CASE OF NEJDET ŞAHİN AND PERİHAN ŞAHİN v. TURKEY

András Sajó;Anatoly Kovler;Ann Power-Forde;Christos Rozakis;Corneliu Bîrsan;David Thór Björgvinsson;Dean Spielmann;Egbert Myjer;Elisabet Fura;Françoise Tulkens;George Nicolaou;Guido Raimondi;Ireneu Cabral Barreto;Jean-Paul Costa;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nicolas Bratza;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicants were born in DATE and DATE respectively and live in GPE .

Their son , an army pilot , died on DATE , when his plane crashed near the village of ORG ) while transporting troops from GPE to GPE . CARDINAL other servicemen died in the same accident , CARDINAL of them also members of the plane ’s crew .

On DATE the applicants applied , through their lawyer , to ORG to award them the pension payable under section CARDINAL of Law no . CARDINAL , LAW ( hereinafter “ Law no . ORG ” ) .

NORP In a letter dated DATE ORG noted that the applicants had been awarded , inter alia , a DATE war disability pension under section CARDINAL of Law no . DATE , as well as a lump sum equal to CARDINAL times the highest salary of a public servant . It further noted that their son ’s death had not been caused by an act of terrorism within the meaning of PERSON no . ORG but by the fact that , for an unknown reason , his plane had crashed . It was therefore not possible to increase their DATE invalidity pension to the level of the DATE salary paid to an equivalent serving member of the military .

On DATE the applicants appealed , through their lawyer , to ORG against that decision . They submitted , in particular , that their son had died while transporting troops engaged in the fight against terrorism from northern GPE , so his death should be considered to have occurred in the context of the fight against the terrorism .

On DATE the CARDINALth Chamber of ORG rejected their appeal as being outside its jurisdiction , considering that it was rather a matter for ORG . Referring to a judgment of ORG of DATE ( E.CARDINAL/CARDINAL , PERSON ) , it held :

“ ... to determine whether the administrative act is “ linked to military service ” and decide which court has jurisdiction , the object of the act must be examined . If the act was done in keeping with military requirements , procedure and practice , it must be considered to be linked to military service ... Whether or not a non - military authority was at the origin of the act is of no consequence – ORG is the ORG responsible for examining a case [ brought by ] a member of the armed forces . In the present case the issue is an application for a DATE pension made by the claimants under PERSON no . CARDINAL ... To determine whether the claim falls within the scope of that PERSON , regard must be had to ... the purpose of the military service and the specificity of the locations where it is effected , as well as military aptitude , to show that the impugned act was done in keeping with military needs , procedure and practice .

Where this is the case ... it is for ORG to examine and resolve the dispute .

This was , moreover , the line of reasoning of ORG decision no . E : CARDINAL , K : CARDINAL , published in ORG ... of CARDINAL . ”

On DATE the applicants brought their case before ORG . In their statement of claim they included a decision adopted by ORG on DATE ( E.CARDINAL/CARDINAL , K.CARDINAL/CARDINAL ) in what they considered a similar case ( see paragraph CARDINAL below ) .

On DATE ORG rejected their claim . First of all , it observed that the applicants had been awarded a DATE war disability pension as well as a lump sum equal to CARDINAL times the highest salary of a public servant , calculated in accordance with additional section CARDINAL to PERSON no . DATE and readjusted in accordance with LAW . CARDINAL . It then noted that their request to have their DATE pension increased to the level of that paid to an equivalent serving member of the military had been rejected by the competent authorities . It pointed out that entitlement under LAW of PERSON no . ORG was restricted to cases where an agent of the ORG had been directly wounded , disabled or killed as a result of acts of terrorism . It considered that the mere fact that the victim had been employed in work connected with the fight against terrorism did not suffice . As the deceased had not been killed by an act of terrorism , the impugned administrative act was not unlawful .

One of the judges expressed a dissenting opinion in which he criticised such a restrictive interpretation of PERSON no . ORG . Pointing out that it was not disputed that the applicants’ son had died in a plane crash while co - piloting a plane carrying troops returning from an anti - terrorism operation , he considered that the crux of the matter was whether the death fell within the scope of LAW of PERSON no . ORG . In his opinion , in view of the purpose of the deceased’

On DATE the applicants lodged an appeal against the judgment of ORG . In his pleadings their lawyer explained that in his submissions of DATE and at the hearing before ORG DATE he had produced CARDINAL decisions adopted by the ordinary administrative courts , namely DATE of ORG , concerning applications similar to the applicants’ , lodged by CARDINAL families of servicemen who had died in the same accident as their son ; in those decisions the ORG had found in favour of the claimants . He complained that ORG had made no reference to those cases , and argued that the solution adopted was contrary to the constitutional principles of equality before the law and consistency of the law .

In a judgment of DATE ORG rejected the ORG appeal as being ill - founded and found the impugned judgment to be in conformity with the law and the requisite procedure . That judgment was served on the ORG lawyer . The postmark on the envelope was dated DATE .

GPE ’s judicial system breaks down into CARDINAL categories : the ordinary courts , which include civil and criminal courts ; the administrative courts and the military courts . These categories in turn break down into subdivisions according to the subject at issue . These CARDINAL branches of courts are each headed by their own ORG : ORG for the ordinary law courts , ORG for the administrative courts and ORG and ORG for military matters .

NORP Under the provisions of LAW , ORG is the body which judicially examines at first and last instance disputes arising from administrative decisions and acts concerning either military personnel or military service , even where they emanate from non - military authorities . Where the dispute concerns compulsory military service , the interested party does not have to be a member of the military .

A special court called ORG has the power to settle conflicts that may arise between the ordinary , administrative and military courts concerning their jurisdiction and decisions ( LAW ) .

Section CARDINAL of Law no . CARDINAL of DATE ( the Anti - Terrorism Act ) reads as follows :

“ The provisions of PERSON no . CARDINAL on pecuniary compensation and DATE pension rights apply to public employees who are wounded or disabled , or die or are killed as a result of terrorist acts , in the performance of their duties , inside and outside the country , or , if they were no longer in active service , because of their [ former ] duties . ... ”

NORP The relevant provisions of LAW . CARDINAL of DATE ( which entered into force on DATE ) on the creation and operation of ORG , read as follows :

“ A conflict of jurisdiction is raised when ORG concerned asks ORG to examine a question of jurisdiction following the rejection of an objection of lack of jurisdiction in a dispute before the ordinary , administrative or military courts ... ”

“ There is a positive conflict of jurisdiction when cases in which the parties , subject and cause of action are the same are lodged with CARDINAL different types of court – ordinary , administrative or military – and each court adopts a decision whereby it considers that it has jurisdiction to hear the case . ”

“ There is conflict of judgments when the enforcement of a right is rendered impossible by a divergence between the final decisions adopted by CARDINAL of the courts referred to in DATE , provided that those decisions concern the same subject and the same cause of action – but not matters of jurisdiction DATE and that CARDINAL of the parties [ to the case ] is the same ... ”

“ ORG immediately gives notice of all the conclusions reached in its decisions to the various ORG concerned , the court which applied to it to settle the conflict of jurisdiction , the court or courts awaiting its decision and the persons or bodies that requested settlement of the conflict . The courts concerned , as well as all the authorities , bodies and persons concerned , must abide by the decisions of ORG and apply them without delay . ”

“ The decisions of the sections and the full court are final . Decisions of principle and decisions of the sections deemed pertinent by the President shall be published in ORG . ”

“ Conflicts between decisions of the sections of ORG shall be settled by decisions of principle of the full court ... decisions of principle in matters of jurisdiction are binding on ORG and all judicial bodies ; decisions of principle on the substance delivered in cases of conflicting judgments are binding only on ORG . ”

Apart from the action brought by the applicants , CARDINAL actions under PERSON no . ORG were brought before the domestic administrative courts by the families of victims of the plane crash of CARDINAL DATE following the rejection of their claims by ORG .

In CARDINAL cases , CARDINAL of which concerned close relatives of the plane ’s crew members , the appeals were heard by ORG , which ruled in favour of the GPE families . On DATE ( decision ORG , K.CARDINAL/CARDINAL ) , CARDINAL DATE ( decision E.CARDINAL/CARDINAL , K.CARDINAL/CARDINAL ) , DATE ( decision ORG , K.CARDINAL/CARDINAL ) and DATE ( decisions E.CARDINAL/CARDINAL , K.CARDINAL/CARDINAL and E.CARDINAL/CARDINAL , K.CARDINAL/CARDINAL ) , DATE ( decisions E.CARDINAL/CARDINAL , K.CARDINAL/CARDINAL and E.CARDINAL/CARDINAL , ORG ) , CARDINAL and DATE ( decisions E.CARDINAL/CARDINAL , PERSON and E.CARDINAL/CARDINAL , NORP ) , CARDINAL and DATE ( decisions CARDINAL , K.CARDINAL/CARDINAL and ORG , K.CARDINAL/CARDINAL ) , CARDINAL DATE ( E.CARDINAL/CARDINAL , K.CARDINAL/CARDINAL ) and DATE and DATE ( E.CARDINAL/CARDINAL , K.CARDINAL/CARDINAL and E.CARDINAL/CARDINAL , GPE ) , different chambers of ORG ( DATE , CARDINALth , CARDINALth , CARDINALth , CARDINALth , CARDINALth and CARDINALth Chambers ) adopted judgments in which they acknowledged that the circumstances of the plane crash fell within the scope of PERSON no . ORG .

NORP In particular , on DATE ( decision E.CARDINAL/CARDINAL , K.CARDINAL/CARDINAL ) , in response to an appeal to set aside the decision of the pension fund to refuse an application filed by the parents of the deceased pilot to receive the supplementary pension provided for in PERSON no . ORG , the CARDINALth Chamber of ORG pronounced a judgment which included the following passages :

“ ... After examination of the file , [ it appears ] that ... the PERSON son was the pilot of the aircraft ... whose job it was to transport special troops on a mission against the separatist terrorist organisation ORG , together with their weapons and equipment , to the operation zone and also to take troops leaving that zone back to their units . ... He died on DATE , when his plane crashed during that mission . After the accident the claimants were awarded a DATE war disability pension under section CARDINAL of PERSON no . CARDINAL ... Considering that their son ’s death fell within the scope of PERSON no . ORG , they applied for a DATE pension under that PERSON ... They brought the present action following the authorities’ refusal of that application ...

Examination ... of the above - mentioned legal provisions and the case file reveals that the PERSON son was killed on DATE when the aircraft in which he was transporting troops back from an anti - terrorist mission crashed . The mission in question was clearly part of the fight against terrorism ... accordingly , the impugned administrative act must be set aside ... ”

Each time an appeal was lodged with it against the above - mentioned judgments of ORG , ORG upheld the approach of the first - instance court ( decisions E.CARDINAL/CARDINAL , K.CARDINAL/CARDINAL ; LAW , ORG ; E.CARDINAL/CARDINAL , ORG ; E.CARDINAL/CARDINAL , K.CARDINAL/CARDINAL ; E.CARDINAL/CARDINAL , K.CARDINAL/CARDINAL ; E.CARDINAL/CARDINAL , ORG ; E.CARDINAL/CARDINAL , K.CARDINAL/CARDINAL ; E.CARDINAL/CARDINAL , K.CARDINAL/CARDINAL ; E.CARDINAL/CARDINAL , DATE ; PERSON , K.CARDINAL/CARDINAL ; E.CARDINAL/CARDINAL , K.CARDINAL/CARDINAL ; E.CARDINAL/CARDINAL , K.CARDINAL/CARDINAL ; E.CARDINAL/CARDINAL , PERSON ) .

On DATE , referring to ORG decision of DATE ( E.CARDINAL/CARDINAL , PERSON – see paragraph CARDINAL below ) , ORG of ORG held that it did not have jurisdiction to hear an appeal , lodged by the family of a sergeant who died in the same plane crash , to set aside the pension fund ’s decision rejecting their claim for a DATE pension under PERSON no . ORG ( decision E.CARDINAL/CARDINAL , GPE ) . The case was brought before ORG , which , in a judgment of CARDINAL DATE , dismissed the appeal , finding that the deceased had not been a victim of terrorism ( decision E.CARDINAL/CARDINAL , K.CARDINAL/CARDINAL ) . On DATE it dismissed a subsequent appeal against that judgment ( decision E.CARDINAL/CARDINAL , ORG ) .

On DATE the deceased ’s widow filed another application with the pension fund for the DATE pension provided for under PERSON no . ORG , in her own name and on behalf of her son . The application was rejected and an appeal was lodged with ORG of ORG , which that court rejected on DATE , finding that it lacked jurisdiction ( E.CARDINAL/CARDINAL , K.CARDINAL/CARDINAL ) . In its reasoning it referred to a judgment of ORG of DATE ( E.CARDINAL/CARDINAL , K.CARDINAL/CARDINAL DATE see paragraph CARDINAL below ) .

On DATE , in response to a request to settle a conflict between the solutions adopted respectively by the ordinary administrative courts and ORG , which had reached different conclusions in a matter concerning similar points of fact and law , ORG adopted a decision ( E.CARDINAL/CARDINAL , ORG ) which included the following reasoning :

“ The first paragraph of section CARDINAL of Law no . DATE on the creation and operation of a ORG , as amended by Law no . CARDINAL , stipulates : “ There is conflict of judgments when the enforcement of a right is rendered impossible by a divergence between the final decisions adopted by CARDINAL of the courts referred to in DATE , provided that those decisions concern the same subject and the same cause of action – but not matters of jurisdiction DATE and that CARDINAL of the parties [ to the case ] is the same .

By virtue of this provision , in order for there to be conflict of judgments all the following conditions must be met cumulatively : ( a ) the decisions at the origin of the conflict must have been adopted by CARDINAL [ different ] courts from among the ordinary , military or administrative courts ; ( b ) the subject matter , the cause of action and CARDINAL of the parties must be the same ; ( c ) the CARDINAL decisions must be final ; ( d ) the decisions must rule on the merits of the case ; and ( e ) the enforcement of the right must have been made impossible by the divergence between the decisions .

Examination of the decisions alleged to be in conflict reveals that they are judgments pronounced by the ordinary administrative courts and the military administrative court , in which , objectively , the subject matter and the cause of action , while based on different material facts , are identical , and CARDINAL of the parties ( the respondent administrative authority ) is the same ; the judgments in question have become final after the exhaustion of the appeals process , and they both rule on the merits . That being so , it is established that the first CARDINAL conditions required under section CARDINAL in order for there to be conflict of judgments have been met .

As to whether the result in the instant case has been to render impossible the enforcement of a right ... , in situations where it is impossible for a person to secure the enforcement of a right because of conflicting judgments delivered by CARDINAL different courts , section CARDINAL leaves it to ORG to settle the matter ...

... the administrative court ’s judgment setting aside the earlier decision does not affect the judgment of ORG dismissing the application ; the respondent administrative authority , which had to annul the measure in the light of the administrative court judgment in favour of ORG and ORG , is under no obligation to execute that judgment in respect of PERSON , who was not party to those proceedings . As the action brought by PERSON was dismissed , PERSON can not be considered to have a right recognised by a judicial decision .

... the claimant can not claim to have a right recognised by a judicial decision , so her application must be dismissed pursuant to section CARDINAL of Law no . DATE , as the condition that it is “ impossible to enforce the judgment ” , required for there to be a conflict of judgments , has not been established .

On DATE ORG adopted a decision ( no . E.CARDINAL/CARDINAL , PERSON ) , the relevant passages of which read as follows :

“ ... Summary : The application to set aside the pension fund ’s decision rejecting a claim for a disability pension ... filed by a person declared by a medical report to be unfit for military service , who considered that his health problem had been caused by his military service , is a matter for ORG to resolve .

The merits : ... Under LAW , ORG , although instituted by non - military authorities , is the court of first and final jurisdiction for the judicial review of disputes arising from administrative acts or conduct linked to military service and concerning military personnel . However , it has been established that for disputes arising out of military obligations , it is not necessary to determine whether the person concerned was a member of the armed forces . ... In order for ORG to be able to examine a case , the impugned administrative act must concern a “ member of the armed forces ” and be “ linked to military service ... ”

To determine whether the administrative act is “ linked to military service ” and decide which court has jurisdiction , the subject matter of the act must be examined . If the act was adopted in keeping with military traditions , principles and practice , it must be considered to be linked to military service ... More specifically , administrative acts linked to military service are those related to the capabilities ... of military personnel , their attitude and conduct , their military career , their rights and obligations as members of the military , the purpose of the military service and the specificity of the locations in which they serve . Whether or not a non - military authority was at the origin of the act is of no consequence – ORG is the court responsible for examining a case [ brought by ] a member of the armed forces who has been deprived of an advantage .

... where the administrative act concerns a member of the military and is linked to military service , it is for ORG to examine and settle the dispute . ”

On DATE ORG adopted a decision ( E.CARDINAL/CARDINAL , K.CARDINAL/CARDINAL ) in which it determined which court had jurisdiction to hear disputes concerning pecuniary compensation under PERSON no . ORG . The relevant passages read as follows :

“ The facts : The PERSON son ... died on DATE in the accident at ORG , when the troop transport plane flying him from ORG to GPE after a mission in the state of emergency region crashed ...

In the proceedings lodged by the claimants following the pension fund ’s refusal to award them a pension [ although ] they alleged that the death had occurred in the course of duties that fell within the scope of LAW . CARDINAL and ORG , ORG of ORG dismissed the application in a decision of CARDINAL/CARDINAL/CARDINAL ( PERSON , PERSON ) , considering that what had happened had not been the result of terrorist acts . On appeal , ORG of ORG , in a judgment of DATE ( E : CARDINAL , K : CARDINAL ) , set aside the lower court ’s decision , considering that the court should have acknowledged the claimant ’s entitlement to the rights governed by LAW . CARDINAL and ORG , his son ’s death having been attributable to terrorist acts . The case was referred back to the lower court , which persisted in its decision , following which ORG , sitting in plenary , upheld the decision of the CARDINALth ORG in a judgment of CARDINAL/CARDINAL/CARDINAL ( E : CARDINAL , K : CARDINAL ) and again set aside the lower court ’s decision ...

Although the claimants applied to ... the respondent administrative authority for pecuniary compensation after ORG , sitting in plenary , confirmed that their son ’s death fell within the scope of LAW . CARDINAL and ORG , they received no reply .

... on DATE the interested parties appealed to the ordinary administrative courts to set aside the administrative authority ’s implicit rejection ... The respondent administrative authority filed an objection for lack of jurisdiction , alleging that ORG had jurisdiction ... In a decision of DATE ORG dismissed that objection and declared that it did have jurisdiction . ... The respondent administrative authority filed an application to have the matter of jurisdiction settled ...

ORG at ORG ... considers that the dispute ... lies within the jurisdiction of ORG , and that the decision of ORG of ORG concerning jurisdiction should be set aside ... ORG at ORG ... argues that the dispute ... is a matter for the ordinary administrative courts ...

... [ in so far as ] , when it examined whether the death of the PERSON son , a serviceman , occurred because he was a victim of terrorist acts within the meaning of PERSON no . ORG , or in the course of duties covered by PERSON no . CARDINAL or as a result of such duties , or , as in this case ... when it reviewed the [ rejection ] measure , the pecuniary compensation board took into account the serviceman ’s military aptitudes ... , his conduct ... , his military career , his rights and duties as a serviceman , the purpose of the military service , the specificities of the locations of the military missions , and military regulations and traditions ; and [ in so far as , ] in the present case , the condition that the administrative act must be linked to military service is fulfilled , ORG has jurisdiction in the matter at the origin of the dispute ... ”

In some NORP countries there is only one ORG . This approach is found in “ common law ” countries like GPE , GPE and GPE , but also in GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE . Other countries , like GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , “ the Former GPE ” , GPE , the GPE , GPE , GPE , GPE , GPE and GPE , have CARDINAL or more supreme courts .

In many of these countries the law does not provide for any means of settling possible conflicts of case - law between the supreme courts , but only for means of resolving possible conflicts of jurisdiction . The authority responsible for settling such conflicts may be a court or a division of a court specially vested with this power ( GPE , GPE , GPE , GPE , GPE ) . In GPE the law confers this power on ORG ; in GPE and GPE , on ORG , and in GPE , on ORG . In GPE there is no judicial authority responsible for settling conflicts of jurisdiction . Lastly , only a small number of countries have courts tasked with resolving conflicts of case - law between supreme courts ( GPE , GPE and GPE ) . In GPE the legislation provides for an a posteriori means of resolving conflicts .


Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy

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

The applicant was born in DATE and lives in GPE .

In the context of an inheritance dispute , in DATE the applicant brought an action before the NORP ORG . On DATE the case was transferred to the NORP Pest Central District Court .

On DATE the procedure was interrupted after a few hearings because the applicant did not identify the successor of CARDINAL of the respondents who had died .

As of DATE , sections DATE and CARDINAL/B of the Code of Civil Procedure provided a first instance remedy and appeal for complaints about the undue length of civil proceedings . The courts dealing with such complaints , if well - founded , are expected to order measures to facilitate the progress of the litigation at issue .


Preliminary objections joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies;Six month period);Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention;Article 5-1-e - Persons of unsound mind);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

In the period DATE and DATE the applicant had in - patient treatment in ORG ( “ the hospital ” ) which is a ORG - run institution . In DATE she was registered with LOC ( “ the psychoneurological dispensary ” ) as a person with potential mental problems .

On DATE the applicant was assessed by a doctor at the psychoneurological dispensary and referred to the hospital for in - patient treatment for a serious mental disorder . However , the applicant ignored the referral and stayed at home with her mother . A report of the applicant ’s assessment was provided to the hospital .

In DATE the applicant ’s condition worsened and her behaviour became aggressive towards her mother and neighbours . The mother and the housing maintenance authority therefore complained to the hospital about the applicant ’s conduct .

In TIME CARDINAL DATE the applicant was taken to the hospital by ambulance and was assessed by a psychiatrist of the hospital , who concluded that she needed to be hospitalised for a serious mental disorder . The applicant was therefore kept in the hospital .

On DATE a panel of CARDINAL different psychiatrists of the hospital assessed the applicant once again and issued a report stating that she was a danger to society due to her serious mental disorder , which required in - patient psychiatric treatment . The psychiatrists specified in the report that the applicant ’s manner of communication with her mother and neighbours was aggressive ; she threatened them , threw glass jars , bottles and vases off the balcony , which was on the fifth floor , played loud music at TIME and damaged property in the apartment .

The hospital therefore lodged an application with a local court , seeking authorisation for compulsory admission to hospital in accordance with sections DATE and CARDINAL of LAW .

On DATE a judge at the local court conducted an onsite hearing of the applicant ’s case in the administration wing of the hospital . The hearing was held in the presence of a prosecutor and CARDINAL of the doctors who had assessed the applicant earlier . Following the hearing the court allowed the application and held as follows :

“ ... having examined the case file and heard a representative of [ the hospital ] and a prosecutor , the court considers that the application in question should be allowed .

It appears from the case file that the patient was taken from home to [ the hospital ] by the ambulance after showing signs of mental illness which suggested that she was a danger to society .

A panel of psychiatrists [ of the hospital ] has concluded that the patient should have in - patient treatment .

Relying on LAW and LAW , the court

has decided that

[ M. ] should be compulsorily hospitalised to undergo medical treatment .

The decision shall not be subject to appeal . ... ”

On DATE the compulsory treatment was completed and the applicant was discharged from the hospital .

According to the applicant , the sanitary and hygienic conditions in which she was kept in the hospital were unsatisfactory .

On DATE the applicant was assessed by a doctor at the psychoneurological dispensary and referred to the hospital for in - patient treatment for a serious mental disorder . The applicant refused the proposed treatment and stayed at home . A report of the assessment of the applicant was sent to the hospital .

After the assessment , the applicant ’s condition worsened in a similar way as before the second hospitalisation and the neighbours and the housing maintenance authority complained to the hospital about her behaviour .

In TIME of DATE the applicant was taken to the hospital by ambulance and assessed by a psychiatrist there , who concluded that she was suffering from a mental disorder and needed to be hospitalised . The applicant was therefore kept in the hospital .

On DATE a panel of CARDINAL psychiatrists of the hospital , including the psychiatrist who had assessed the applicant DATE , issued a report stating that the applicant was a danger to society due to her serious mental disorder and that she needed in - patient treatment . The hospital therefore applied to the court for an order for compulsory admission .

On DATE the local court allowed the application , following an on - site hearing held in the administration wing of the hospital . The hearing was attended by the prosecutor and CARDINAL of the psychiatrists who had previously assessed the applicant . The court held as follows :

It appears from the case file that on DATE the patient was taken from home to [ the hospital ] by ambulance after showing signs of a serious mental disorder . For this reason a panel of psychiatrists found that the applicant was a danger to society and should be compulsorily admitted to [ the hospital ] for in - patient treatment .

The representative of [ the hospital ] has submitted that the patient should be admitted to the hospital and treated for a serious mental disorder .

Having regard to all the circumstances , the court comes to the conclusion that the patient ’s compulsory hospitalisation is required .

Relying on LAW and LAW , the court

has decided that

On DATE the applicant was discharged from the hospital on completion of the treatment .

On DATE the applicant was assessed by a doctor at the psychoneurological dispensary , who concluded that the applicant ’s mental disorder had recurred .

On DATE the applicant made a written application for admission to the hospital for treatment . The application was signed only by the applicant . According to the applicant , she had been compelled to do so under the threat of never being discharged from the hospital . She had been in poor health , mentally and physically , that day .

Subsequently , the application was marked and signed by a member of hospital staff , designating the department of the hospital to which the applicant was to be assigned .

According to the applicant , the regime under which she was kept in the hospital was strict , as she had to stay in the hospital for DATE ; her movements within the premises of the hospital were restricted ; and her personal belongings were limited in number and inventoried .

On DATE the applicant was discharged from the hospital .

On an unspecified date the applicant instituted civil proceedings in the ORG of GPE against ORG , seeking reinstatement in the position of doctor and payment of salary arrears .

On DATE the court rejected her claim as unsubstantiated . On DATE the NORP ORG upheld that judgment .

On the expiration of the time - limit the applicant lodged an appeal on points of law with ORG against the judgment of DATE . The applicant did not request ORG to extend the timelimit .

On DATE ORG declared the applicant ’s appeal inadmissible as submitted out of time .

The relevant provisions of the LAW read as follows :

“ Human and ORG rights and freedoms are protected by the courts .

Everyone is guaranteed the right to challenge in court the decisions , actions or omissions of bodies of ORG power , bodies of local self - government , officials and officers . ...

Everyone has the right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law . ”

Article CARDINAL of the Code of Civil Procedure of DATE ( in force until DATE ) provided that a court decision had to be lawful and substantiated . The courts had to substantiate their decision with the pieces of evidence they had examined during the court hearing .

Article CARDINAL - CARDINAL of that Code provided that that anyone who considered that his or her rights or freedoms had been infringed by a decision , act or omission of a State body , legal entity or official could lodge a complaint with a court .

The Code of Civil Procedure of DATE provides in Section XI , “ Final and transitional provisions ” , as follows :

“ CARDINAL . This Code shall enter into force on DATE ...

[ The following normative acts ] shall be repealed with the entry into force of this Code :

The Code of Civil Procedure of DATE ... ”

“ CARDINAL . The role of the administrative justice system shall be the protection of the rights , freedoms and interests of physical persons , and the rights and interests of legal entities in the field of public - law relations , from violations by public authorities ...

Any decisions , actions or inaction on the part of public authorities may be appealed against in administrative courts , except for cases in which the LAW and laws of GPE foresee a different procedure of judicial appeal against such decisions , actions or inactivity ... ”

“ CARDINAL . The terms listed below shall have the following meaning :

CARDINAL ) NORP the administrative jurisdiction case ( hereinafter ‘ the administrative ORG ) DATE a public - law dispute , referred to an administrative court , in which one of the parties shall be a body of the executive power , local self - governance , its official or the other subject empowered to perform public administrative functions on the basis of legalisation , including those aimed at the exercise of delegated powers ;

“ CARDINAL . The jurisdiction of the administrative courts shall cover legal relationships arising in the course of the exercise of public administrative powers by the subjects of public authority and [ legal relationships arising ] in the course of public formation of a subject of public authority by way of election or referendum .

The relevant extracts from the LAW read as follows :

“ A person shall be hospitalised in a mental health facility voluntarily , either at his or her request or with his or her conscious agreement . ... Consent to hospitalisation shall be included in the medical documentation following the signature of the person concerned or his or her legal representative and a psychiatrist . ”

“ A person who is suffering from a mental disorder may be hospitalised in a mental health facility without his or her conscious agreement or without the agreement of his or her legal representative if the medical examination or treatment of that person is possible only within the mental health facility and if , as a result of the serious mental disorder , such a person :

commits or expresses real intentions to commit acts which are directly dangerous to this person or to others ; or

is unable to meet his or her vital needs at the basic level . ”

“ A person who has been hospitalised in a mental health facility upon a decision of a psychiatrist on the grounds provided for in section CARDINAL of this Act , shall be assessed , within TIME , by a panel of psychiatrists of the mental health facility to determine whether the hospitalisation is required . If the hospitalisation is found to be unnecessary and the person concerned does not wish to stay in the mental health facility , he or she shall be immediately discharged .

If compulsory hospitalisation of the person is required , a representative of the mental health facility in which the person is being kept shall apply , within TIME , to the court ... for compulsory hospitalisation of the person on the grounds provided for in section QUANTITY . ... ”

A person shall be compulsorily retained in a mental health facility exclusively for the period when the grounds justifying his or her hospitalisation exist .

A person , who has been compulsorily hospitalised in a mental health facility shall be assessed by a panel of psychiatrists at least once DATE to determine whether the person should remain in hospital or be discharged .

If compulsory hospitalisation is required for DATE , a representative of the mental health facility shall apply to the court ... seeking an extension of the compulsory hospitalisation . A report of a panel of psychiatrists giving grounds for an extension of the hospitalisation shall be enclosed with the application ... The person ’s hospitalisation may subsequently be extended , on each occasion for a period which does not exceed DATE .

A person subjected to compulsory hospitalisation or his or her legal representative shall be entitled to lodge requests with a court for termination of the compulsory hospitalisation DATE , starting from the date of the court decision extending the hospitalisation . ”

“ A person shall be discharged from a mental health facility when the assessment or expert examination of his or her mental state has been completed , or when he or she has recovered from the illness , or when his or her mental state has changed to the extent that any further in - patient treatment is no longer required . A person who was voluntarily admitted shall be discharged upon written application by that person or his or her legal representative or upon a decision of a psychiatrist .

The discharge of a person who was voluntarily hospitalised may be refused if a panel of psychiatrists finds grounds for compulsory hospitalisation of the person as provided for in section CARDINAL of this Act . In this event procedures for compulsory hospitalisation , continuation of the hospitalisation and discharge shall be conducted as provided for in sections CARDINAL , DATE and DATE ( paragraphs CARDINAL and CARDINAL ) of this LAW and paragraph CARDINAL of this section .

A person subjected to compulsory hospitalisation shall be discharged upon a decision of a panel of psychiatrists or a court decision refusing extension of the hospitalisation . ... ”

“ ... An application by a representative of a mental health facility for compulsory hospitalisation of a patient shall be examined by a court ... within TIME of receipt of the application . ...

Cases concerning compulsory provision of psychiatric assistance shall be examined in the presence of the person concerned . A prosecutor , a legal representative of the person concerned and either a psychiatrist or a representative of the mental health facility shall participate in the hearing . ”

The relevant provisions of the Act provide :

“ The public prosecutor shall examine applications and complaints of violation of rights of individuals and legal entities , except for those complaints which are within the competence of a court .

A decision taken by a public prosecutor can be appealed against before a higher public prosecutor or a court . ”

The relevant extracts of this international instrument provide as follows :

No treatment shall be given to a patient without his or her informed consent , except as provided for in DATE , DATE , DATE , DATE and CARDINAL of the present principle .

Informed consent is consent obtained freely , without threats or improper inducements , after appropriate disclosure to the patient of adequate and understandable information in a form and language understood by the patient on :

( a ) The diagnostic assessment ;

( b ) The purpose , method , likely duration and expected benefit of the proposed treatment ;

( c ) Alternative modes of treatment , including those less intrusive ;

( d ) Possible pain or discomfort , risks and side - effects of the proposed treatment .

A patient may request the presence of a person or persons of the patient ’s choosing during the procedure for granting consent .

A patient has the right to refuse or stop treatment , except as provided for in DATE , DATE , DATE , DATE and CARDINAL of the present principle . The consequences of refusing or stopping treatment must be explained to the patient .

Every patient not admitted involuntarily shall have the right to leave the mental health facility at any time unless the criteria for his or her retention as an involuntary patient , as set forth in principle CARDINAL below , apply , and he or she shall be informed of that right .

A person may be admitted involuntarily to a mental health facility as a patient or , having already been admitted voluntarily as a patient , be retained as an involuntary patient in the mental health facility if , and only if , a qualified mental health practitioner authorized by law for that purpose determines , in accordance with principle CARDINAL above , that that person has a mental illness and considers :

( a ) That , because of that mental illness , there is a serious likelihood of immediate or imminent harm to that person or to other persons ; or

( b ) That , in the case of a person whose mental illness is severe and whose judgement is impaired , failure to admit or retain that person is likely to lead to a serious deterioration in his or her condition or will prevent the giving of appropriate treatment that can only be given by admission to a mental health facility in accordance with the principle of the least restrictive alternative .

In the case referred to in subparagraph ( b ) , a second such mental health practitioner , independent of the first , should be consulted where possible . If such consultation takes place , the involuntary admission or retention may not take place unless the second mental health practitioner concurs .

Involuntary admission or retention shall initially be for a short period as specified by domestic law for observation and preliminary treatment pending review of the admission or retention by the review body . The grounds of the admission shall be communicated to the patient without delay and the fact of the admission and the grounds for it shall also be communicated promptly and in detail to the review body , to the patient ’s personal representative , if any , and , unless the patient objects , to the patient ’s family .

The review body shall be a judicial or other independent and impartial body established by domestic law and functioning in accordance with procedures laid down by domestic law . It shall , in formulating its decisions , have the assistance of CARDINAL or more qualified and independent mental health practitioners and take their advice into account .

NORP The initial review of the review body , as required by paragraph CARDINAL of principle CARDINAL above , of a decision to admit or retain a person as an involuntary patient shall take place as soon as possible after that decision and shall be conducted in accordance with simple and expeditious procedures as specified by domestic law .

The review body shall periodically review the cases of involuntary patients at reasonable intervals as specified by domestic law .

An involuntary patient may apply to the review body for release or voluntary status , at reasonable intervals as specified by domestic law .

At each review , the review body shall consider whether the criteria for involuntary admission set out in paragraph CARDINAL of principle CARDINAL above are still satisfied , and , if not , the patient shall be discharged as an involuntary patient .

If at any time the mental health practitioner responsible for the case is satisfied that the conditions for the retention of a person as an involuntary patient are no longer satisfied , he or she shall order the discharge of that person as such a patient .

A patient or his personal representative or any interested person shall have the right to appeal to a higher court against a decision that the patient be admitted to , or be retained in , a mental health facility .

The relevant extracts of the ORG provide as follows :

A person may be subject to involuntary placement only if all the following conditions are met :

i. the person has a mental disorder ;

ii . NORP the person ’s condition represents a significant risk of serious harm to his or her health or to other persons ;

iii . the placement includes a therapeutic purpose ;

iv . no less restrictive means of providing appropriate care are available ;

v. the opinion of the person concerned has been taken into consideration .

Decision

NORP The decision to subject a person to involuntary placement should be taken by a court or another competent body . The court or other competent body should :

i. take into account the opinion of the person concerned ;

ii . act in accordance with procedures provided by law based on the principle that the person concerned should be seen and consulted .

Decisions to subject a person to involuntary placement or to involuntary treatment should be documented and state the maximum period beyond which , according to law , they should be formally reviewed . This is without prejudice to the person ’s rights to reviews and appeals , in accordance with the provisions of LAW .

Member states should ensure that persons subject to involuntary placement or involuntary treatment can effectively exercise the right :

i. to appeal against a decision ;

ii . to have the lawfulness of the measure , or its continuing application , reviewed by a court at reasonable intervals ;

iii . to be heard in person or through a personal advocate or representative at such reviews or appeals .

NORP If the person , or that person ’s personal advocate or representative , if any , does not request such review , the responsible authority should inform the court and ensure that the continuing lawfulness of the measure is reviewed at reasonable and regular intervals .

Member states should consider providing the person with a lawyer for all such proceedings before a court . Where the person can not act for him or herself , the person should have the right to a lawyer and , according to national law , to free legal aid . The lawyer should have access to all the materials , and have the right to challenge the evidence , before the court .

A procedure to appeal the court ’s decision should be provided .

The ORG standards ( document no . ORG ( DATE ) CARDINAL . DATE , page CARDINAL ) provide , in so far as relevant , as follows :

“ V. Involuntary placement in psychiatric establishments

... CARDINAL . Patients should , as a matter of principle , be placed in a position to give their free and informed consent to treatment . The admission of a person to a psychiatric establishment on an involuntary basis should not be construed as authorising treatment without his consent . It follows that every competent patient , whether voluntary or involuntary , should be given the opportunity to refuse treatment or any other medical intervention . Any derogation from this fundamental principle should be based upon law and only relate to clearly and strictly defined exceptional circumstances .

Of course , consent to treatment can only be qualified as free and informed if it is based on full , accurate and comprehensible information about the patient ’s condition and the treatment proposed . ... Consequently , all patients should be provided systematically with relevant information about their condition and the treatment which it is proposed to prescribe for them . Relevant information ( results , etc . ) should also be provided following treatment . ...

The procedure by which involuntary placement is decided should offer guarantees of independence and impartiality as well as of objective medical expertise . ...

The ORG also attaches considerable importance to psychiatric establishments being visited on a regular basis by an independent outside body ( eg . a judge or supervisory committee ) which is responsible for the inspection of ORG care . This body should be authorised , in particular , to talk privately with patients , receive directly any complaints which they might have and make any necessary recommendations . ...

Involuntary placement in a psychiatric establishment should cease as soon as it is no longer required by the patient ’s mental state . Consequently , the need for such a placement should be reviewed at regular intervals . ... ”

NORP The relevant excerpts from the Report to ORG on the visit to GPE carried out by the ORG from DATE to DATE ( ORG ( DATE ) CARDINAL ) read as follows :

“ D. ORG health establishments

Chernivtsi Regional Clinical Psychiatric Hospital

f. safeguards offered to psychiatric patients

... CARDINAL . A few patients were officially admitted on a non - voluntary basis under a civil committal procedure .

Nevertheless , as previously mentioned ( cf . paragraph CARDINAL above ) , a large number of the CARDINAL adult patients in the secure wards had not consented to their admission to a psychiatric hospital and could not leave the hospital of their own free will . In practice , they did not have the slightest opportunity to benefit from the safeguards provided by the DATE Law on Psychiatric Care , in particular the opportunity to contest their admission to hospital . In many cases , the files contained only a request for treatment made by a relative .

Worse still , an examination of the ORG files revealed that some of them had been admitted to hospital without their consent simply on the basis of a letter from a public prosecutor or at the request of the ORG , without an involuntary committal request having been submitted to the competent court .

By letter of DATE , the NORP authorities informed the ORG that instructions had been issued to put into practice at Chernivtsi the CARDINAL Law on Psychiatric Care . The ORG wishes to receive confirmation that this is currently the case . In addition , it recommends that the NORP authorities immediately take all the necessary steps to ensure that the sections of the DATE Law on Psychiatric Care concerning involuntary admission to hospital are scrupulously observed in all NORP hospitals which admit non - voluntary patients . ... ”


Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of P1-1;Partly inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial claim;Costs and expenses partial award - Convention proceedings

The applicants were born in DATE and DATE respectively and live in GPE , GPE .

The applicants , a husband and wife , owned a house and a surrounding plot of land in GPE , GPE . On an unspecified date “ NORP Roads ” , a public company based in GPE , instituted expropriation proceedings before ORG , ORG , Construction and ORG ( ORG državne uprave u PERSON , ORG uređenje , zaštitu okoliša , graditeljstvo i imovinsko - pravne poslove , hereinafter the “ ORG ” ) , requesting that part of the applicants ' plot of land be expropriated with a view to building a motorway . The applicants opposed this proposal , asking that their estate , namely the house and the surrounding land , be expropriated in its entirety . The applicants argued that with only partial expropriation they , as farmers , would have no further use for the house and the small area around it , since the house and the agricultural land on which it was built represented an inseparable unity . Furthermore , there would be no vehicle access to the courtyard . As farmers , the applicants could not use their property without access for tractors and other vehicles used in agricultural activity .

In addition , the planned motorway would pass in close proximity to the house , thus causing significant noise pollution due to the high traffic frequency . The motorway and the exit road would pass CARDINAL QUANTITY respectively from the house .

They pointed out that the construction of CARDINAL plastic noise - protection walls would transform their house and its surroundings into a cage , without efficiently protecting them from noise and pollution . The entire ground floor , the terrace and a part of the attic would be situated QUANTITY from the protection walls .

They argued that the value of the remaining property would significantly decrease , since construction of the motorway would deprive them of the living conditions they hitherto enjoyed , such as direct road access , pleasant surroundings , a huge courtyard and low noise exposure , all of which made the property very suitable for agricultural activity . For these reasons the applicants asserted that they had no economic interest in retaining the house and the surrounding courtyard .

ORG held CARDINAL hearings and obtained an expert opinion on the effects of the motorway construction on the applicants ' living conditions in the remaining house and courtyard , and another expert opinion on the market value of the agricultural land .

The applicants contested the proposed level of compensation , asserting that they were entitled to the market value of their expropriated land , and claiming that the market value of land suitable for construction in the area was CARDINAL NORP PERSON ( HRK ) per square metre , a figure which was significantly higher than the amount proposed .

By a decision of DATE , ORG ruled that part of the applicants ' estate , namely an agricultural plot and CARDINAL plots of land suitable for construction measuring CARDINAL m² , CARDINAL ORG and CARDINAL ORG respectively , was expropriated with a view to building a motorway . The applicants retained ownership of the house and a surrounding courtyard .

Compensation was fixed at HRK CARDINAL,CARDINAL.CARDINAL , based on the sum of HRK CARDINAL per square metre for agricultural land , assessed on the basis of the report submitted by a court expert for agriculture , and HRK CARDINAL per square metre for land suitable for construction , assessed according to the criteria laid down by ORG , ORG .

The relevant part of the decision reads as follows :

“ During the expropriation proceedings a representative of “ NORP LOC limited liability company ( d.o.o . ) , GPE , offered the owners compensation in the amount of HRK CARDINAL per square metre for agricultural land , on the basis of its market value as established by an agricultural expert , agricultural engineer PERSON , ... and HRK CARDINAL per square metre for the land suitable for construction , on the basis of data submitted by ORG ... The owners did not accept the above offer , however , but persisted with their request that parcel no . DATE in GPE be expropriated in its entirety , pursuant to section CARDINAL of LAW , claiming that they had no interest in using the remaining parts of their estate . More precisely , they sought expropriation of the entire estate together with the house and all other objects built on the estate ...

... this ORG has also obtained the expert opinion of a sworn court expert PERSON , architecture engineer , ... and the submissions of ORG , the engineer who drew up the project , ... from which it transpires that there is no need for total expropriation and that the remaining property continues to enjoy unhindered road access and that provision has been made for noise - protection walls .

... furthermore , if the owners ' request for total expropriation is accepted , all other houses and economic objects which are at an equal or even lesser distance from the motorway ... will also [ have to ] be expropriated ...

In addition , the owners ' argument that the partial expropriation of parcel no . DATE would significantly deteriorate their housing conditions is unfounded because they ... do not live at that address . ”

The applicants filed an appeal against that decision , but the second - instance administrative body failed to rule on it .

On DATE the applicants filed a claim with ORG ( PERSON ) under LAW ) § CARDINAL of LAW , seeking expropriation of their entire estate . They reasserted the arguments previously submitted to the administrative authority . The applicants further contended that the expert opinion had been drawn up without the expert ever actually visiting the site and without any study of traffic frequency on the road passing the applicants ' house or on the effect of traffic pollution on their quality of life . The expert opinion had been prepared on the basis of a map of the land plot on which the applicants ' house had been erroneously drawn .

The applicants also complained about the amount of compensation awarded to them and reiterated that the market value of the expropriated plots had not been established . Instead , the amount was fixed according to ORG tables . The applicants complained that their objections had not been adequately examined and addressed by the administrative authority .

On DATE ORG held a hearing at which the applicants ' representative repeated their arguments , but no new evidence was presented or requested by the court . On DATE ORG dismissed the applicants ' claim . The relevant part of its judgment reads as follows :

“ The reasoning of the cited decision clearly indicates that compensation corresponding to the market value of the plaintiffs ' ( the former owners ) estate was determined in the expropriation proceedings . The market value of the agricultural land was assessed by a sworn court expert for agriculture ... and the market value of the land suitable for construction was assessed according to the opinion of construction experts and the data submitted by ORG .

Relying on the reasoning in the above - mentioned decision , this court has further established that , ... in respect of the plaintiffs ' request for expropriation of their remaining estate and the existence of a road access to the estate , the expert opinion of a sworn court expert for construction ... had been obtained as well as the opinion of a geodesic engineer ... , from which it followed that the plaintiffs ' request for total expropriation was not founded because there were a number of other houses and other objects in the same area which were at an equal or lesser distance from the motorway and that noise protection had been ensured to all expropriated [ properties ] and that the remaining plaintiffs ' property continued to enjoy road access . It follows that there are no well - founded reasons for the plaintiffs ' request for total expropriation of their estate ...

... this court has established that no procedural defects , and especially no grave procedural defects , were made in the administrative proceedings and that the substantive law had been correctly applied , both concerning the dismissal of the plaintiffs ' request for total expropriation of their estate and in respect of the amount of compensation fixed for agricultural land and the land suitable for construction .

As has already been stated , while the plaintiffs are not entitled to bring any new facts in the proceedings before this court , except those presented in the administrative proceedings , they are allowed to bring new evidence in respect of the facts presented in the administrative proceedings .

However , the plaintiffs have , neither in their claim nor during the proceedings , presented any evidence concerning their objections and the reasons for which they seek annulment of ORG ... decision of CARDINAL DATE , which would be capable of calling into question the facts on which the cited decision was based ... ”

The applicants then filed a constitutional complaint , arguing that their right to equality before the law , their right to a fair trial and their right of appeal had been violated in that they had been unable to submit new evidence to ORG and that that court had reached its decision without having any evidence presented to it . Thus , their objections with regard to the expert opinion and their assertions about the effects of the motorway construction on their living conditions and on the value of their remaining property had remained unaddressed . The applicants also argued that their right to compensation for the market value of their expropriated property had been violated .

On DATE ORG dismissed the applicants ' complaint as ill - founded . The decision of ORG reads as follows :

“ CARDINAL . The constitutional complaint is lodged against ORG judgment no . CARDINAL of DATE , by which the applicants ' ( plaintiffs ' ) claim , filed against ORG as defendant , ORG , seeking the annulment of the decision of ORG , class : UP / I-CARDINAL - CARDINAL/CARDINAL - CARDINAL/CARDINAL , no . CARDINAL of DATE , was dismissed .

The first instance administrative decision accepted the proposal by “ NORP LOC d.o.o . , GPE , for partial expropriation of parcel no . DATE , ORG , owned by the applicants , and established the compensation for the expropriated land , for investments in the land and for the agricultural crops at HRK CARDINAL .

The applicants claimed a violation of their constitutional rights under LAW , LAW , LAW and LAW .

In their constitutional complaint the applicants argued that , in the preceding proceedings , the facts had been incorrectly established and that their estate should have been expropriated in its entirety . They maintained that ORG should have obtained the entire administrative case - file and verified the experts ' opinions with regard to the finding that there was no need for total expropriation , and the findings with regard to the amount of compensation , which they claimed did not correspond to the market value but had been fixed on the basis of ORG tables . They further asserted that their right to an appeal had been violated because in the proceedings before ORG they had not been allowed to present new facts and for that reason the whole proceedings had been arbitrary .

They asked ORG to quash the impugned judgment .

The constitutional complaint is unfounded .

Section CARDINAL paragraph CARDINAL of LAW ( Official Gazette no . CARDINAL ) provides that everyone may lodge a constitutional complaint with ORG if he or she deems that an individual act of a state body , a body of local and regional self - government or a legal person invested with public authority , which resulted in a decision on his or her rights and obligations , or on suspicion or accusation of a criminal act , has violated his or her constitutional right .

While deciding whether constitutional rights were violated in proceedings concerning the assessment of an individual 's rights and obligations , within the scope of the claim contained in the constitutional complaint , ORG does not , in principle , consider whether the courts correctly and completely established the facts and assessed the evidence . For ORG the only facts to be taken into consideration are those relevant for the assessment of a violation of a constitutional right .

The proceedings before ORG were instituted by the applicants pursuant to section LAW ( Official Gazette nos . CARDINAL , CARDINAL , CARDINAL/CARDINAL – ORG decision and GPE ) because the appellate administrative body ( ORG ) did not decide on their appeal within the fixed time - limit . In such proceedings , a court assesses the legality of the first - instance decision concerning expropriation on the basis of the facts presented in the claim filed with that court and the defendant body 's reply ( if the reply reaches the court within the fixed time - limit ) , ... pursuant to section CARDINALe § CARDINAL of the same Act .

The proceedings in connection with the applicants ' claim were conducted under section LAW , which provides :

The ORG considers and decides on the basis of the facts presented in the administrative proceedings .

A claimant is not allowed to present new facts , but may present new evidence concerning the facts presented in the administrative proceedings .

As regards the compensation for the expropriated land , ORG found that the compensation fixed corresponded to its market value . As regards the agricultural land , the compensation was assessed by a sworn court expert for agriculture , while the compensation for the land suitable for construction was assessed on the basis of an opinion by a construction expert and data provided by ORG .

As regards the applicants ' request for total expropriation , ORG upheld the first instance body 's decision finding that there had been no need for expropriation of the applicants ' estate in its entirety , in that the evidence presented to that administrative body had clearly demonstrated that there existed a number of other houses and other economic objects in the same area which were at an equal or lesser distance from the corridor of the future motorway and that all expropriated [ properties ] had been provided with protection against noise . In particular , it was established that the applicants ' remaining estate continued to enjoy unhindered road access , and therefore there existed no justification for the expropriation of the applicants ' remaining estate within the meaning of section CARDINAL of LAW .

ORG established that no grave procedural defects had occurred in the expropriation proceedings , nor had the material law been wrongly applied ; in particular , it established that the applicants had failed to present any new evidence capable of calling into question the facts on which the impugned decision had been based .

The applicants further claimed in their constitutional complaint that the impugned judgment had violated the constitutional guarantee of equality of all before the law , provided for under LAW .

Having established that the legal opinions of ORG in the present case did not diverge from the established practice in the application of relevant substantive law , and were not discriminatory on any basis , ORG does not accept the applicants ' allegations that , in the present case , equality before the law was not secured to them , as guaranteed under LAW .

Furthermore , after analysing the constitutional complaint , the findings of the impugned decisions and the case - file , ORG has established that the constitutional complaint 's allegations about the violation of the applicants ' right to an appeal , provided for under LAW , are not founded , in that the competent court addressed all of the arguments submitted by the applicants in the appellate proceedings , the competence of which is regulated by section CARDINALa of LAW ( Official Gazette no . CARDINAL/CARDINAL ) .

ORG considers further that the applicants ' constitutional right to a fair trial before an independent and impartial tribunal established by law ( LAW ) has not been violated .

The right to a fair trial would have been violated if a party to the proceedings had not been given an opportunity to be heard and to participate in the proceedings within the frames set out by laws ; if a party had not been given an opportunity to present facts and evidence and a competent court had failed to rule on those of the party 's arguments which were relevant to its decision ; if , contrary to law , reasons had not been given for an individual act and if a party had in other way been prevented from having a fair trial before the competent body established by law .

Since ORG verified the legality of the impugned decision within the meaning of LAW on the basis of the evidence presented to it and by scrutinising the reasoning of the impugned decision on expropriation , it follows that the proceedings were conducted ... in conformity with the relevant provisions of substantive and procedural law ; the Constitutional Court therefore considers that the applicants ' right to a fair trial was not violated .

The applicants ' further claimed a violation of their constitutional right contained in LAW , which provides :

Any restriction [ of property rights ] or confiscation of property shall be done by law , in the interest of GPE , and compensation of the market value shall be paid .

Since the competent ORG established that the expropriation proceedings had been conducted in accordance with the provisions of LAW , with the correct application of substantive law and without grave procedural defects , and since the same court established that the applicants had received compensation for their expropriated estate equal to its market value , the cited constitutional right has not been violated .

For these reasons and pursuant to sections CARDINAL of LAW it has been so decided . ”

The relevant parts of LAW ( Zakon o izvlaštenju , ORG nos . CARDINAL , CARDINAL , CARDINAL and GPE ) provide as follows :

Section CARDINAL entitles the owner of an estate subject to partial expropriation to request its total expropriation if he or she has no interest in using the remaining property .

Sections CARDINAL and CARDINAL require that compensation for expropriated property equals the market value of that property on the date on which the first - instance decision in expropriation proceedings is adopted .

Section CARDINAL § CARDINAL enables an action to be brought before the competent county court against a second - instance administrative decision on expropriation .

Section CARDINAL ) § CARDINAL provides that such an action may also be brought if the second - instance administrative body fails to decide on appeal against the first - instance administrative decision .

Section CARDINAL(b ) stipulates that , unless otherwise provided , LAW is to be applied in expropriation proceedings conducted before the competent county court .

Section CARDINAL(e ) § § CARDINAL and CARDINAL obliges the competent county court to decide on the basis of the facts presented in the preceding administrative proceedings , and prevents a claimant from presenting any new facts , while at the same time allowing presentation of new evidence before the county court .

Section CARDINAL(e ) § CARDINAL requires that the county court , when dealing with an action brought under LAW ) § CARDINAL , examines the case on the basis of the facts presented in such an action and of the submissions of the administrative body which issued the impugned decision .

Section CARDINAL of LAW ( Zakon o upravnim sporovima , ORG nos . CARDINAL , CARDINAL/CARDINAL and DATE ) provides for the application of LAW to proceedings concerning administrative disputes , in so far as these proceedings are not regulated by LAW .

Section CARDINAL(a ) of the Civil Procedure Act enables an applicant in respect of whom ORG has found a violation of the LAW or its Protocols to request , within DATE of the ORG 's judgment becoming final , the re - opening of the domestic proceedings in question . In the new proceedings the domestic courts are obliged to follow the reasons given in the ORG 's judgment .


KRONE VERLAG GmbH & CoKG and MEDIAPRINT ZEITUNGS- UND ZEITSCHRIFTENVERLAG GmbH & CoKG v. AUSTRIA

The applicants , ORG and ORG Zeitungs- und ORG are the owner and publisher , respectively , of the DATE newspaper “ ORG ” with its seat in GPE .

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

On DATE the ORG published an article , written under the pseudonym “ PERSON ” , about the exhibition “ War of annihilation . Crimes of the Wehrmacht DATE ” ( “ GPE ) , planned to be staged in GPE and contested in NORP public opinion . The article responded to a commentary by a professor of ORG , published on DATE in the opinion column of the newspaper ORG , where the author had defended and promoted this exhibition and had criticised its opponents . The article of the ORG with the head “ Infected with lies ... ” ( “ GPE der GPE infiziert ... ” ) read as follows :

“ Contemporary history is infected with lies as a whore is with syphilis . ” Who said that ? You probably wo n’t guess : the great philosopher PERSON . How right he is ! And naturally the losers in a war are the first to suffer .

This is evident at the so - called Wehrmacht Exhibition , in which most of the exhibits come from the NORP , in other words from the NORP regime DATE among numerous other crimes against its own people and other nations – committed the massacre at PERSON and attempted to lay the blame for it on the Wehrmacht . Well over CARDINAL NORP were shot dead because they were regarded as anti - NORP . In a show trial CARDINAL NORP soldiers were sentenced to death and immediately executed , though they were completely innocent . DATE documents exist which prove this beyond dispute .

A GPE professor of contemporary history , PERSON – a PERSON persecutor , of course , who lives on ORG money and is highly subsidised DATE praises this exhibition and attacks anyone who expresses any reservations . And who is helping him ? ORG , which gives him a whole page .

Is n’t there a saying “ If you are caught lying once , you are never believed ... ” ? Well , anyone who has once lied so grossly , who has been guilty of such criminal falsification and who DATE to make the monstrous lie more credible – has sacrificed human lives deserves our utter contempt . What can have happened to this once so distinguished newspaper for it to side with the Katyn murderers and not believe former soldiers who experienced the suffering of war ?

Does ORG believe that the fallen whose names appear on the war memorials of our cities , towns and villages were murderers ? What an outrageous slur , on them and on those who managed to survive the hecatomb !

Maybe those who smear our Second World War soldiers think that those who can still defend their wartime comrades and themselves are now only few in number anyway and that their numbers are declining . But sons , daughters and grandchildren will begin to feel the pain of their NORP scars . They wo n’t allow soldiers whose unavoidable destiny it was to fight a world war to be called murderers .

The process of rehabilitation has perhaps already begun . CARDINAL symptom among many : the falling circulation of newspapers that act as accomplices of ‘ contemporary LOC as characterised by PERSON .

Cato ”

Subsequently , the owner of ORG filed a private prosecution against Mr PERSON , the editor of the Neue Kronen Zeitung , assuming him to be the author of the article written under the pseudonym “ PERSON ” , on grounds of defamation ( üble GPE ) and insult ( PERSON ) . At the same time the owner of ORG requested compensation under LAW ( Mediengesetz ) and that the decision be published .

On DATE ORG ( PERSON für PERSON ) acquitted PERSON and rejected the further claims . It found that it could not be established with sufficient certainty that the impugned article was written by the accused . Referring to this acquittal , the court also rejected the compensation claim and the request for publication of the judgment . It noted that the article in the ORG was part of a political debate in the course of a journalistic controversy about the exhibition and the historical role of the Wehrmacht . Its value statements were based on true facts and did not overstep the limits of permissible criticism . This decision became final .

Parallel to these proceedings , the owner of ORG lodged injunction proceedings under LAW ( ORG ) and under LAW ( Gesetz gegen den unlauteren GPE ) against PERSON and the applicant companies before ORG ( PERSON ) , requesting that the applicant companies be prohibited from repeating the following statements :

a ) that ORG approved the massacre at PERSON committed by the NORP in the Second World War ;

b ) that in its reporting it called murderers those fallen in the Second World War ;

c ) that it smeared the soldiers of the Second World War ;

d ) that it had diminished in quality as a newspaper ;

e ) that its circulation had fallen ; and

f ) that ORG were accomplices of liars ( meaning that contemporary historians would falsify history ) . It also requested a revocation of these allegations and that the decision be published .

On DATE ORG issued an injunction , by which it prohibited the applicant companies to repeat the impugned statements and ordered its publication . It noted in particular that the statements a ) , b ) and d ) constituted untrue statements of facts which fulfilled the civil offences under section CARDINAL LAW and under section CARDINAL of LAW . The statements c ) and f ) were value statements containing an unobjective and unnecessary disparagement of a competitor under LAW . Finally , the statement e ) was based on true facts , which , taken in its context , fulfilled the civil offence under LAW . The court stated that the article at issue dealt with a political and ideological matter of public interest . In this respect , the criticism lodged against ORG could be understood as criticism for having given a forum in its opinion column to an author who had disputable opinions . It had to be taken into account that commentaries in opinion columns were not necessarily in line with a newspaper ’s point of view . Since the ORG also criticised the general quality of ORG and its circulation , which had no relevance whatsoever for the political topic at issue , the criticism lodged in the article had to be considered as having been made by the applicant companies with a competitive intention . The same applied to disparaging and untrue statements . Furthermore , in balancing the purely political statements , which aimed at contributing to a journalistic debate , with those , which were made with a competitive aim , the latter prevailed in the court ’s opinion , in particular since the article ended with a disparaging statement .

On DATE ORG ( Oberlandesgericht ) , on the applicant ORG appeal , confirmed the lower court ’s decision in part . It rejected the claim against PERSON and ordered the applicant companies to refrain from publishing the following allegations :

“ a ) that , in its reports on the Wehrmacht Exhibition , ORG would side with the PERSON murderers and thus approve the massacre of CARDINAL NORP at PERSON committed by ORG ;

b ) that in its reports ORG would call the fallen soldiers of the Second World War ‘ murderers’ ;

c ) that in its reports ORG would smear the soldiers of the Second World War ;

d ) that ORG would not report in the same quality as in the past and had thus lost in quality as a newspaper , and

e ) that ORG were accomplices of liars . ”

The court found that a controversy between newspapers could contribute to form public opinion . This function would become less important if such controversy was conducted with a competitive intention and by the use of untrue and disparaging statements of facts . Since this was so in the present case , the competitor ’s interest in the protection of its reputation outweighed the applicant companies’ right to freedom of expression . The court quashed the lower court ’s injunction as regards the prohibition to repeat that the circulation of ORG had fallen , finding that it constituted a true statement of fact .

On DATE ORG ( Oberster Gerichtshof ) dismissed the applicant ORG extraordinary appeal on points of law as it did not raise any important issue of law and because ORG judgment was in line with ORG case - law . It noted in particular that the criteria of section CARDINAL of LAW were fulfilled when statements of facts were published , inter alia , with a competitive intention . In this respect , the competitive intention had to be assumed when disparaging allegations about a competitor were made . A given statement constituted a statement of fact if its meaning , as understood by the recipient , was based on facts which were susceptible to proof .

Section CARDINAL of the NORP Civil Code provides as follows :

" ( CARDINAL ) Anybody who , due to defamation , suffered real damage or loss of profit , may claim compensation .

( CARDINAL ) The same applies if anyone is disseminating facts which jeopardise someone ’s reputation , gains or livelihood , the untruth of which was known or must have been known to him . In this case there is also a right to claim a revocation and the publication thereof . ( ... ) "

The relevant sections of LAW read as follows :

Section CARDINAL

" Any person who in the course of business commits , for the purposes of competition , acts contrary to honest practices , may be enjoined from further engaging in those acts and held liable for damages . "

Section CARDINAL

“ ( CARDINAL ) Any person who , for the purposes of competition , makes or propagates declarations of fact about another person ’s company , about the owner or manager of a company , about the goods or services of another person , that are such as to damage the activities of the company or the credit of its owner , may be held liable for damages , if the truth of the declarations can not be proved . The person damaged may also apply for an injunction against the making or propagation of such declarations and may claim a revocation and the publication thereof . ”


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

On DATE the applicant lodged an action against ORG ( ORG ) with ORG , seeking compensation for damage to his health during his service .

On DATE ORG ruled in favour of the applicant and ordered the Ministry to pay him CARDINAL Moldovan lei ( MDL ) ( the equivalent of MONEY ( ORG ) as of DATE ) . The Ministry did not appeal and after DATE the judgment became final and enforceable .

On DATE the applicant complained about the non - enforcement of the judgment in his favour to a bailiff . On DATE the latter informed the applicant , inter alia , that the enforcement warrant had been sent to ORG on DATE and it could not be enforced due to lack of money .

On DATE the applicant brought a new action against ORG , seeking compensation for inflation for the period of non - enforcement .

During the proceedings , on DATE , the ORG complied with the judgment of CARDINAL DATE and paid the applicant MDL CARDINAL .

On DATE ORG dismissed the applicant ’s action . It found , inter alia , that since the judgment in his favour had been enforced , the ORG could not be made subject to an additional obligation to pay him compensation . He appealed against it .

On DATE the ORG dismissed the applicant ’s appeal . He did not lodge an appeal on points of law with ORG .

The relevant domestic law was set out in GPE and Others v. GPE , nos . CARDINAL , CARDINAL , ORG , CARDINAL/CARDINAL , CARDINAL/CARDINAL and GPE , § CARDINAL , DATE .