Remainder inadmissible;No violation of Art. 8;Violation of Art. 34;Just satisfaction reserved

The first applicant was born in DATE . He is currently serving a prison sentence in GPE . His representatives have had no contact with him since his expulsion . The second applicant was born in DATE and lived in LOC , GPE . She died in DATE .

According to the first applicant , then named PERSON , he arrived in GPE from GPE in DATE . The Government disputed DATE first applicant 's arrival in GPE , pointing to the absence of any documents in connection with it .

On DATE he obtained NORP internal identity papers ( “ the passport ” in question ) .

On DATE the first applicant married the second applicant and took her surname , PERSON . On DATE he obtained a new passport , containing his new name .

In their submissions of DATE and DATE the Government stated that at the relevant time the first applicant had been in a valid marriage concluded in GPE in DATE , from which he had CARDINAL children . They submitted a copy of the certificate of the first applicant 's marriage , issued by ORG of ORG of GPE in DATE .

On DATE a new NORP internal passport was issued to the first applicant , who had reached DATE .

On DATE ORG ( ORG ) , following an internal investigation , established that the first applicant 's passport had been issued in breach of the lawful procedure and declared it invalid . The ORG found that the first applicant had obtained a NORP identity document without having properly obtained NORP nationality and that his name had not been entered in the relevant registers . The first applicant had never applied for , or received NORP nationality and the identity document in question could not be held as proof to the contrary . The head of the police unit which had issued the passport had been subjected to disciplinary measures for breaching the relevant legislation .

NORP In DATE the police , aided by the ORG , seized the applicant 's internal passport . It appears that after that the first applicant remained in GPE without obtaining any other residence documents .

On DATE ORG of LOC found that the archives of the passport service which had issued the first applicant 's passport in DATE had been destroyed in DATE , in line with instructions issued at the time . It concluded that there were no reasons to open a criminal investigation into the actions of the officers of that department .

On DATE the deputy prosecutor of LOC in GPE issued a decision to charge and detain the first applicant for attempted subversion of the constitutional regime . It appears that some time later an international search warrant was issued .

On DATE the head of the police department of LOC in GPE informed his counterpart in GPE that the first applicant was being sought in GPE for a breach of ORG security and asked him to locate the applicant . The same letter indicated the first applicant 's address in ORG and stated that he had unlawfully obtained a NORP passport .

On DATE the applicant was arrested with a view to extradition and placed in the LOC temporary detention centre no . IZ-CARDINAL/CARDINAL ( ORG ) .

On DATE the deputy Prosecutor General of GPE requested the applicant 's extradition on the ground that he was charged with belonging to an extremist religious organisation , known as “ NORP ” , incitement of religious hatred and attempted subversion of the constitutional regime . The crimes had been committed in DATE .

On DATE ORG examined a request by ORG to have the applicant placed in detention with a view to his extradition to GPE , where he was accused of inciting racial , national or religious hatred , attempted subversion of the constitutional regime , and the creation and leadership of extremist organisations of a religious , separatist , fundamentalist nature , or other prohibited organisations , crimes which were defined by Articles CARDINAL § CARDINAL ( d ) , CARDINAL § CARDINAL ( b ) and CARDINAL § CARDINAL respectively of LAW of GPE .

NORP The court , having noted that those acts were also punishable under LAW , CARDINAL and CARDINAL of LAW of GPE and that the applicant was an NORP citizen , ordered that the applicant be placed in detention pending extradition . The court noted that the applicant had unlawfully obtained a NORP passport .

On DATE the Deputy General Prosecutor refused to extradite the first applicant because the acts with which he had been charged did not constitute a crime under NORP law and because the prescription period for other acts had expired .

On DATE ORG ordered the applicant 's release .

On DATE the first applicant requested ORG of the ORG to grant him refugee status . In his application he indicated that he had NORP nationality , but that in DATE he had received a NORP passport and had married the second applicant . The first applicant gave the unstable economic and political situation and absence of work as the reasons for his departure from GPE . He denied that he had ever committed a crime in GPE .

On DATE he was questioned by officials of the ORG about the details of his claim . In the questionnaire the first applicant indicated his nationality as NORP and submitted details of his national identity papers . He also submitted that he had divorced his first wife in DATE in GPE . As regards his NORP passport , the first applicant submitted that a relative of his wife had helped him to obtain the documents . That man , whose name he could not recall , had died in DATE . As to his fear of persecution in GPE , the first applicant explained that he had learned of the criminal proceedings pending against him there when he was detained in GPE in DATE . He denied having any connection to the charges brought against him and stated that he did not believe that he would have a fair trial in GPE . The first applicant also stated that he feared for his safety in that country .

The outcome of this request is unclear . The first applicant did not refer to this application in the subsequent proceedings .

On DATE , during an identity check , the applicant was arrested in ORG as an unlawfully resident alien .

On DATE ORG reviewed the applicant 's administrative offence case . According to the transcript of the hearing , the first applicant stated that he had lived in GPE since DATE , had traded in fruit and then married . He stated that in DATE his NORP passport had been taken away from him as part of the procedure for obtaining nationality , but that he did not know the outcome of that procedure . He denied having committed any violations of the NORP legislation . When asked by the judge whether he had been aware that a search warrant had been issued for him in GPE , the first applicant replied that he had not committed any crimes . He also stated that he had changed his family name because of his marriage . ORG found the first applicant guilty of a violation of the residence rules for aliens , in that he had failed to take any steps to get a residence permit or to obtain nationality by legal means . It imposed a fine of MONEY ( RUB ) and ordered that the first applicant be expelled from GPE .

On DATE the applicant 's lawyer lodged an appeal against the decision of DATE , arguing that the extradition would sever the applicant 's ties with his NORP family , in view of the ensuing DATE ban on re - entering the country . He therefore asked ORG to alter the sentence and not to order the first applicant 's deportation .

On DATE , on instructions from the first applicant , “ FAC ” ( PERSON “ ORG содействие ” ) an NGO which specialises in providing assistance to refugees from LOC , submitted to ORG a request for suspension of the first applicant 's extradition to GPE . They stated that the first applicant had been charged in GPE with crimes against the state security and membership of a religious organisation , that he would certainly be detained upon arrival and that the risk of torture for this category of persons was recognised by all available international sources . In that letter the representative indicated that the next flight from GPE to GPE was scheduled for TIME on DATE ( DATE , TIME ) . There is a TIME difference between GPE and ORG and another TIME difference between GPE and GPE .

On DATE , on DATE , the ORG indicated to ORG that , under LAW , it was adopting an interim measure for suspension of the extradition . The letter to the ORG , indicating the application of a preliminary measure , was received by ORG at TIME CET . According to the Government , on DATE the information about the application of the interim measure was forwarded to ORG and the ORG .

The applicants ' representative submitted that on DATE she had forwarded a copy of the ORG 's letter of CARDINAL DATE indicating the preliminary measure to the office of ORG and ORG of ORG .

On DATE ORG held a hearing in the absence of the first applicant and his legal counsel . The court established that the applicant was a citizen of GPE , that the NORP passport had been issued in breach of the relevant provisions , that the applicant had not submitted a request for naturalisation to the competent police department and that , according to the consular register of ORG , he had not obtained NORP nationality . Equally , DATE , the date on which his passport had been confiscated , and DATE , DATE on which his identity papers were checked , the applicant had been unlawfully present on the territory of GPE and had taken no steps to declare his residence . The court held that the argument with regard to the potentially lengthy separation of the applicant and his wife and that alleging the applicant 's lack of fault in the issue of the NORP passport were incidental . The court upheld the decision of DATE .

The applicants ' representative informed ORG of that decision on DATE . On DATE the ORG forwarded an additional letter to ORG , alerting them to the decision of ORG and drawing their attention to the fact that the first applicant 's expulsion from ORG had been scheduled for DATE , TIME local time . This letter reached the ORG in GPE at TIME

On DATE at TIME local time the first applicant was deported to GPE .

According to the applicants , upon his arrival in GPE the first applicant was arrested and charged with the crimes for which his extradition had been sought from GPE earlier . The second applicant informed the ORG in DATE that in DATE she had received a phone call from her husband 's relatives in GPE . They claimed that he had been detained at ORG and that he had been subjected to torture . After that she was unable to reach the first applicant 's relatives by phone .

In response to the ORG 's request , in DATE the Government submitted that they had obtained unofficial information that on DATE the first applicant had been tried and found guilty in GPE . He was sentenced to DATE in prison for incitement to racial hatred , attempts to overthrow the constitutional regime and participation in prohibited religious organisations . The Government had no further information about the first applicant 's whereabouts from the NORP authorities . They indicated that as the first applicant had been a national of GPE and did not have NORP nationality , there were no legal grounds for the NORP authorities to intervene on his behalf . The applicants ' representatives had no way of contacting him in detention . It appears that in DATE he was serving his sentence in LOC .

On DATE the second applicant died .

For a summary of the relevant NORP law and practice on issues of detention , extradition and expulsion of foreign nationals , see PERSON v. GPE ( no . CARDINAL , § § DATE , DATE ) .

For a review of the situation in GPE at the relevant time , see PERSON ( cited above , § § DATE ) and PERSON and Others v. GPE ( no . CARDINAL , § § CARDINAL - CARDINAL , DATE ) .


The applicant is a NORP national who was born on DATE and who lives in ORG . He is not represented before ORG . ORG ( “ the Government ” ) are represented by their Agent , PERSON , ORG .

The applicant was widowed on DATE . There were CARDINAL children of the marriage , born on DATE and DATE . In DATE the applicant asked ORG for financial assistance in raising the children , but was refused .

The applicant remarried in DATE . On DATE , he applied for backdated widows’ benefits . On DATE he was informed that his claim had been rejected by ORG .

The applicant is a NORP national who was born on DATE and who lives in GPE , GPE . He is not represented before the ORG . The Government are again represented by PERSON .

The applicant was widowed on DATE .

On DATE he made an application for survivors’ benefits , and was informed in DATE that ORG had rejected his claim . He made a further appeal on DATE but was again rejected .

The applicant is a NORP national who was born on DATE and who lives in GPE , GPE . He is represented before the Court by PERSON , solicitors practising in GPE . The Government are again represented by PERSON .

The applicant was widowed on DATE . On DATE he made an application for survivors’ benefits , to which he received no response .

The applicant is a NORP national who was born on DATE and who lives in GPE . He is not represented before the ORG . The Government are again represented by Mr C. Whomersley .

The applicant was widowed on DATE . Shortly after his wife ’s death he asked ORG if he was entitled to benefits equivalent to those received by widows , but he was informed that he was not eligible because he was a man .

In DATE the applicant made a formal application for widows’ benefits , to be backdated to the time of his wife ’s death . The claim was finally refused by ORG on DATE .

The domestic law relevant to these applications is set out in PERSON v. the GPE , no . CARDINAL , § § DATE , ORG CARDINAL-IV .


George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in FAC . His application was lodged on DATE . He was represented before the ORG by Mr PERSON , a lawyer practising in ORG .

From DATE until DATE and from DATE until DATE the applicant was in pretrial detention in FAC .

NORP The applicant ’s subsequent detention in several other prisons and remand centres is not the subject of the instant application . On an unspecified date , presumably in DATE , the applicant was released and he is currently at liberty .

NORP The applicant ’s description of the conditions of his detention , as reproduced from the materials of his civil action , may be summarised as follows .

All the cells to which the applicant was assigned in FAC at the material time , with the exception of cell no . CARDINAL , were overcrowded to the point that the applicant had less than the statutory minimum standard of QUANTITY ( m² ) of personal space .

The applicant had a TIME period of outdoor exercise every day . He spent TIME inside his cell .

NORP The toilet annex in each of the applicant ’s cells was QUANTITY away from the dining table and was separated from the rest of the cell by a cloth .

The cells were infested with cockroaches and other bugs .

There was only cold running water in the tap and the applicant had to use it for his DATE toiletry needs and for washing dishes . The applicant had CARDINAL hot shower per week .

The applicant was detained under an ordinary security regime . He was not classified as a “ dangerous detainee ” . He claimed that during his detention he had frequently and routinely been subjected to a personal check ( kontrola osobista ) by the guards of FAC . In his submission , he had to strip naked in front of a guard and bend over to show his anus . In the applicant ’s view the “ visual penetration ” by the guard could be compared to sexual harassment and he felt humiliated each time he had undergone a personal check .

As submitted by the penitentiary authorities in the course of the civil proceedings , the applicant , just like any other detainee in FAC , had been subjected to a body search each time he left or returned to the remand centre ’s main wing ( pawilon główny ) . That practice was aimed at preventing the distribution of dangerous or illicit objects among detainees . It was stressed that body searches had always been performed in an enclosed room and without the presence of unauthorised persons .

NORP The applicant did not give any further details about the practice of body checks . He did not indicate the dates of the impugned incidents or their total number . He did not submit how often he had left the remand centre ’s main wing and whether he had been subjected to a personal check when going to his outdoor exercise , a visit or on other occasions .

During his detention , the applicant did not file any formal complaints with the penitentiary authorities about the impugned practice of subjecting him to body checks .

On DATE the applicant lodged a civil action in tort , seeking CARDINAL Polish zlotys ( PLN ) ( MONEY ( ORG ) ) in compensation for the suffering which he claimed to have experienced in ORG due to the inadequate living conditions and body searches .

The applicant ’s submissions to the domestic court about the conditions of his detention and the manner of performing personal checks by the guards were similar to the above description ( see paragraphs CARDINAL above ) . The applicant claimed that , when he had been detained in FAC , he had felt “ traumatised ” and had difficulties sleeping .

On DATE the respondent party , namely ORG and ORG , asked that the case be dismissed .

They submitted that the maximum allowed capacity had , at the relevant time , been exceeded in FAC . As a consequence , the remand centre ’s governor , acting under DATE Ordinance , decided to reduce the statutory minimum standard of CARDINAL m² . He informed a competent penitentiary judge of that decision . The governor acted , therefore , within the law .

Furthermore , the authorities confirmed , to a large extent , the applicant ’s submissions as to the overall living and sanitary conditions in the remand centre . They stressed , however , that the cells had always been sufficiently ventilated and that the furniture , such as tables , could be freely moved around the cell so that detainees could have their meals in a more comfortable atmosphere , further away from the toilet annex . It was also submitted that the remand centre was disinfected twice a DATE by a specialised independent company . Sanitary inspections carried out on a regular basis did not reveal any irregularities .

As to the applicant ’s body searches , the authorities invoked LAW ( CARDINAL ) of LAW and section CARDINAL of the DATE Ordinance , which laid down the rules concerning body searches of detainees and convicted persons . It was further noted that the applicant , just like any other detainee in FAC , had been subjected to a body search each time he left or returned to the remand centre ’s main wing . That practice was aimed at preventing the distribution of dangerous or illicit objects among detainees . It was stressed that body searches had always been performed in an enclosed room and without the presence of unauthorised persons .

Lastly , the remand centre ’s authorities argued that the applicant had not experienced mental suffering due to the conditions of his detention . He had been under the constant supervision of a psychiatrist and neurologist because he had in the past been diagnosed with personality disorders and alcoholism . During his medical consultations the applicant did not complain about any negative effects of his detention .

On DATE ORG ( PERSON ) gave judgment partly in the applicant ’s favour and awarded him compensation in the amount of FAC CARDINAL ( approximately EUR CARDINAL ) .

The domestic court established that , at the relevant time , ORG , which had a maximum allowed capacity of CARDINAL places , had been severely overcrowded . For example , as of DATE , CARDINAL detainees and as of DATE , CARDINAL detainees were held there . Throughout his detention in the remand centre , the applicant was assigned subsequently to CARDINAL different cells . In each of those cells , with the single exception of cell no . CARDINAL , the available space per person was below the statutory minimum standard of CARDINAL m² . DATE and DATE the remand centre ’s governor sent DATE reports to the penitentiary authorities informing them about the rates of overcrowding at any given time .

The domestic court further established that , as a result of the overcrowding , not all detainees could fit around the dining table inside the cell . Many had to have their meals sitting on the bed . The table in the applicant ’s cell was situated QUANTITY away from the toilet annex . The particular position and certain technical problems with the windows limited air circulation and access to natural light . As a result the applicant ’s cells were insufficiently ventilated and lit .

It was also confirmed that the toilet annexes in FAC were either not separated from the rest of the cell or separated by a cloth hung over a metal rod which was permanently attached to the walls . In the applicant ’s cells the toilet annexes were separated with a bed sheet . In the court ’s opinion , such separation did not provide sufficient privacy because the toilet was very near the beds and dining tables .

The domestic court also established that , despite the efforts of the remand centre ’s administration , the applicant ’s cells had been infested with cockroaches .

As to the practice of body searches , the domestic court found the explanations provided by the remand centre to be true . In consequence , the applicant ’s claim for compensation on this account was considered unjustified .

Having analysed the applicant ’s medical history , the domestic court agreed that the living conditions in the remand centre had not been the cause of the applicant ’s anxiety and sleeping difficulties .

In its reasoning on the merits , ORG relied on the judgments of ORG of DATE and of ORG of CARDINAL DATE , as well as the jurisprudence of ORG .

It concluded that the applicant ’s detention in overcrowded cells ( during CARDINAL out of a total of DATE ) , in inadequate sanitary conditions ( cockroaches and the lack of sufficient separation of the toilet annex ) , with insufficient ventilation and lighting , had given rise to suffering and humiliation which had exceeded the inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment . That , in turn , constituted an infringement of the plaintiff ’s personal rights protected by LAW ( PERSON ) . Moreover , the domestic court held that the requirement of Article CARDINAL of LAW , namely that the act or omission leading to the infringement of a personal right had to be unlawful , was satisfied in the light of the finding of ORG that Article CARDINAL of LAW was unconstitutional .

In its analysis concerning compensation , the domestic court reiterated that according to LAW of LAW and the established domestic practice , compensation for a breach of a personal right should be “ just ” and , therefore , it should be of an economically significant value and not merely symbolic .

CARDINAL ( approximately ORG CARDINAL ) .

The domestic court decided not to order the applicant to bear any of the costs of the proceedings ( koszty procesu ) and waived his court fee ( koszty sądowe ) .

The applicant did not appeal against that judgment .

On DATE ORG ( Sąd Apelacyjny ) dismissed the appeal brought by the respondent party . The appellate court upheld the first - instance judgment .

A cassation appeal to ORG ( Sąd Najwyższy ) was not available due to the low amount of the claim .

A detailed description of the relevant domestic law and practice concerning general rules governing the conditions of detention in GPE and domestic remedies available to detainees alleging that conditions of their detention were inadequate are set out in the ORG ’s pilot judgments given in the cases of PERSON v. GPE ( no . CARDINAL ) and PERSON v. GPE ( no . CARDINAL/CARDINAL ) on CARDINAL DATE ( see § § DATE and § § CARDINAL respectively ) . More recent developments are described in the ORG ’s decision in the case of PERSON v. GPE ( no . CARDINAL/CARDINAL ) on CARDINAL October CARDINAL ( see § § CARDINAL ) .

The socalled personal check ( kontrola osobista ) of convicted persons is authorised and defined by LAW of LAW ( NORP karny wykonawczy ) , which in its relevant part reads as follows :

“ § CARDINAL A convicted person must obey the regulations concerning ... prison order and execute the orders of supervisors and other authorised persons , in particular :

§ CARDINAL In cases justified by internal order and security a convicted person will be subjected to a personal check .

§ CARDINAL A personal check means an inspection of the body and checking of clothes , underwear and footwear as well as [ other ] objects in a [ prisoner ’s ] possession . The inspection of the body , checking of clothes and footwear shall be carried out in a room , in the absence of third parties and persons of the opposite sex and shall be effected by persons of the same sex . ”

Moreover , section DATE ( CARDINAL ) of the Ordinance of the Minister of ORG of CARDINAL DATE on the security of the establishments of ORG ( ORG w sprawie sposobów ochrony jednostek organizacyjnych PERSON ) , authorises a personal or cursory ( kontrola pobieżna ) check of a convicted person in a detention facility in order to find dangerous or illicit objects or to foil an escape , or in any other justified cases .


No violation of Art. 5-3;Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant is a NORP national , born in DATE . He lives in GPE , GPE .

In DATE , an owner of a café alleged that the applicant had beaten him and threatened to take over the control of his property .

The applicant was arrested on DATE . On DATE he was brought before ORG which issued a detention order against him . The court reasoned that the applicant might commit further crimes while under this current suspicion .

On DATE the applicant was indicted for attempting to obtain property by threats of force .

On DATE the applicant appealed against the decision to remand him in custody , claiming inter alia that there was no reason for his detention and asking for bail .

On DATE ORG dismissed the appeal . The applicant was not present at the hearing , but his counsel was . ORG noted that the applicant had been brought before ORG which had issued the detention order , and that the first instance court could therefore assess the need for him to be held in custody inter alia on the basis of his personality and attitude . The appellate court concluded that the first instance court had properly specified the danger of the applicant committing further crimes as the reason for his remand in custody .

On DATE ORG extended the term of the applicant ’s detention , in his absence but with his counsel present . The court no longer held that the applicant might commit further crimes , but specified fresh grounds for the detention , namely that the applicant could abscond and influence witnesses .

On DATE the applicant appealed , claiming inter alia that his detention on remand was unlawful under domestic law and the Convention . He alleged in particular that the decision was arbitrary , as the court had presented no facts in support of its conclusion that he might abscond or influence witnesses . He requested bail .

On DATE a judge of ORG returned the appeal without examination . The judge informed the applicant by letter that LAW did not provide for an appeal against a decision extending the term of detention .

On DATE a judge of ORG committed the applicant to trial in the absence of the parties . In his decision the judge also decided that the applicant should remain in custody . No grounds or term for that detention were specified . The judge did not mention the applicant ’s complaints regarding the lawfulness of his detention .

The charges against the applicant were subsequently replaced as he was indicted for affray . On DATE ORG convicted him . He was sentenced to DATE and CARDINAL months’ imprisonment . He did not appeal against the first instance judgment .

The applicant has now been released from prison after having completed his sentence .

II . RELEVANT DOMESTIC LAW

< Translations are given >

Article CARDINAL § CARDINAL of the LAW of GPE ( NORP PERSON ) provides :

“ A person whose constitutional rights or freedoms are violated shall have the right to apply to court . ”

Relevant provisions of LAW ( Baudžiamojo proceso kodeksas ) :

Article CARDINAL § CARDINAL ( CARDINAL ) and ( CARDINAL) and LAW ( CARDINAL) and ( CARDINAL ) provide , respectively , that the accused and their counsel have the right to “ submit requests ” and to “ appeal against acts and decisions of an interrogator , investigator , prosecutor and court . ”

Article CARDINAL - CARDINAL ( in force until DATE ) :

“ ... the arrested person shall be brought before a judge in not more than CARDINAL hours ... The judge must hear the person as to the grounds of the arrest . The prosecutor and the counsel of the arrested person may take part in the inquiry . After having questioned the arrested person , the judge may maintain the arrest order by designating the term of detention , or may vary or revoke the remand measure .

... after the case has been transmitted to the court ... [ the court ] can order , vary or revoke the detention on remand / arrest . ”

Article CARDINAL § CARDINAL ( in force until DATE ) :

“ For the purpose of extending the term of detention on remand [ at the stage of pre - trial investigation ] a judge must convene a hearing to which defence counsel and a prosecutor and , if necessary , the detained person shall be called . ”

“ An arrested person or his counsel shall have the right during pre - trial investigation to lodge [ with an appellate court ] an appeal against the detention on remand ... . With a view to examining the appeal , there may be convened a hearing , to which the arrested person and his counsel or only counsel shall be called . The presence of a prosecutor is obligatory at such a hearing .

The decision taken by [ the appellate judge ] is final and can not be the subject of a cassation appeal .

A renewed appeal shall be determined when examining the extension of the term of the detention on remand . ”

The present LAW in force from DATE ) provides that the detainee is able to appeal against decisions authorising detention both at the stage of pre - trial investigation and during the trial . With a view to examining the appeal , the court is now under the obligation to convene a hearing , to which the detainee and his defence counsel or only counsel must be called .

Article CARDINAL § CARDINAL :

“ A judge individually or a court in a directions hearing , in deciding whether to commit the accused to trial , shall determine ...

CARDINAL ) whether the remand measure has been selected appropriately . ”


Violation of Art. 6;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

The applicant was born in DATE and lives in Petrozavodsk .

In DATE and DATE the applicant won QUANTITY cases in court against her former employer , a ORG - owned enterprise , and was awarded a sum of money .

Consequently , enforcement proceedings were instituted by the bailiff and CARDINAL of the judgments was partly executed .

On DATE the bailiff transmitted the materials relating to the enforcement proceedings to ORG as there were bankruptcy proceedings instituted in respect of the enterprise .

The enterprise was declared bankrupt in DATE and its debts were considered as paid upon termination of the bankruptcy proceedings in DATE . No money was paid to the applicant due to the lack of funds .

On an unspecified date the applicant instituted court proceedings against various public authorities seeking pecuniary and non - pecuniary damages for the non - enforcement of the court judgments . She claimed that the judgments had not been enforced due to the bailiff 's failure to take timely measures to facilitate their enforcement .

On DATE the Petrozavodsk Town Court of GPE ORG городской суд PERSON ) ruled in the applicant 's favour . ORG found that during the period when the enforcement proceedings were managed by the bailiff , i.e. before DATE , the enterprise carried out economic activities and paid taxes . However , within that period the bailiff failed to take all the necessary measures to facilitate the timely enforcement of the court judgments . The applicant was awarded pecuniary damages in the amount of MONEY to be paid from ORG . Her claims for non - pecuniary damages were rejected .

On DATE ORG Верховный Суд Республики GPE ) upheld the judgment of ORG in the final instance .

On DATE the bailiff instituted enforcement proceedings on the basis of the court judgment of DATE . The bailiff ordered ORG ( ORG РФ ) voluntarily to comply with the judgment by DATE .

On an unspecified date in DATE , while the enforcement proceedings were still in progress , the President of ORG Суда Республики Карелия ) lodged an application for supervisory review ( протест в порядке надзора ) of the judgment of DATE and the decision of DATE .

On DATE the ORG of ORG Суда Республики Карелия ) decided to quash the said decisions on the grounds that they conflicted with procedural and substantive laws . The case was remitted for a new examination at first instance .

On an unspecified date following the ORG 's decision the bailiff applied to the courts seeking to stay the enforcement proceedings until there was a final decision taken on the merits of the case .

On DATE the ORG of GPE found that in the present circumstances the enforcement proceedings should be terminated rather than stayed .

By decision of DATE ORG upheld the decision of ORG and decided in the final instance to terminate the enforcement proceedings .

On DATE the ORG of GPE delivered a new judgment on the merits , rejecting the applicant 's claims . ORG found that the bailiff had not been responsible for the non - enforcement of the court judgments as the enterprise lacked any assets at the relevant time .

On DATE ORG upheld the judgment of ORG in the final instance .

Section CARDINAL of the Code of Civil Procedure of DATE ( Гражданский процессуальный кодекс РСФСР ) , as in force at the relevant time , provided that regional and higher courts could conduct supervisory review of the activities of the lower courts .

According to Sections CARDINAL , CARDINAL and CARDINAL of the Code , certain senior judicial officers could , at any time , at request of the person concerned or on their own motion , lodge with a higher court an application for supervisory review of a final decision of a lower court on points of law and procedure .


NASSAU VERZEKERING MAATSCHAPPIJ N.V. v. THE NETHERLANDS

Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi

NORP The applicant company , ORG , are a limited company ( naamloze vennootschap ) incorporated under GPE law with its offices in GPE . Their business is insurance . The applicant company were represented before ORG by PERSON , a lawyer practising in GPE .

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

NORP The limited partnership ( commanditaire vennootschap ) H. was a firm of insurance brokers . The applicant company insured H. against professional liability .

One of the clients served by ORG was the limited liability company ( besloten vennootschap ) NORP Among the insurance contracts negotiated for NORP by PERSON was a fire insurance policy with a different insurance company ( not the applicant ) covering a warehouse belonging to NORP

A dispute arose between ORG and NORP after the warehouse was damaged by fire . It emerged that the warehouse was underinsured , allegedly as a result of ORG ’s negligence .

R. sued PERSON for the difference between the insurance payout and the actual damage before ORG ( rechtbank ) of PERSON . On DATE that court ordered H. to pay to NORP a total sum of CARDINAL in damages , plus interest and costs .

NORP The time - limit for lodging an appeal with ORG ( gerechtshof ) expired on DATE .

The appeal summons ( dagvaarding ) was served on NORP on DATE , that is DATE . The applicant company state that this resulted from an oversight on the part of the bailiff ( deurwaarder ) .

On DATE ORG of GPE gave judgment rejecting ORG ’s appeal as out of time .

H. lodged an appeal on points of law with ORG ( PERSON ) , which confirmed ORG judgment on DATE .

The applicant company paid the sums awarded by ORG to NORP

On DATE and the applicant company signed a deed of assignment ( akte van cessie ) containing the following clauses :

“ CARDINAL . The parties [ i.e. H. and the applicant company ] take the view that DATE since it has now been established in law that H. ’s appeal is inadmissible DATE right of access to a tribunal , enshrined in LAW , has been violated . H. thus has a claim against the GPE based on violation of LAW . This claim will be realised by bringing proceedings against ORG in ORG on the ground of violation of LAW .

H. is prepared to assign the above - mentioned claim against ORG to [ the applicant company ] for the purpose of the intended proceedings . [ The applicant company ] are prepared to accept this assignment . ”


Violation of Art. 6-1;No violation of P7-4;Remainder inadmissible;Pecuniary damage - claim rejected;Non-pecuniary damage - award

David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Päivi Hirvelä

The applicant was born in DATE and is currently serving a sentence in FAC in GPE .

NORP In DATE the prosecutor ’s office for the city of GPE charged the applicant with murder on the basis of evidence from the victim ’s father , who maintained that he had been told by the victim , before his death , that the applicant was one of the murderers . The investigation in respect of CARDINAL other suspects had been discontinued .

The applicant ’s father , when interviewed by the police , stated that the applicant had been travelling to GPE with CARDINAL other persons on DATE when the murder was committed .

On DATE the applicant , in absentia , was found guilty of murder under LAW and was sentenced to DATE imprisonment by ORG . His appeal to the then ORG was declared inadmissible on DATE .

Following the signature of an authorisation form by the applicant ’s father on DATE , under LAW ( “ the ORG ” ) , the applicant ’s counsel sought judicial review of ORG judgment by a request bearing the same date . The application for judicial review reached ORG on DATE .

The judicial review request stated that new evidence had emerged in favour of the applicant . Firstly , from the autopsy report it transpired that the victim had been stabbed in the heart and had died instantly ; consequently , from a scientific point of view the victim had not been able to communicate . Secondly , CARDINAL witnesses stated that they had been travelling with the applicant early in the TIME to take the ferry to GPE at the time when the murder had occurred .

On DATE the applicant authorised the same lawyer , who had already been appointed by his father on DATE , to represent him in the domestic proceedings .

By means of a letter of CARDINAL DATE to the district prosecutor , ORG at ORG forwarded the case file of the applicant and added that

“ the request for judicial review meets the legal requirements ( kërkesa për rishikimin e vendimit plotëson kriteret ligjore ) ” .

It requested the district prosecutor to examine objectively the new pieces of evidence to be submitted to ORG .

NORP The district prosecutor , who happened to be the same person who had attended the first trial , attended the hearing and requested the dismissal of the case pursuant to LAW which states that the case may be dismissed “ if it transpires that the defendant has not committed the criminal offence or it can not be proved that he committed the offence . ”

On DATE ORG declared admissible the applicant ’s application for judicial review . The court , deciding on the merits and after examining the new evidence and taking into account the prosecutor ’s office request , quashed ORG judgment of CARDINAL DATE ( see paragraphs PERSON above ) and acquitted the applicant on DATE ( “ the acquittal decision ” ) .

No appeal was lodged against the judgment within DATE allowed and it therefore became final on DATE .

On DATE the prosecutor at ORG ( “ the appeal prosecutor ” ) lodged a request for leave to appeal out of time against the acquittal decision with ORG . The appeal prosecutor submitted as the ground for his request that shortcomings on the part of the district prosecutor had been observed . Invoking LAW ORG about the resignation of a prosecutor in cases of lack of impartiality , whose content makes reference to the resignation of a judge under LAW ORG , the appeal prosecutor maintained that the district prosecutor who had attended the first trial proceedings should not have participated in the review proceedings . LAW ( c ) of the ORG provides that a judge must resign “ when he has provided advice or expressed opinion about the subject of proceedings . ”

The appeal prosecutor contended that the victim ’s family , who had been an injured party to the proceedings , had not been informed about the acquittal proceedings in accordance with LAW ORG . The appeal prosecutor became aware of the acquittal decision on an unspecified date before DATE , when the victim ’s family ’s complaint about the acquittal decision was forwarded to other authorities .

On DATE ORG , in the applicant ’s absence and in the presence of an officially appointed defence lawyer , despite the existence of a lawyer of the applicant ’s own choosing ( see paragraph CARDINAL above ) , granted the prosecutor leave to appeal out of time .

On an unspecified date the lawyer officially appointed in the proceedings before ORG lodged an appeal with ORG of Appeal challenging the above - mentioned decision because the applicant had not been notified and the decision had not been served on him in accordance with LAW ORG . Meanwhile , in accordance with ORG decision of DATE , the appeal prosecutor filed an appeal against the acquittal judgment .

On DATE ORG rejected the applicant ’s officially appointed lawyer ’s appeal on the ground that the decision granting the prosecutor ’s request for leave to appeal out of time was not subject to appeal by virtue of LAW of the ORG , as it did not put an end to the criminal proceedings . It also rejected the prosecutor ’s appeal as it had not been notified explicitly to the applicant in accordance with LAW ORG . On an unspecified date the prosecutor appealed to ORG .

On DATE ORG quashed ORG decision of DATE . It found that the requirements concerning the notification of court decisions to the applicant ’s officially appointed lawyer had been satisfied since the applicant was considered a fugitive . Accordingly , the court granted the prosecutor ’s request for leave to appeal out of time against the acquittal decision and remitted the case to ORG for a fresh examination .

According to the submissions of the appeal prosecutor to ORG , the acquittal had to be considered null and void in so far as the new evidence adduced by the applicant , even if it gave him an alibi , had been submitted too late . Moreover , the prosecutor who had participated in the judicial review proceedings had also taken part in the first trial . Lastly , it was alleged that the applicant ’s counsel lacked standing to initiate proceedings for judicial review as the applicant had signed a form of authority DATE after the application for judicial review had been lodged .

On DATE ORG confirmed the reasoning set out in the acquittal decision of DATE and dismissed the prosecutor ’s appeal . The officially appointed lawyer was notified of the decision . On an unspecified date , citing the same grounds of appeal as he had lodged with ORG , the prosecutor appealed to ORG , claiming that the acquittal decision was null and void .

On DATE ORG upheld the prosecutor ’s grounds of appeal and , deciding on the merits , quashed the acquittal decision . It held that there had been a breach of the ORG ’s provisions relating to the applicant ’s counsel ’s legal capacity to lodge an application for judicial review on DATE . It found that he was appointed to act by the applicant on DATE i.e. DATE after he had filed the request with ORG . The judgment was notified to the officially appointed lawyer .

In DATE the applicant , who from DATE onwards had been serving a sentence of DATE imprisonment in FAC ( GPE ) , imposed by the NORP courts for international drug trafficking , was notified of ORG judgment that had led to the review of his acquittal , following a request by the NORP authorities for his extradition .

On DATE the lawyer appointed by the applicant , who had already acted for him in the judicial review proceedings ( see paragraph CARDINAL above ) , lodged an appeal with ORG , alleging a violation of the applicant ’s constitutional right to a fair trial and a breach of LAW and CARDINAL ( a ) and ( c ) of the LAW .

In his submissions before that court the applicant maintained that the domestic court proceedings had been unfair on the grounds that neither he nor the counsel of his own choosing had been informed of the institution of proceedings and that he had been deemed to be a fugitive despite the fact that he had appointed a lawyer , whose legal capacity formed the basis of the prosecutor ’s grounds of appeal against the acquittal .

NORP Moreover , the applicant submitted that in view of the fact that the NORP authorities had addressed CARDINAL requests to the NORP authorities for his extradition to GPE , there was reason to believe that the NORP authorities had had the possibility of giving him notice of the institution of proceedings and of serving the courts’ decisions on him .

As to the merits of the proceedings that led to the quashing of his acquittal , the applicant maintained that his counsel ’s legal standing was not open to challenge in so far as on DATE his father had authorised the lawyer to represent the applicant before the domestic courts in the proceedings for judicial review , and he himself had confirmed that authority on DATE .

On DATE ORG decided de plano to declare the applicant ’s appeal inadmissible as being outside its jurisdiction .

The NORP LAW , in its relevant parts , provides as follows :

DATE

During criminal proceedings , everyone has the right :

a. to be notified immediately and in detail of the charges brought against him , of his rights , and to have the possibility to notify his family or relatives ;

b. to have sufficient time and facilities to prepare his defence ;

c. to have the assistance of a translator free of charge , when he does not speak or understand the NORP language ;

ç . to present his own case or defend himself through the assistance of counsel of his own choosing ; to communicate freely and privately with him , as well as to be provided free legal counsel when he does not have sufficient means ;

d. to examine witnesses who are present and to request the appearance of witnesses , experts and other persons who can clarify the facts .

Article CARDINAL

No one shall be obliged to testify against himself or his family or to confess his guilt .

No one shall be declared guilty on the basis of evidence collected unlawfully .

Article CARDINAL

Everyone has the right to be heard before being judged .

A person who is seeking to evade justice may not avail himself of this right .

Article CARDINAL

No one shall be punished twice for the same criminal offence or be tried again , except when the reopening of the case is ordered by a higher court , in accordance with the law .

“ In the protection of his constitutional and legal rights , freedoms and interests , or in defending a criminal charge , everyone has the right to a fair and public hearing , within a reasonable time , by an independent and impartial court established by law . ”

Article CARDINAL

Everyone has the right to appeal against a court decision to a higher court , save as otherwise provided in the LAW .

“ State bodies shall comply with judicial decisions . ”

“ The Constitutional Court shall decide : ...

( f ) in a ruling that shall be final , complaints by individuals alleging a violation of their constitutional rights to a fair hearing , after all legal remedies for the protection of those rights have been exhausted . ”

The relevant parts of LAW ( “ the ORG ” ) , as in force at the material time , provided as follows .

Article CARDINAL § CARDINAL of the ORG required a prosecutor to resign when there were grounds to fear partiality in the cases envisaged under LAW ORG . DATE made reference to the resignation of a judge from adjudicating an existing case . LAW ( c ) required a judge to resign when he had given advice or expressed an opinion on the subject of the proceedings .

Article CARDINAL of the Code of Criminal Procedure ( “ the ORG ” ) provided that the defendant should choose his counsel by means of oral submissions at a court hearing or an authority form to be sent by registered mail . The defendant ’s relatives could also choose a lawyer to represent the defendant who had been detained , arrested or convicted and sentenced to imprisonment , by the above - mentioned methods , unless the defendant had already chosen his representative .

Article CARDINAL of the Code of Criminal Procedure gave the injured party resulting from the criminal offence or his heirs the right to request the prosecution of the offender and compensation for damage . Article CARDINAL permitted the injured party to file an appeal him / herself or through his / her representative , in respect of criminal and civil aspects .

Under LAW ORG , a party to proceedings who had failed , owing to unforeseen events or force majeure , to lodge an appeal against a judgment within the prescribed time , could seek leave to appeal out of time . Under LAW a defendant convicted in absentia may be granted leave to appeal out of time against a court decision , if he has established that he had no effective knowledge of it . Under LAW , the request for leave to appeal out of time had to be lodged within DATE of the date on which the party was notified of the judgment . Under LAW § CARDINAL the decision to allow a request for leave to appeal out of time could be appealed against in conjunction with the decision on the merits of the case .

Under LAW an appeal could be filed with ORG within DATE starting from DATE of the pronouncement or notification of the decision .

Articles CARDINAL and CARDINAL of the ORG provided that an application for review of the case on account of a newly discovered circumstance should be lodged by a party to the proceedings with the same court that had delivered the original judgment . Such an application should be lodged within DATE from the delivery of an acquittal judgment .


Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in FAC .

He was employed by ORG where he worked in the catering service . In DATE he received his employment booklet ( radna knjižica ) by registered mail , and his employer had noted in it that his employment had been terminated on DATE . Enclosed with it , for the applicant to sign , was a draft mutual agreement to terminate his employment , reference no . CARDINAL - CARDINAL - CARDINAL/CARDINAL - CARDINAL/CARDINAL - CARDINAL , dated DATE and signed by the employer .

The applicant refused to sign the draft agreement . Instead , on DATE he made a request to the employer for the protection of his rights ( zahtjev za zaštitu prava ) arising from the employment relationship . However , no formal decision was given by the employer in response to the applicant 's request . Rather , in a letter of CARDINAL DATE the applicant was merely notified that his employment had been terminated because the catering service of ORG had been outsourced to a third party for whom the applicant had refused to work .

On DATE the applicant brought a civil action in ORG ( PERSON ) seeking reinstatement . He argued that his employment had been terminated against his will as he had never agreed with the employer to terminate it . Thus , the employer 's actions had amounted to a dismissal , which was unlawful since no formal decision had been issued .

On DATE ORG , considering that ORG was competent to hear the applicant 's case , declined jurisdiction in the matter and declared his action inadmissible . On DATE ORG ( PERSON ) dismissed the applicant 's appeal and upheld the first - instance decision . On DATE ORG ( PERSON ) declared inadmissible the applicant 's subsequent appeal on points of law ( revizija ) against the second - instance decision . The case was then transferred to ORG .

On DATE ORG ( Upravni sud PERSON ) issued a decision whereby it invited the applicant 's representative to specify which decision , that is , which administrative act , the applicant was challenging , and to submit CARDINAL copies of it . The decision read as follows :

“ In the administrative dispute of the plaintiff PERSON ... against the decision of the respondent , ORG ) concerning the termination of his employment , [ the plaintiff 's ] representative is invited , within the meaning of CARDINAL of LAW , to provide this court within DATE with :

- an express statement indicating which specific administrative act he is contesting by his action – it is necessary to indicate the [ reference ] number of the act , as well as its date of issue , and to provide this court with CARDINAL copies of that decision .

If the [ plaintiff 's ] representative does not correct the above shortcomings of the action , the court will declare it inadmissible as deficient . ”

On DATE the applicant 's representative replied as follows :

“ Acting upon the decision of the [ ORG ] of DATE , the plaintiff states that he is unable to indicate the specific [ reference ] number of the administrative act , that is to say , a potential decision , because such an act has never been issued by the respondent and the plaintiff 's employment contract was terminated in the manner indicated and described in the statement of claim [ ( ' u tužbi ' ) ] [ of CARDINAL DATE ] . ”

On DATE ORG declared the applicant 's action inadmissible , finding that he had failed to rectify the shortcomings of his action as requested .

The applicant then lodged a constitutional complaint against ORG decision . On DATE ORG ( Ustavni sud PERSON ) dismissed the applicant 's complaint and served its decision on his representatives on CARDINAL DATE .

On DATE a certain PERSON , who had also been employed by ORG and dismissed in the same way as the applicant , brought a civil action in ORG seeking reinstatement . She was represented by an advocate from the same law firm as the advocate who represented the applicant in the above proceedings . In her action ORG explained that she used to work in the catering service of ORG and that on DATE she had received her employment booklet by registered mail and her employer had noted in it that her employment had been terminated on DATE . Enclosed with it , for her to sign , was a draft mutual agreement to terminate her employment , no . CARDINAL - CARDINAL - CARDINAL - CARDINAL/CARDINAL - CARDINAL , dated DATE and signed by the employer . ORG further explained that she had refused to sign the draft agreement . Instead , she had made a request to the employer for the protection of her rights arising from the employment relationship . However , no formal decision had been given by the employer in response to her request . Rather , in a letter of CARDINAL DATE she had merely been notified that her employment had been terminated because the catering service of ORG had been outsourced to a third party .

On DATE ORG , considering that ORG was competent to hear the plaintiff 's case , declined jurisdiction in the matter and declared her action inadmissible . On DATE ORG dismissed her appeal and upheld the first - instance decision . The case was then transferred to ORG .

On DATE ORG issued a decision whereby it invited the plaintiff 's representative to specify which decision , that is , which administrative act , the plaintiff was challenging , and to submit CARDINAL copies of it .

On DATE the plaintiff 's representative replied to the court 's request . The relevant part of her reply read as follows :

“ On the basis of its mutual agreement on the termination of employment contract number : CARDINAL - CARDINAL - CARDINAL - CARDINAL/CARDINAL - CARDINAL of DATE , which agreement was signed only by the respondent ... , the respondent recorded the termination of employment in the plaintiff 's employment booklet , and on DATE the plaintiff received the employment booklet and the [ abovementioned draft ] mutual agreement by registered mail .

The plaintiff made a request to the respondent for the protection of her rights but on DATE she received notification that her employment relationship with the respondent had been terminated because the respondent no longer provided catering services .

Since the provisions of LAW prescribe that a written mutual agreement on the termination of an employment contract constitutes a legal way to terminate the employment contract if both parties sign it , and given that the plaintiff refused to sign the [ abovementioned draft ] mutual agreement , [ that agreement ] can not be considered to have been concluded and could not have produced any legal effect . The respondent could only have dismissed the plaintiff for business reasons by giving her notice . Therefore , the termination of employment in question and the rescission of the employment contract represents a flagrant breach of the employee 's rights because the respondent – contrary to the legislation in force – unilaterally rescinded the plaintiff 's employment contract on the basis of a ' mutual agreement ' the plaintiff did not sign and was not obliged to sign . ”

The plaintiff 's representative also emphasised that ORG had already declined jurisdiction in the case and invited ORG , should it find that it did not have jurisdiction either , to apply to ORG in order to resolve the conflict of jurisdiction with the ordinary courts thereby created .

On DATE ORG , considering that it did not have jurisdiction to examine the case , applied to ORG to resolve the conflict of jurisdiction with the ordinary courts . In its application the court wrote , inter alia :

“ .. [ It ] is undisputed that the plaintiff concluded an employment contract of unlimited duration with the respondent on DATE and that the respondent tried to rescind that contract by a mutual agreement ... which the plaintiff did not sign and which can not in any case constitute an administrative act ... for which reason ORG can not decide on [ its ] lawfulness .

This case does not concern a dispute where a decision on a right of a civil servant or an employee employed by a state organ is being contested . Rather , it concerns a mutual agreement on the termination of an employment contract , and its lawfulness can not be reviewed by ORG . ”

On DATE ORG ruled that ORG was the competent court to hear the ORG 's case .

The Administrative Disputes Act ( Zakon o upravnim sporovima , ORG of ORG no . CARDINAL/CARDINAL , and ORG nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and DATE ) regulates the procedure before ORG and in its relevant part provides as follows :

Section CARDINAL ) provides that the proceedings before ORG ( that is , an administrative dispute ) may be initiated only against an administrative act .

Section CARDINAL(CARDINAL ) provides that an administrative act , within the meaning of that LAW , is an act whereby a state organ in the exercise of public authority decides on a right or obligation of an individual or an organisation in some administrative matter .

Section ORG ) provides that a statement of claim must indicate , inter alia , the contested administrative act and must be accompanied by the original or a copy of the contested act .

Section CARDINAL(CARDINAL ) provides that if the action is incomplete or incomprehensible , the president of the panel shall invite the plaintiff to correct the shortcomings within a certain time - limit . In doing so , the president should instruct the plaintiff what has to be done and how and warn him or her of the consequences of failing to comply with the court 's request .

Section CARDINAL ) provides that if the plaintiff does not correct the shortcomings of his action within the time - limit fixed , and they are of such a nature as to prevent the court proceeding with the case , the court shall declare the action inadmissible as deficient .

Section CARDINAL provides that if LAW does not contain specific provisions on the procedure before ORG ( that is , in administrative disputes ) , the provisions of LAW should apply mutatis mutandis .

Sections CARDINAL - CARDINAL provide for the remedy of reopening proceedings before ORG and regulate the procedure following a petition for reopening .

The relevant part of LAW ( Zakon o parničnom postupku , ORG of ORG nos . CARDINAL , CARDINAL/CARDINAL ( corrigendum ) , CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , DATE , DATE , DATE , CARDINAL/CARDINAL and CARDINAL/CARDINAL , and ORG nos . CARDINAL , GPE , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL and GPE ) , as in force at the relevant time , provided as follows :

“ If the court to which the case has been transferred ... considers that the court which has transferred the case or some other court has jurisdiction , it shall refer the case to the court competent to resolve that conflict of jurisdiction ... ”

“ The conflict of jurisdiction between courts of different types shall be resolved by ORG . ”

“ ( CARDINAL ) When ORG has found a violation of a human right or fundamental freedom guaranteed by LAW or additional protocols thereto ratified by GPE , a party may , within DATE of the finality of the judgment of ORG , file a petition with the court in GPE which adjudicated in the first instance in the proceedings in which the decision violating the human right or fundamental freedom was rendered , to set aside the decision by which the human right or fundamental freedom was violated .

( CARDINAL ) The proceedings referred to in paragraph CARDINAL of this section shall be conducted by applying , mutatis mutandis , the provisions on the reopening of proceedings .

( CARDINAL ) In the reopened proceedings the courts are required to respect the legal opinions expressed in the final judgment of ORG finding a violation of a fundamental human right or freedom . ”


Remainder inadmissible;No violation of Art. 8

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in GPE .

The applicant is a Member of ORG and delegate of the political party GPE – ORG ( the “ FAC ” ) . During the parliamentary elections DATE , he was a candidate in one of the electoral districts of PERSON . On DATE , prior to the second ballot round , a flyer was distributed in the applicant ’s electoral district , signed by ORG , chairman of ORG . The flyer read as follows :

“ Dr. PERSON , in his capacity as a member of the PERSON ... in ORG , regularly voted against the interests of the county . Moreover , in the debate concerning the route of the MCARDINAL highway , he did not support the version favourable to the county , with which − aside from the county − he probably harmed his own electoral district the most . ”

On DATE the applicant filed a criminal complaint against ORG with ORG , accusing him of libel . Finding that the impugned act fell within the competence of public prosecution , ORG transferred the case to ORG in DATE .

ORG ordered the continuation of the criminal proceedings in DATE . On DATE ORG terminated the investigation , finding that there had been no crime committed within the realm of public prosecution . The applicant stated that this decision was only served on him on DATE . He lodged a complaint against this decision which was dismissed by PERSON Regional Public Prosecutor ’s Office on DATE . ORG was of the view that the impugned act had occurred during the electoral campaign and , as a candidate , the applicant could not have been considered a public official . Therefore , the act did not concern a matter of public prosecution . The applicant submitted an application seeking a review of this decision to the Attorney ORG . It dismissed his application on DATE .

On DATE the applicant , acting as a private prosecutor , submitted an indictment against ORG to ORG , accusing the latter of having committed libel against him as a public official during official proceedings .

On CARDINAL DATE ORG dismissed the applicant ’s indictment . It found that the impugned statement was a value judgment , with regard to which the limits of acceptable criticism were wider for a politician – who must display a greater degree of tolerance . No appeal lay against this decision .


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

Editions LOC is a limited company , incorporated under NORP law , whose registered office is in GPE . It was founded in DATE for the purpose of creating a review entitled " Périscope de l’usine et du bureau " , which was to analyse new industrial products and provide an " integrated readers’ service " . At the time periodicals of this type were unknown in GPE .

On DATE the applicant company applied to ORG ( " ORG " ) for a certificate of registration for its review in order to secure the tax concessions and preferential postal charges accorded to the press .

ORG rejected the application on DATE and refused CARDINAL further applications on DATE and CARDINAL DATE . It did not reply to a fourth , lodged on DATE . Although these decisions were equivalent to decisions having an adverse effect because they were binding on the administrative authorities , they were not challenged in the ORG d’État as being ultra vires .

The reason given was always the same : the review was classified as an advertising organ because it represented a link between its subscribers and manufacturers for the purposes of a commercial transaction . It published the technical data furnished by the manufacturer himself for the articles presented ; a reader interested in a model returned to the head office of PERSON du bureau a form with the reference of the model in question ; the manufacturer then received this form and sent the relevant documentation . In fact , in order to obtain the advantages which it claimed , the review would have had to have devoted QUANTITY of its surface to information of general interest or to provide its readers’ service with critical editorial comment .

Editions LOC also submitted CARDINAL informal requests which were rejected by the Secretaries General of ORG ( DATE ) and of ORG ( DATE ) .

It also made various representations to the public authorities up until DATE , but without success .

" PERSON et du bureau " ceased to appear in DATE and the company which published it became the subject of composition proceedings and then went into liquidation . However , ORG rescinded its order after the managing director had agreed to meet the liabilities of the company out of his personal funds .

On DATE Editions Périscope submitted a preliminary application to the Minister for Finance , the Junior Minister for Posts and Telecommunications and the Junior Minister of the Prime Minister ’s office , Spokesman for the Government . It sought compensation of MONEY for the damage which it claimed to have sustained since DATE through the fault ( faute ) of the public authorities . No reply to the application was forthcoming .

On DATE Editions Périscope instituted proceedings in ORG . It asked the court :

" to allow the ... application and , for the reasons set out ... , order the ORG to pay it the sum of MONEY as compensation for the damage which it has sustained through the faults committed by the public authorities ;

in the alternative , to call for an expert opinion in order to determine the extent of the damage sustained by Editions LOC . "

The defendant , the Prime Minister , filed a memorial on DATE contending that the application should be dismissed . The Minister for ORG and the Junior Minister for ORG did likewise on DATE and DATE .

On DATE Editions Périscope submitted a memorial ( mémoire ampliatif ) which it supplemented on DATE ; it had requested extensions of the time - limit on DATE and DATE in order to obtain new documents .

On DATE the Deputy Minister for ORG confirmed his earlier submissions .

In a further memorial registered on DATE , the applicant company stated inter alia as follows :

" Hitherto , only the Minister for Finance has replied to the memorial of DATE by a memorial of DATE .

It is clear that the administrative authorities in question are abusing their privileged position to delay for as long as possible the conclusion of the trial ... .

This abuse is all the more patent because these authorities possess resources in material and staff which enable them to comply with reasonable time - limits for replying . "

Consequently , it asked the court " [ to ] take formal note of its protests against the dilatory lack of response from the defendant authorities and [ to ] order them to reply within a very short period to the company ’s memorials of DATE and DATE " .

On DATE the Prime Minister declared that he did not wish to alter his submissions of CARDINAL DATE and endorsed the observations of the Deputy Minister for ORG and those of the Secretary of ORG for ORG .

Editions LOC then submitted yet another memorial , the fourth , lodged on CARDINAL DATE :

" The failure of the Minister for Finance and the Junior Minister for ORG to reply shows that they have no additional arguments to put forward in respect of the explanations and documents produced on DATE and DATE by the applicant company .

In these circumstances , [ the said company ] asks ORG to regard the written investigation proceedings as concluded and to fix a date for a hearing to examine the dispute ... "

It submitted CARDINAL further memorials on DATE and CARDINAL DATE .

The first contained the following conclusion :

" The silence on the part of the Minister for Posts following DATE of the company ’s memorials , the Prime Minister ’s letter of CARDINAL DATE endorsing the memorials of the other ministers , the reiteration by the Minister for ORG arguments put forward by the Minister for Finance , the total absence of discussion by the defendants of the damage , the time - limits which have expired , all show that the ORG has concluded its defence submissions .

In these circumstances the applicant company requests ORG to fix as soon as possible the date for the examination of the application which was lodged DATE . "

The second ended as follows :

" LOC notes that the defendants have all stated that they wished to reiterate their previous arguments . They have thus concluded their submissions .

The company ... therefore again requests ORG to hold a hearing in the near future to examine the case , while reserving the right to make oral submissions through its counsel . "

In addition , on DATE , the lawyer for PERSON wrote to the President of ORG to ask him to set the date for the hearing . It was , he stated , " unacceptable ... that the authorities [ should be able ] to delay indefinitely the conclusion of the proceedings , to the plaintiff ’s detriment " .

The Minister for the ORG filed a supplementary memorial on DATE , as did the Junior Minister for Posts and Telecommunications on DATE . Furthermore , on DATE , the latter indicated that he wished to abide by his previous submissions " in every respect " .

After a public hearing held on DATE , ORG dismissed the application on DATE on the following grounds :

" The application by the company , Editions LOC , requests the court to find that the ORG is liable for the damage caused to the applicant by the discrimination operated by the relevant authorities in favour of competing undertakings in respect both of the postal charges and of the tax concessions , without also according them to the applicant , despite its repeated requests , to order the ORG to pay on these grounds compensation of MONEY and , in the alternative , to call for an expert opinion to determine the extent of the damage sustained ;

If the applicant company wished to rely on the unlawfulness of the refusal to register it on the list of publications qualifying for the above - mentioned advantages [ tax concessions ] , it should have challenged , in good time , the tax demands which it considered to have been made in disregard of the exemption laid down in LAW ; it can no longer call in question such demands by means of an action for damages brought against the Minister for the ORG since it has not established the unlawfulness of the refusals ;

For their part , the postal authorities did not commit a fault capable of giving rise to liability on the part of the ORG by not according to the applicant special postal rates inasmuch as it follows from LAW of ORG that the application of such rates is conditional on the production of a registration certificate issued by ORG ... ; the applicant should , if it believed that it was entitled to , have challenged within the prescribed period of DATE the lawfulness of the refusal ; the investigation has shown that the attention of the company ’s directors was drawn in vain on various occasions to the difference in the structure of its review in relation to the competing reviews and to the changes which it would have to make in order to qualify for the fiscal status accorded to the press ;

The allegation that various competing undertakings had unduly benefited from the advantages in question , even supposing that it were established , which the investigation has not shown , is not such as to constitute an infringement of the principle of equal treatment by the public authorities ;

By an appeal filed on DATE , Editions Périscope requested the PERSON d’État to " set aside the contested judgment [ of ORG ] , order the ORG to pay it a sum of MONEY in damages and , in the alternative , order an expert examination for the purposes of determining the extent of the damage which had been caused to it by the discriminatory measures of which it had been victim " .

The case , whose file ORG had forwarded to the ORG d’État on CARDINAL DATE , was assigned to the tenth section of the judicial division on DATE .

Editions LOC filed a memorial on DATE . On DATE it drew attention to a typing error in its text .

The file was communicated in CARDINAL members of the Government : the Minister for ORG , from CARDINAL DATE to CARDINAL DATE ; the Deputy Minister to the Minister for ORG , with responsibility for ORG , from CARDINAL DATE to CARDINAL DATE , the ORG d’État having requested its return on CARDINAL DATE ; the Junior Minister attached to the Prime Minister ’s office , with responsibility for ORG , from DATE to CARDINAL DATE .

On DATE the first of the above officers requested an additional time - limit to submit his memorial , which he did on DATE .

The second filed his memorial on DATE , after having indicated on DATE of DATE that he intended to " reply very shortly " .

The third had lodged his memorial on DATE .

The applicant company filed a further memorial on DATE and produced documents on DATE .

On DATE the file was entrusted to a junior member of the section , who gave his report on DATE .

The investigation session was held on DATE and the case was entered on the list of the tenth and seventh sections combined , for hearing on DATE .

The ORG d’État dismissed the appeal by a judgment of CARDINAL DATE on the following grounds :

By virtue of the provisions of LAW DATE , as amended by LAW DATE , ORG ... is responsible for giving an opinion on the application of statutory instruments and regulations providing for concessions accorded to the press with regard to taxes , postal charges and customs duties ; pursuant to LAW , the [ ORG is to examine whether the publication appears to satisfy the conditions laid down in these provisions and , if it does , to issue to the publication a registration certificate , which must be produced in support of any application for tax concessions and postal charge reductions ; the refusal to grant a registration certificate constitutes an opinion to this effect which precludes the relevant administrative authority from granting the concessions sought ;

By decisions dated DATE , CARDINAL DATE and CARDINAL DATE , ORG ... refused to issue the registration certificate to the review ‘ PERSON du PERSON , relying on the provisions of LAW , of Annex III to LAW , which , in the version applicable at the material time , excluded from the exemption provided for in the provisions of CARDINAL of [ paragraph ] CARDINAL of Article CARDINAL of the same Code newspapers or periodical publications regarded as equivalent to ‘ publications whose principal purpose is to promote or to develop transactions of commercial , industrial , banking , insurance or other undertakings for which they are in reality vehicles for publicity or ORG ;

Firstly , it appears from the investigation , and it is moreover not in dispute , that the DATE review ‘ PERSON du PERSON was a publication of the type referred to in the above - mentioned provision of LAW to LAW , having regard in particular to its contents and to the proportion of its surface which it devoted to advertising or articles equivalent to advertisements ; the decision not to issue a registration certificate was accordingly well - founded ;

Secondly , although the advantages refused to the ‘ Périscope de l’usine et du PERSON were accorded to publications which it claims were its competitors , it has not been established in any way , contrary to what the applicant company alleges , that these publications could , in terms of their editorial characteristics and the proportion of advertising carried , be classified as ‘ vehicles for publicity or ORG , within the meaning of the above - mentioned provision of LAW , thereby justifying a refusal to accord to them the benefit of the concessions to the press ; it follows that the applicant company is in any event not entitled to claim that the [ ORG committed a fault capable of giving rise to liability on the part of the ORG by unlawfully granting other reviews comparable , in the appellant company ’s opinion , to that which it publishes , the certificate which was refused to it ;

It follows from the foregoing that there is no basis for the limited company Editions LOC ’s complaint against the contested judgment by which ORG dismissed its claim for compensation . "