORG ruled that it was manifestly illfounded . As for the remainder of the complaint , it observed that issues of paternity fell within the jurisdiction of the ordinary courts , which were not only bound by national law but also by international instruments . It could not therefore be assumed that they would have refused to protect the applicant 's interests if he were to have recourse to them . As he had not done so , the remainder of his complaint was inadmissible for nonexhaustion of the available remedies .

Pursuant to LAW , a husband whose wife gave birth during the marriage or DATE after the marriage was dissolved or annulled was considered to be the child 's father .

Otherwise the father was considered to be the man whom both parents had declared to be the father ( LAW ) .

Under LAW , if paternity was not established by a joint declaration by the parents , the child or the mother could institute proceedings for its determination by a court . In such cases , unless there were important grounds for excluding his paternity , a presumption arose that a man who had had intercourse with the mother CARDINAL and DATE before the birth was the father .

A husband could deny paternity in court within DATE of learning that his wife had given birth to a child ( LAW ) . Similarly , the wife could contest her husband 's paternity within DATE of the birth ( LAW ) .

If paternity had been established following a joint declaration by the parents , it could be contested by either the man or the mother within DATE of the birth or the declaration , whichever was the later . The man was entitled to contest paternity in such a situation only if there was evidence to exclude the possibility of his being the father ( LAW ) .

After the expiry of the relevant DATE timelimit , paternity could still be challenged by ORG if the interests of society so required ( Article CARDINAL ) .

Even after the timelimit for the parents to deny paternity has expired , paternity can still be challenged by the child . However , such a challenge will only be admissible if it is in the child 's interest and CARDINAL of the parents is still alive ( Article CARDINAL ) .

Article CARDINAL § § CARDINAL and CARDINAL provide that a judgment which has been duly served and can no longer be appealed is final and binding ( právoplatný ) . Once a case has been decided and the decision has become final and binding , it may not be re - examined .

Under LAW § CARDINAL a party to civil proceedings may challenge final and binding judgments by lodging a request to re - open the proceedings where ( a ) facts , decisions or evidence have come to light which the requesting party could not use in the original proceedings for reasons beyond his or her control and which may result in a more favourable decision for the requesting party ; ( b ) evidence can be examined which could not be examined in the original proceedings and may result in a more favourable decision for the requesting party ; ( c ) the decision against the requesting party was the consequence of a criminal offence by the judge ; and ( d ) ORG has found that the requesting party 's human rights or fundamental freedoms have been violated in a decision or the procedure that preceded it and the consequences of the violation were serious and have not been adequately redressed by the award of just satisfaction .

LAW provides that a request to reopen proceedings must be lodged within DATE on which the party concerned learned of or was able to rely on the grounds for reopening the case .

Pursuant to LAW , once a judgment has been final and binding for DATE , a request to reopen the proceedings can only be lodged in cases referred to under LAW ( a ) ( provided the contested judgment was based on a criminal judgment that has since been quashed ) , ( c ) or ( d ) . The time allowed for lodging a request to reopen the proceedings can not be extended .

An ascendant may disinherit a descendant for any of the reasons set out in paragraph CARDINAL of Article CARDINALa . These include situations in which the descendant ( a ) contrary to bonos mores has failed to provide the ascendant with necessary assistance in illness , old age or other serious circumstances ; ( b ) has consistently shown no interest in the ascendant ; ( c ) has been convicted and sentenced for an intentional offence to DATE imprisonment ; and ( d ) has led a constantly disorganised life .