The applicants , Mr PERSON and PERSON , are NORP nationals who were born in DATE and DATE respectively . The first applicant lives in GPE , GPE and the second applicant in GPE , GPE . The third applicant is the estate ( kuolinpesä , dödsbo ) of the late PERSON , represented by the first applicant . The applicants are represented before the ORG by Mr PERSON , a lawyer practising in GPE . The respondent Government are represented by their Agent , Mr PERSON of ORG .

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

In DATE PERSON inherited property – ORG RN : o DATE ( “ ORG property ” ) at ORG in the municipality of GPE ( which , since DATE is the “ city of GPE ) . Since her death on DATE , the property has been part of her estate and has belonged to her beneficiaries , the first and second applicants . The property has a surface area of QUANTITY and is undeveloped . It is situated near the central park of GPE .

In DATE ORG ( kauppalanvaltuusto , köpingsfullmäktige , now ORG ( kaupunginvaltuusto , stadsfullmäktige ) ) , adopted a municipal building plan ( rakennussuunnitelma , byggnadsplan ; called as rakennuskaava FAC ( rakennuslaki , byggnadslagen ; Act no . CARDINAL/CARDINAL ) ) for the locality , including the ORG property . The plan was approved by ORG ( lääninhallitus , länsstyrelsen ) on DATE . The plan assigned potential floor space of QUANTITY on the ORG property .

On DATE ORG ordered that no new building could be constructed in that area without its permission until adequate water , sewerage and traffic facilities had been provided ( ban on building ( rakennuskielto , byggnadsförbud ) ) . ORG ( sisäasiainministeriö , inrikesministeriet ) upheld that decision on DATE .

On DATE ORG decided that a wider area should be incorporated within a town plan ( asemakaava , stadsplan ) and renewed the ban on building . On DATE ORG decided that a town plan would be prepared for the NORP and surrounding areas and imposed a new ban on building .

On DATE ORG annulled the municipal building plan , because a more extensive town plan was to be drawn up . A ban on building was imposed pursuant to section ORG ) of LAW . The decision was approved by ORG on DATE . The ban on building was renewed CARDINAL times , so that it remained in force for DATE , until DATE . It would appear that in DATE and possibly in DATE the applicants ( or their relatives ) unsuccessfully appealed to ORG against the renewals of the ban on building .

In DATE a programme to draw up a master plan ( yleiskaava , generalplan ) was adopted . A regional development plan ( seutukaava , regionplan ) was adopted in DATE under the terms of which , according to the Government , the ORG property became part of a larger recreation zone . The applicants maintained that the ORG property was marked with a symbol denoting an area of dense population . In DATE a proposal for a component master plan ( osayleiskaava , delgeneralplan ) was made in respect of a northern section of GPE . Under this proposal the southern part of the applicants’ property would have been used for detached housing .

During DATE the applicants negotiated with the city of GPE for a possible land - exchange contract . A letter of intent was signed in DATE and was stated to be valid for DATE . As no town plan was adopted , the letter of intent lapsed in DATE .

On DATE ORG ( kaupunginhallitus , stadssyrelsen ) prolonged the ban on building on the ORG property for the fifteenth time on the ground that a town plan was due to be drawn up for the area . The applicants appealed to ORG ( ympäristöministeriö , miljöministeriet ; Ministry ) . They submitted that the ban on building , which had applied to the ORG property for DATE , could not be regarded as temporary within the meaning of the existing legislation and was unconstitutional . They also asked the Ministry to request the competent municipal authority to draw up a master plan and a town plan for the area in question .

At the request of the building board ( rakennuslautakunta , byggnadsnämnden ) , ORG decided to remove the detached housing zone from the proposal for a component master plan in a decision of CARDINAL DATE .

On DATE the Ministry partially lifted the ban on building in the area . However , in spite of the applicants’ appeal the ban on building in respect of the ORG property remained in force . The ORG stated that , as the town plan concerning the area was included in the planning programme of the city of GPE and the ORG property was located near the central park , the planning arrangements in respect of that area of land had to be decided in a town plan . By a separate decision of DATE , it rejected an application by the applicants for the city of GPE to be required to adopt a detailed plan . The applicants appealed to ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) against these CARDINAL decisions .

Meanwhile , the ban on building was extended ( for DATE ) until DATE by a decision of ORG on DATE .

In DATE a planning programme for DATE was adopted . The planning area “ LOC CARDINAL ” , covering the ORG property , was included in the programme , but without any detailed time - table specifying when it would be subject to a further plan .

On DATE ORG adopted part I of the master plan ( yleiskaavan osa I , generalplan del I ) for the north of GPE . The ORG property was now designated for recreational use . The ORG dismissed the appeals and approved the plan on DATE . ORG rejected the ORG appeal on DATE .

Meanwhile , on DATE ORG gave its decision on DATE ) ban on building that had been issued by ORG on DATE and approved by ORG . The court ruled , inter alia , that the city had not started to draw up a town plan , and that , taking into account the planned use of the land and the length of the ban on building , there had been no special reasons to renew it . However , as the ban had expired at DATE , it did not rule further on the case . The decision became a precedent ( ORG DATE A CARDINAL ) .

On DATE ORG dismissed the ORG appeal concerning the obligation to adopt a detailed plan . It found that there were no legal grounds under which the ORG could oblige the city to draw up such a plan .

ORG approved LOC I component master plan for a northern section of GPE on DATE . The decision was approved by ORG on DATE and upheld by ORG on DATE . This plan covered a small southern part of the applicants’ property , which was assigned partly to a neighbourhood recreational zone and partly to a conservation zone ( the ORG hazel grove ) .

In DATE , basing their application on ORG decision of DATE , the applicants applied for an exemption permit in order to build CARDINAL terraced houses and CARDINAL detached houses , comprising of QUANTITY in total , despite the lack of any town plan . Their application was rejected on DATE by ORG , which found as follows :

“ In the regional development plan of DATE the [ ORG ] property was assigned to a recreational zone . Since then CARDINAL master plans covering the area in question have been adopted , namely part I of the master plan for the north of GPE and LOC I master plan . These plans designate the bulk of the property for recreational use , outdoor activities and sports . The property is crossed by important recreational routes leading from the central park to the north . The Vassberget area is situated in the south - east section of the property , which is reserved for use as a conservation zone in part I of the master plan for the north of GPE , and in the southern part of the property there is the PERSON area , which is reserved for conservation in LOC I master plan .

Before a decision can be taken on whether the applicants’ property can be built on ... both a master plan and a town plan have to be drawn up for the area , and this involves also an examination of the need for recreational zones , the connections to the central park , and the suitability of the property for building purposes . A building project on this scale can not be based on an exemption permit . ”

The applicants appealed to ORG , claiming , inter alia , that the refusal to grant them an exemption allowing them to build and the lack of a detailed plan had de facto denied them the right to peacefully enjoy their property for DATE without compensation .

On DATE ORG dismissed their appeal .

On DATE , upon the applicants’ application , ORG ( oikaisulautakunta , rättelsenämnden ) of ORG ( verotoimisto , skattebyrå ) changed the rateable value of their property for DATE to correspond to the planning situation ( use of the land for recreational and outdoor activities ) and the liability to rates on the value of the building was cancelled .

LAW ( Suomen Hallitusmuoto , ORG ; Act no . CARDINAL/CARDINAL ) , which was in force until DATE , provided that the right of NORP citizens to their possessions was to be secured by law ( section CARDINAL(CARDINAL ) ) . Since DATE property has been protected by LAW no . CARDINAL ) . This provision is equivalent to LAW of the present LAW ( perustuslaki , grundlagen ; Act no . CARDINAL/CARDINAL ) .

Section CARDINAL ) of LAW , as worded at the relevant time , provided that urban development ( taaja - asutus , tätbebyggelse ) was permitted only in areas with a ratified town plan , municipal building plan or shore plan ( rantakaava , strandplan ) . According to subsection CARDINAL , exemptions could be granted in individual cases or in certain areas .

Section PERSON ) of LAW required the authorities to ensure that planning measures would not hinder the implementation of the regional development plan . Under section CARDINAL the authorities had to ensure that new construction would not hinder the use of land as contemplated in the regional development plan ( a building restriction ( rakentamisrajoitus , byggnadsinkränkning ) ) .

Section CARDINAL prohibited the construction of new buildings if it contravened a town plan ( a building restriction ) . Subsection CARDINAL(CARDINAL ) imposed a ban on building in areas for which a town plan was scheduled to be drawn up .

By virtue of section DATE , subsection CARDINAL the ban on building was valid for a maximum of DATE . However , if special reasons so warranted , it could be extended for a maximum of DATE at a time . The legislation in force at the relevant time did not include any specific provisions on the maximum duration of bans on building . Section CARDINAL(CARDINAL ) provided , however , that the competent ministry could set a time - limit by which the municipal authorities had to make a decision on a town plan .

Under section CARDINAL ( CARDINAL ) , of ORG ja rakennuslaki , markanvändnings- och bygglag ; Act no . CARDINAL ) , which repealed LAW with effect from DATE , a ban on building is valid for a maximum of DATE . While the plan remains incomplete , the municipality may extend the term for a maximum of DATE at a time . However , under the new legislation , a ban on building may not exceed DATE in all .

According to section CARDINAL of LAW , as worded at the relevant time , the Ministry had power to grant exemptions from provisions , orders , prohibitions or other restrictions concerning construction ( such as prohibitions against urban development ) laid down in LAW or adopted by virtue of it , if an exemption would not substantially impede the implementation of planning or other housing arrangements or the achievement of nature conservation objectives .

Section CARDINAL(CARDINAL ) of the Building Act provided that if a town plan or a ratified local master plan designated land for a purpose other than private construction and the landowner was thereby prevented from using the land in a manner generating a reasonable return , the municipality concerned or , if the land was designated in the plan as being required for ORG needs , the ORG , was obliged to expropriate the land . LAW ) specified that the duty of the municipality or the ORG to expropriate the land took effect only after the landowner ’s application for an exemption from the restriction had been refused and the decision had become effective .

Section CARDINAL ) allowed the landowner to demand expropriation if the municipality or ORG failed to comply with its obligation voluntarily .


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - claim dismissed (Article 41 - Non-pecuniary damage;Just satisfaction)

The applicant was born in DATE and now lives in GPE . He owns CARDINAL per cent of the shares in ORG ( hereafter the “ JDE ” ) , a company registered in GPE .

On DATE ORG of ORG of GPE conducted a customs check of the coffee - tilling goods supplied by ORG ( the company owned by the applicant ) as a contributory to the statutory fund of the jointstock company , ORG . The customs check showed that a cargo - customs declaration had been made by the representatives of ORG on the basis of false documents . On DATE ORG initiated a criminal investigation into alleged smuggling and fraud offences .

On DATE , the case was transferred to the prosecution service of LOC ( hereafter “ the prosecution ” ) for further investigation . On the basis of resolutions of the prosecution of DATE , DATE and DATE , ORG seized documents pertaining to the financial and commercial activities of ORG .

On DATE the prosecution seized the goods supplied to the statutory fund of ORG as evidence and on DATE it froze ORG ’s accounts . It also seized all of the company ’s documentation , including accounting books and copies of contracts , as well as other property belonging to the company and the applicant .

On DATE the applicant was detained on suspicion of having committed a criminal offence under LAW of GPE ( the “ ORG ” ) .

On DATE the prosecution ordered the applicant ’s detention on remand in view of the pending criminal investigation against him .

On DATE the prosecution charged the applicant with smuggling ( Article CARDINAL of the ORG ) , financial fraud ( Article CARDINAL - CARDINAL ORG ) and fraud committed by an official ( Article CARDINAL(CARDINAL ) ORG ) .

On DATE the prosecutor extended the deadline for the investigation by DATE .

On DATE the prosecutor extended the applicant ’s detention on remand by DATE .

On DATE the prosecutor extended the deadline for investigation by DATE and DATE .

On DATE the applicant was additionally charged with tax evasion ( Article CARDINAL - CARDINAL(CARDINAL ) ORG ) and deliberate use of a forged document ( Article CARDINAL(CARDINAL ) ORG ) .

On DATE the applicant was notified about the completion of the investigation .

On DATE the deputy prosecutor approved the bill of indictment issued by the investigating officer .

On DATE the case file was transferred to the NORP ORG of PERSON ( the “ ORG ” ) .

On DATE

NORP In DATE the prosecution sought the annulment of the remittal decision before ORG ( the “ ORG ” ) on the ground that there was already sufficient corroborating evidence .

On DATE ORG rejected the prosecution ’s application , considering that it was necessary to undertake additional investigations in order to reconstruct the crime .

On DATE the applicant was released from detention on the basis of the resolution of the prosecution ’s investigator . The applicant was required not to leave his place of residence .

On DATE the applicant ’s recognisance not to abscond was changed to an undertaking to appear before the investigating authorities and the court . On the same date , the criminal investigation against the applicant was suspended due to the issue of a search warrant against Ms Lodyanova ( a suspect in the case ) .

In DATE ORG instituted proceedings in ORG against ORG of GPE , ORG and the prosecution , seeking the return of its property and documents .

On DATE ORG , by a letter addressed to ORG , stated that it would not consider the complaints directed against the legal entities as it had no jurisdiction over them .

On DATE ORG , following ORG ’s additional submissions , refused to consider the complaints against ORG of GPE and the prosecution service , on the ground that the complaints were outside its jurisdiction . It also held that the ORG arbitration courts had jurisdiction in the matter .

On DATE ORG allowed ORG ’s cassation appeal , quashed the ruling of DATE and remitted the case for reconsideration by the same court .

On DATE ORG suspended the proceedings in the case due to ORG ’s failure to comply with the formal requirements of LAW for the introduction of the complaints ( LAW of the Code ) . The court gave ORG until DATE to rectify the mistakes .

On DATE ORG refused to consider ORG ’s claims because of its failure to comply with the ruling of CARDINAL DATE . On DATE ORG upheld this decision .

On DATE ORG lodged further complaints against ORG GPE , ORG and ORG of LOC .

On DATE ORG left ORG ’s complaints without consideration on account of its failure to comply with the formal requirements of LAW of LAW for the introduction of complaints . ORG was given until DATE to rectify the mistakes .

On DATE ORG refused to consider ORG ’s complaints due to its failure to comply with the ruling of DATE .

On DATE ORG quashed the ruling of CARDINAL DATE and remitted the case for consideration on the merits to the same court .

On DATE ORG rejected ORG ’s motion concerning compensation for moral and material damage caused to ORG by ORG of GPE , ORG and ORG GPE . In particular , it found that ORG ’s complaints amounted to a separate claim , which had to be lodged with the court in compliance with LAW .

On DATE ORG , in the course of a hearing in the presence of the parties , refused to consider ORG ’s claims for the return of property and documents as being outside the ORG jurisdiction , in accordance with Articles CARDINAL - CARDINAL and CARDINAL of the Code of Civil Procedure and Article CARDINAL of the Code of Criminal Procedure . It also decided to terminate the proceedings in the case .

On DATE ORG upheld this decision . In particular , it stated that , for the time - being , ORG ’s claims could not be determined in civil proceedings . It also noted that a different procedure for their consideration existed in the domestic law .

In DATE the applicant instituted proceedings in ORG against the prosecution , demanding termination of the criminal investigation against him . On DATE ORG rejected his claims as being outside the court ’s jurisdiction under LAW of LAW . In particular , it specified that the applicant had not availed himself of a special procedure for lodging complaints against acts of the investigator carried out in the course of the pre - trial investigation .

On DATE the criminal investigation was terminated on account of lack of corroborating evidence .

On DATE the deputy prosecutor quashed the resolution of DATE due to the investigating officer ’s failure to comply with ORG instructions of DATE ( see paragraph CARDINAL above ) . The prosecution remitted the case for additional investigations .

NORP On DATE ORG passed a resolution authorising the apprehension of PERSON .

On DATE the prosecution informed the applicant that the criminal charges against him were still being investigated .

The criminal investigation is currently suspended due to the nation - wide search for PERSON .

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

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

... After exhausting all domestic legal remedies , everyone has the right of appeal for the protection of his or her rights and freedoms to the relevant international judicial institutions or to the relevant bodies of international organisations of which GPE is a member or participant .

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

“ The Prosecution of Ukraine constitutes a unified system that is entrusted with :

NORP prosecuting in court on behalf of the State ;

NORP representing the interests of a citizen or of the State in court in cases determined by law ;

supervising compliance with the laws of the bodies which conduct detective and search activities , inquiries and pre - trial investigations ;

supervising the observance of the laws in the execution of judicial decisions in criminal cases , and also in the application of other coercive measures aimed at the restraint of ORG personal liberty . ”

“ The Prosecution of Ukraine is headed by ORG , who is appointed to office with the consent of PERSON of GPE , and dismissed from office by the President of GPE . PERSON of GPE may express no confidence in ORG , which results in his or her resignation from office .

The term of authority of ORG is DATE . ”

“ The organisation and operational procedure for the bodies of the Prosecution of GPE shall be established by the law . ”

“ ORG in GPE is administered exclusively by the courts .

... The jurisdiction of the courts extends to all legal relations that arise in the ORG .

... Judicial decisions are adopted by the courts in the name of GPE and are mandatory for execution throughout the entire territory of GPE . ”

“ The pre - trial investigation in criminal cases shall last no longer than DATE . This term shall commence from the moment the criminal proceedings were initiated up to the point of their being sent to the prosecutor with :

an indictment or a resolution concerning the committal of the case to the court in order to decide on applicable measures of compulsory medical treatment or terminating the proceedings in the criminal case . In the event of impossibility to terminate the proceedings this term shall be extended by DATE by the district , city , military prosecutor of the army , fleet , military districts ( commands ) , garrisons and the prosecutors of equal rank . The time it takes for the accused and his representatives to familiarise themselves with the materials in the criminal case - file shall not be included in the calculation of the period of the pre - trial investigation .

In especially complicated cases the term of the pre - trial investigation , established by part CARDINAL of this Article , can be extended on the basis of the reasoned resolution of the investigator DATE , to be approved by the prosecutor of GPE , prosecutors of regions , the prosecutor of GPE , the military prosecutor of the military district ( command ) , fleet and the prosecutors of equal rank or their deputies .

Further continuation of the term of the pre - trial investigation shall only be approved by ORG or by his deputies .

Where the case was remitted for an additional investigation , or if the terminated case was re - opened , the term of additional investigation shall be established by the prosecutor who supervises the investigation , and shall not be DATE from the moment of the re - initiation of the proceedings in the case . Further continuation of this term shall be enacted on a general basis .

The rules enshrined in this Article , shall not be applicable to criminal proceedings where it has not been established who committed the crime . The running of the term of the investigation in such cases shall commence from the date of identifying the person who committed a crime . ”

( On DATE ORG interpreted this provision and held that the maximum deadline for investigating criminal cases can not be fixed . It decided that the time allowed for investigation should be reasonable , and referred to LAW . )

“ ... Complaints in respect of the acts of the investigating officer can be lodged with the court .

The complaints in respect of the actions of the investigating officer shall be considered by the first instance court in the course of the preliminary hearing in the case or in the course of its consideration on the merits , unless otherwise provided by this Code ... ”

( This provision was declared partly unconstitutional by ORG on DATE ) .

“ Complaints in respect of the prosecutor ’s actions during the conduct of the pre - trial investigation or other individual investigative actions in the case shall be submitted to the superior prosecutor , who shall consider them in accordance with the procedure and within the terms prescribed by Articles CARDINAL and CARDINAL of this Code .

A complaint about the prosecutor ’s actions can be lodged with the court .

Complaints about the prosecutor ’s actions shall be considered by the first - instance court in the course of the preliminary consideration of the case or in the course of its consideration on the merits , unless otherwise provided for by this LAW . ”

“ The claim shall be lodged with the court in writing .

The claim shall contain the following :

the full name of the court the claim is lodged with ;

NORP the exact name of the applicant and respondent , their place of residence and their situation , as well as the name of the representative of the applicant , in the event the claim is lodged by the representative ;

the content of the claim ;

the circumstances with which the applicant substantiates his claim ;

NORP reference to relevant evidence substantiating the claim ;

reference to the sum claimed ;

the signature of the applicant and his representative , mentioning the date the claim was lodged .

... Written evidence shall be appended to the claim and , in the event the claim is lodged by the representative of the applicant , a letter of authority or another document certifying the powers of the representative . ”

“ The proceedings in the case shall be terminated by the court :

NORP if the claims are outside the courts’ jurisdiction ; ... ”

“ The following complaints are outside the courts’ jurisdiction : ...

- ... the actions or acts of an official of a body of inquiry , preliminary investigation , prosecution or court with regard to which a non - judicial procedure for considering complaints is established .... ”

( This provision was declared partly unconstitutional as to the complaints “ against the actions or acts of an official of a body of inquiry , preliminary investigation , prosecution ... ” by the decision of ORG . CARDINAL of DATE ) .

“ To declare Article MONEY § CARDINAL of the Code of Civil Procedure as not in compliance with LAW ( unconstitutional ) , concerning the lack of jurisdiction of the courts as regards – ... the actions or acts of an official of a body of inquiry , preliminary investigation , prosecution or court with regard to which a non - judicial procedure for considering complaints has been established ... ”

“ To declare that the following provisions do not contravene LAW ( are constitutional ) :

... CARDINAL . Part CARDINAL of Article CARDINAL , part CARDINAL of Article CARDINAL , in accordance with which the complaints against the resolutions of the investigator or prosecutor concerning the arraignment of the accused shall be considered by the first instance court in the course of the administrative hearing or in the course of the consideration of the case on the merits .

To declare the following not to correspond to LAW ( unconstitutional ) : the provisions of part CARDINAL of Article CARDINAL , part CARDINAL of Article CARDINAL of the Code of Criminal Procedure of GPE , that prevent the consideration of complaints against the investigator or prosecutor at the stage of the preliminary investigation concerning the basis , grounds and the procedure for the initiation of criminal proceedings against a particular person . ”


Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Violation of Article 9 - Freedom of thought, conscience and religion (Article 9-1 - Freedom of religion;Manifest religion or belief);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 1 of Protocol No. 7 - Procedural safeguards relating to expulsion of aliens (Article 1 para. 1 of Protocol No. 7 - Expulsion of an alien;Lawfully resident);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

Mr PERSON and PERSON were born in DATE and DATE respectively and live in GPE , GPE . PERSON is the father and sole custodial parent of PERSON

Since DATE the applicant has been a member of ORG ( “ the NORP ” ) , a spiritual movement founded by Mr PERSON in DATE .

On DATE ORG was officially registered as a religious association in the NORP Socialist GPE .

On DATE ORG of GPE granted ORG re - registration to ORG at federal level as a centralised religious organisation . It did so on the basis of an expert opinion from ORG , which stated , inter alia , the following :

“ In GPE neither ORG nor its leaders have ever been held criminally liable . No violations of the federal law on freedom of conscience and religious associations on the part of ORG or its various representatives have been established . Thus , ( CARDINAL ) ORG is a religious , non - commercial organisation and , accordingly , has the characteristics of a religious association within the meaning of section CARDINAL § CARDINAL of the federal law on freedom of conscience and religious associations ; and ( CARDINAL ) no indication of unlawful activities has been uncovered in its religious teachings and corresponding practice . ”

In DATE the ORG invited the applicant to assist its activities in GPE . ORG of GPE granted the applicant leave to stay in GPE . His leave to stay was subsequently renewed by ORG on a yearly basis through invitations issued by the registered religious organisation of ORG in GPE and an associated social organisation in GPE , ORG ) .

The applicant lived primarily in PERSON - on - Don in southern GPE , where he worked with local branches of the FFWPU and ORG ( ORG ) . He explains that , while ORG , the FFWPU and the ORG and other associations operating in GPE maintain legal independence from one another , they cooperate with one another in pursuit of similar goals . According to the applicant , these organisations acknowledge their origin in ORG founded by PERSON ; their different titles and legal forms reflect the specific focus of their activities and the fact that the social organisations are open to members of other faiths .

On DATE the FFWPU established a local organisation in GPE . Since the applicant ’s host organisation in GPE was responsible for processing his residence registration with the police during the term of his stay , this was subsequently arranged through GPE .

On DATE the acting President of GPE amended , by Decree no . DATE , ORG , adopted in DATE . The relevant paragraph of LAW , “ Ensuring the National Security of the GPE ” , was amended to read :

“ Ensuring the national security of GPE also includes the protection of its ... spiritual and moral heritage ... the forming of a ORG policy in the field of spiritual and moral education of the population ... and also includes opposing the negative influence of foreign religious organisations and missionaries ... ”

On DATE the Promyshlenniy ORG of Stavropol , on an application by the acting PERSON regional prosecutor , decided to dissolve the PERSON regional branch of the FFWPU and ban its activities “ irrespective of ORG registration ” on the ground that it was “ engaged in religious activities under the guise of a registered social organisation ” . On DATE ORG upheld the judgment of DATE .

On DATE the ORG newspaper ran an article on ORG activities in southern GPE which DATE according to the applicant – described in general terms the grounds subsequently endorsed by ORG in favour of his expulsion . It was entitled “ Caramels from PERSON will drive to debility ” ( « ‘ Гуцулочки’ от PERSON до маразма доведут PERSON ) :

“ The prosecutor ’s office of LOC has banned the activity of social organisations under the protection of which the NORP PERSON ... was buying souls for $ MONEY a piece .

Once there were CARDINAL public organisations registered by ORG : ORG ( ORG ) and ORG ) . As it turned out , these so - called public movements preach one of the most dangerous religions of DATE ...

Outwardly inoffensive ‘ ORG who sell or give away the ‘ GPE newspaper and cheap caramels lure young men and women into PERSON ’s family ... PERSON missionaries who were freely permitted to lecture to senior students at PERSON schools introduced themselves as volunteers from ORG ( ORG ) , [ which is ] CARDINAL of PERSON ’s many ‘ parishes’ ...

The self - proclaimed lecturers had no documents authorising them to talk to students . To ‘ sweeten’ the lectures , they distributed caramels . Later , a panel of experts from the PERSON clinic for borderline states gave a negative appraisal of ORG caramels that Moonies distributed to children and adults alike . As it turned out , an outwardly inoffensive caramel destroys the human being ’s energy - information profile . Simply speaking , such caramels with little - known inclusions – in some of them small holes are visible – facilitate the conversion of neophytes into zombies .

The contents of PERSON lectures leave a strong aftertaste of debility . It is sufficient to read the briefing materials [ prepared by ] the ORG DATE an outline of the lecture on ‘ Preparation of a GPE . Citation : ‘ The genitals belong to a spouse and they only serve their purpose in a marital relationship ... Until the marriage you are the guardian of your genitals for your future spouse ... ’

After some time ... [ a certain young man ] was introduced to the head ORG in LOC , PERSON . To the newcomers he was presented as an NORP professor who periodically came to them from PERSON - on - Don ...

In GPE , a mass of associations belong to the ORG movement DATE professors , women and even mass - media employees , including cultural foundations and the aforementioned ORG and FFWPU . All these socialites are preachers of ORG . Meanwhile , DATE the [ upper chamber of ORG ] declared ORG a totalitarian sect and a destructive cult ...

At long last the prosecutor ’s office and ORG of LOC have started working on the Moonies . The regional prosecutor has filed an application ... for dissolution of the ORG and banning of its activities . The same goes for the FFWPU ...

CARDINAL question is still open : why does such a tenacious businessman as PERSON spend [ resources ] on NORP ? There are several theories . Not long ago ... addresses were confiscated from one GPE ... Among them – the address of an NORP , PERSON , who passes his time in PERSON , and CARDINAL e - mail addresses of the ORG . Why should n’t we imagine that PERSON ’s aim ... is to catch our homeland in a spy net consisting of CARDINAL of agents – teachers , scholars , engineers , students and servicemen ... ? ” [ italics as in the original ]

On DATE the applicant ’s leave to stay in GPE was renewed for DATE by ORG on the basis of an invitation from the FFWPU . As before , the applicant registered his residence with the police upon arrival in GPE , through the GPE branch of the FFWPU .

On DATE the applicant ’s son , PERSON , was born . On DATE the applicant and his wife separated ; the applicant ’s wife returned to GPE and the applicant retained sole custody of the child .

On DATE the ORG of GPE - on - Don , on an application by ORG , decided to dissolve PERSON on the ground that it had failed to notify the registration authorities of the continuation of its activities for DATE . According to the applicant , by that time GPE had been incorporated for DATE and had been issued with a new registration certificate by ORG just DATE previously , after undergoing re - registration . According to the judgment , the Rostov FFWPU was incorporated on CARDINAL DATE or DATE , both dates being mentioned as the incorporation date . The hearing was held in the absence of both parties and the ORG learned of the decision after it had come into force on DATE , with no further right of appeal .

On DATE the GPE police summoned the applicant and demanded his passport . They added a stamp to the effect that his registration was “ terminated ” , orally notifying him that the Rostov FFWPU had been dissolved by a court order .

Thereafter the applicant obtained registration with the police through other FFWPU branches , first in PERSON and then in GPE . His residence registration in PERSON was valid for the entire term of his leave to stay under his current visa , that is , until DATE .

On DATE the applicant travelled to GPE . His son stayed in GPE with his nanny .

At TIME on DATE the applicant arrived at FAC in GPE on a flight from GPE . When he reached the passport control booth , CARDINAL officers – CARDINAL male and the other female – examined his passport and visa insert . The male officer left with his documents , while the other told him to wait .

At TIME on DATE the applicant was allowed to cross the border to collect his baggage . Border officials conducted an extensive search of his belongings . Then he was directed back through passport control and out through the passenger entry doors from the tarmac to a flight transfer bus , which took him to the airport transit hall .

Upon his arrival at the transit hall , officials directed the applicant to wait in a small room adjacent to their office with a desk and a sofa , but no phone , ventilation or windows . Once he entered the room , the officials locked him in from outside . Initially the applicant thought that this would be just for TIME , but after TIME he realised that he was being held in an improvised detention cell . He began knocking on the door , asking to be let out . The female officer responded through the door that he would not be let out until TIME , and told him to lie down and sleep . TIME after that a male officer came with the applicant ’s visa stapled to a CARDINAL - page document . He told the applicant that his visa had been cancelled and asked him to sign the document . The applicant did as he was requested , although he could not read the document , which was handwritten in NORP .

At TIME , after knocking and shouting for TIME , the applicant was allowed to leave under guard and use the toilet .

At TIME a man in civilian clothing came to the room and introduced himself as the official in charge of passport control officers . The applicant was told that he would not be allowed to cross the NORP border and that border officials were only following orders and were not responsible for the decision . The man said that he did not know the reason for the decision and could not disclose where the order had come from . The man apologised that the applicant had been held TIME in the room , stating that “ the night crew is not too bright ” .

The applicant bought a ticket to GPE , GPE . A border guard continued to accompany the applicant until he boarded his flight at TIME , returning his passport , but not his visa , only before he entered the aeroplane .

On DATE the applicant sent letters , through his legal representatives in GPE , by registered mail to :

- the Ministry of Foreign Affairs ;

- ORG ( ORG ) and its department in GPE ;

- ORG , the military prosecutor ’s office of that service and ORG ;

- the Ministry of the ORG and its FAC department of passports and visas ; and

- the ORG and Presidential Envoy for ORG .

In these letters the applicant asked why he had been denied entry and detained even though he had committed no violation and why no procedural documents had been compiled or given to him . He also complained that he had been detained for TIME , and that as a result of the exclusion his DATE son had been left behind in GPE without either of his parents . The applicant also requested assistance to be reunited with his son .

On DATE the applicant received a new invitation issued through ORG . On DATE he applied for a visa to enter GPE at the NORP consulate in GPE and on DATE he was issued a multiple - entry visa valid until DATE .

On DATE , while he was crossing the border from GPE to GPE , NORP border guards at passport control twice stamped the applicant ’s visa “ annulled ” and denied him entry into GPE . No explanation was given . The consulate in GPE referred him to the ORG ’s office in GPE .

On DATE the applicant was reunited with his son whom his nanny , a NORP national , had brought to GPE .

Many of the applicant ’s complaints sent on DATE did not receive a response . Of those that did , none addressed the substance of his complaints . Responses from ORG of ORG of DATE and CARDINAL DATE indicated that he had been denied entry into GPE on the basis of section CARDINAL § CARDINAL of LAW , in implementation of an order given by another ( unnamed ) State body . The military prosecutor ’s office responded that the applicant “ had not been placed in administrative detention and therefore no detention record had been drawn up ” .

On DATE the applicant , through his legal representative in GPE , challenged the decision refusing his return to GPE before the ORG of LOC . He filed the challenge on behalf of himself and his son PERSON , listing ORG as defendant .

On DATE , at the directions hearing , the defendants disclosed that they had acted on the orders of ORG ( ORG ) . The court joined the ORG as a co - defendant .

On DATE the defendant requested that jurisdiction be transferred to ORG because matters involving ORG secrets could only be examined by regional courts . The court granted their request in an interim decision .

On DATE , after repeated adjournments , the hearing was held in camera before ORG . The applicant and PERSON were represented by counsel and an officer of ORG in GPE , both of whom were required to give an undertaking not to disclose the contents of the proceedings .

ORG dismissed the complaint . On the issue of whether the applicant had posed a threat to national security , the judgment stated as following :

“ The representative of the first deputy head of ORG , of ORG ... did not accept the appellants’ claims , and presented a written defence to the complaint ... In support of his position the representative pointed out that his client had approved the report to deny GPE citizen PERSON entry into GPE , which was prepared by ORG of ORG on the basis of materials obtained as a result of operational and search measures . In the opinion of NORP ORG experts participating in the preparation of the report , the [ applicant ’s ] activities in our country are of a destructive nature and pose a threat to the security of GPE . The representative ... emphasised that the threat to State security is created by the activities , not the religious beliefs of [ the applicant ] . ”

Nowhere else in the CARDINAL - page text of the judgment did ORG indicate what “ activities ” had posed a threat to national security . It may , however , be inferred from the judgment that the applicant ’s phone conversations had been intercepted by the ORG pursuant to a certain earlier court order .

It also appears that ORG examined an information letter from ORG of CARDINAL DATE , entitled “ Information on the activities of representatives of non - traditional religious associations on NORP territory ” , which stated , in particular , as follows :

“ Representatives of such foreign sectarian communities as the Jehovah ’s Witnesses , PERSON ’s ORG ... under the cover of religion establish extensive governing structures which they use for gathering socio - political , economic , military and other information about ongoing events in GPE , indoctrinate the citizens and incite separatist tendencies ... Missionary organisations purposefully work towards implementing the goals set by certain Western circles with a view to creating the conditions in GPE and perfecting the procedure for practical implementation of the idea of replacing the ‘ socio - psychological code’ of the population , which will automatically lead to the erasing from the people ’s memory of the over a DATE history of GPE and the questioning of such concepts as national self - identification , patriotism , GPE and spiritual heritage ... ”

As to the applicant ’s TIME detention , the officers of ORG denied in court that the applicant had been “ detained ” and claimed that he had bought a ticket to GPE and merely waited for his flight scheduled for DATE . Although ORG established that the ticket had been in fact bought in TIME DATE , it held that this fact was “ of no legal significance ” and ruled that the applicant had not been deprived of his liberty .

ORG also noted that the NORP authorities had not prevented the applicant from reuniting with his son in any country other than GPE . His allegations about interference with his family life were therefore rejected as manifestly ill - founded .

The applicant appealed , citing as grounds , inter alia , that ORG had failed to examine whether the ORG had any legitimate basis in fact for its “ conclusions ” . He relied on LAW , DATE , DATE and CARDINAL of the Convention .

On DATE ORG of GPE , sitting in camera in a CARDINAL - judge formation , dismissed the appeal . It held that there had been no violations of the applicant ’s Convention rights . The judgment was based on the administrative competence of the ORG and ORG to take decisions in the field of national security and border control . It did not indicate what activities of the applicant were alleged to pose a threat to national security :

“ The decision on the issue whether or not the activities of a citizen ( in respect of whom a conclusion barring entry into GPE has been issued ) pose a threat to State security ... comes within the competence of the NORP authorities ... this right of the ORG is one of the basic elements of its sovereignty . Therefore , the [ regional ] court ’s conclusion that the claims of the appellant and his representatives that ORG acted ultra vires are unfounded in the present case . ” [ so in the original ]

A competent authority , such as ORG or ORG , may issue a decision that a foreign national ’s presence on NORP territory is undesirable . Such decision may be issued if a foreign national is unlawfully residing on NORP territory , or if his or her residence is lawful but creates a real threat to the defensive capacity or security of the ORG , to public order or health , etc . If such a decision has been given , the foreign national has to leave GPE or will otherwise be deported . The decision also forms the legal basis for subsequent refusal of re - entry into GPE ( section CARDINAL of the PERSON on the Procedure for Entering and Leaving GPE , no . CARDINAL-FZ of DATE , as amended on DATE – “ FAC ” ) .

A foreign national will be refused entry into GPE if this is necessary for the purposes of ensuring the defensive capacity or security of the State , or protecting public order or health ( section QUANTITY of LAW ) .

The Guidelines on checking the documents of persons crossing the border of GPE , ratified by order no . CARDINAL of ORG of DATE ( “ FAC ” ) , were not published or accessible to the public . The applicant submitted that they contained the following provisions , the authenticity of which was not disputed by the Government :

“ ... upon discovery of [ persons whose entry into GPE is prohibited ] , officials of the border control shall notify them of the grounds for refusing them entry across the border , escort them to isolated LOC and place them under guard , and take measures towards deportation of such persons from the territory of GPE . ”

The ORG or regional treasury is liable – irrespective of any fault by ORG officials DATE for the damage sustained by an individual on account of , in particular , unlawful criminal prosecution or unlawful application of a preventive measure in the form of placement in custody ( Article CARDINAL § CARDINAL of LAW ) . A court may hold the tortfeasor liable for non - pecuniary damage incurred by an individual through actions impairing his or her personal non - property rights , such as the right to personal integrity and the right to liberty of movement ( Articles CARDINAL and CARDINAL of LAW ) . Non - pecuniary damage must be compensated for irrespective of the tortfeasor ’s fault in the event of , in particular , unlawful conviction or prosecution or unlawful application of a preventive measure in the form of placement in custody ( LAW ) .

The Explanatory Report to Protocol No . CARDINAL ( ETS No . CARDINAL ) defines the scope of application of LAW No . CARDINAL in the following manner :

“ CARDINAL . The word ‘ resident’ is intended to exclude from the application of the article any alien who has arrived at a port or other point of entry but has not yet passed through the immigration control or who has been admitted to the territory for the purpose only of transit or for a limited period for a non - residential purpose ...

The word lawfully refers to the domestic law of the ORG concerned . It is therefore for domestic law to determine the conditions which must be fulfilled for a person ’s presence in the territory to be considered ‘ lawful’ .

... [ A]n alien whose admission and stay were subject to certain conditions , for example a fixed period , and who no longer complies with these conditions can not be regarded as being still ‘ lawfully’ present . ”

The ORG further cites definitions of the notion of “ lawful residence ” contained in other international instruments :

“ a. Residence by an alien in the territory of any of the Contracting Parties shall be considered lawful within the meaning of this Convention so long as there is in force in his case a permit or such other permission as is required by the laws and regulations of the country concerned to reside therein ...

b. Lawful residence shall become unlawful from the date of any deportation order made out against the person concerned , unless a stay of execution is granted . ”

“ a. Regulations governing the admission , residence and movement of aliens and also their right to engage in gainful occupations shall be unaffected by this Convention insofar as they are not inconsistent with it ;

b. Nationals of a Contracting Party shall be considered as lawfully residing in the territory of another ORG if they have conformed to the said regulations . ”

The ORG clarifies the notion of “ expulsion ” as follows :

“ CARDINAL . The concept of expulsion is used in a generic sense as meaning any measure compelling the departure of an alien from the territory but does not include extradition . Expulsion in this sense is an autonomous concept which is independent of any definition contained in domestic legislation . Nevertheless , for the reasons explained in paragraph CARDINAL above , it does not apply to the refoulement of aliens who have entered the territory unlawfully , unless their position has been subsequently regularised .

Paragraph CARDINAL of this article provides first that the person concerned may be expelled only ‘ in pursuance of a decision reached in accordance with law’ . No exceptions may be made to this rule . However , again , ‘ law’ refers to the domestic law of the ORG concerned . The decision must therefore be taken by the competent authority in accordance with the provisions of substantive law and with the relevant procedural rules . ”


Violation of Art. 3 (substantive aspect);Violation of Art. 8;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza

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

The parties do not fully agree about the facts of the case , which may be summarised as follows .

The second applicant lived with a group of friends , including the first applicant , mostly students , in an old and decrepit house they had rented in ORG . They occasionally invited their friends to spend TIME or a couple of days in their house .

On TIME DATE there was a group of students sleeping in the house . At TIME they were awakened by QUANTITY police officers patrolling the area . The police enquired whether the inhabitants knew the owner of an unlocked car parked in front of the house .

The applicants and CARDINAL of their friends , PERSON , started a polite discussion with the police officers about the car . It was confirmed that CARDINAL of the residents of their apartment was the owner of the car . However , the police announced their intention of towing the car away to the police car park . The applicants argued that it was not forbidden or illegal to keep the car unlocked . At the police ’s request , they produced their identity cards and the registration card of the car , whose owner was asleep in the house .

The police were not satisfied with their explanation and the dispute became more intense . In reaction to the opinions expressed about the intervention , in particular by GPE , the policemen used truncheons . They hit GPE several times and handcuffed him . The applicants tried to argue with the policemen , to no avail . The police called other police officers and shortly afterwards CARDINAL other policemen arrived . They hit the first applicant with their truncheons several times and the second applicant once . Thereupon PERSON was taken to the police car where he was beaten . The applicants were ordered to stand against a fence . They were pushed and jostled and the policemen insulted them referring to them as “ scum ” , “ slobs ” , “ queers ” ( hołota , brudasy , pedały ) .

Subsequently , a group of policemen , armed with truncheons and guarded by police dogs , entered the house , woke up the other occupants and ordered them to stand against the wall . Then the police searched the house . No information was provided about the grounds , purpose or legal basis for the search . During this time the police showered abuse on the students . They pushed and shoved them . This lasted for TIME . Afterwards , the police left the house and warned the students that some of them were in an illegal situation as they were not registered as inhabitants of the house , and threatened that they would be in trouble if they submitted a complaint about the events .

The police left , taking PERSON with them .

On DATE the applicants requested to be examined by a forensic medicine specialist . It was established that the first applicant had CARDINAL long bruises on his left arm , and other bruises on the palm of his hand . The second applicant had a blue mark on her bottom ( CARDINAL by QUANTITY ) . It was stated that these bruises could have been caused by the use of police truncheons .

The second applicant and her friend PERSON lived in the house with the owner ’s permission . They often received young visitors from all over the country . On TIME in question the unlocked car parked in front of the house had seemed very suspicious to the policemen PERSON and PERSON , who thought it was stolen and considered that it should be towed away . They had knocked at the window and the second applicant informed them that the owner was in the house . She first objected to the police action at TIME , and then went to look for the owner of the car among the CARDINAL young people who were sleeping in the house . The applicants behaved aggressively , loudly expressing opinions about the purpose and nature of the intervention . PERSON raised his voice to the police and pushed PERSON

NORP The police action was a result of the fact that the applicants did not comply with the police requests to provide necessary information . The applicants talked to the police with raised voices and took a very active part in the struggle with the policemen .

The police officer had misinterpreted the first applicant ’s intentions when he handed him his documents and had hit him to prevent his being attacked . The applicant was most probably hit once .

The atmosphere was tense . The owner of the car gave the police the keys and documents to the car . As PERSON was unruly and continued to express objections , the policemen decided to arrest him . While he was being taken into custody by the police , he hit CARDINAL of them in the face . Thereupon truncheons were used against him . Given the attitude of PERSON and of other persons present , the police called for assistance . CARDINAL other police patrols and an emergency team arrived . As the applicants were interfering with the arrest of PERSON , they were hit with truncheons .

Police officers PERSON and PERSON then entered the house to check the identity of the persons present . After that , the intervention was terminated .

On DATE the applicants requested ORG to institute criminal proceedings against the police for abuse of authority . On DATE the prosecutor refused to do so . He found that no criminal offence had been committed .

NORP The prosecutor considered that the police action had been justified . The police could have reasonably suspected that the unlocked car had been stolen , even though it had not been reported as such . The further developments had certainly come as a surprise to both the police and other persons involved in the incident . The second applicant had objected in a pretentious tone ( “ pretensjonalny ton głosu ” ) to having been woken up and to the check on the car taking place at TIME . She had been informed that the car would be towed away if the owner was not found . She could not locate the owner of the car , as there were many people in the house who did not know each other . The second applicant had woken all of them up in an attempt to find the owner .

D. S. had objected in a loud voice to the police intervention . He had insisted that the intention of the police was to harass the persons in the house . As he had not obeyed the police requests to calm down and the verbal exchange between him and the police officer PERSON had become increasingly heated , it had been decided that he should be taken to the police car . The prosecutor considered that this had been justified in the light of PERSON aggressive behaviour . Given that PERSON had been behaving aggressively , direct force had been used against him , including the use of truncheons and handcuffs . It was true that the applicants’ versions of the facts diverged , and these divergences could not be clarified on the basis of evidence from other witnesses , but it was clear that , in the face of his resistance , it had been necessary to use such force in order to take GPE to the car .

Given the applicants’ behaviour , the police had had to call assistance . They had also felt threatened by the presence of other persons at the scene of the incident . The applicants had been hit as they had ignored the order to let PERSON go so that he could be taken to the car . In the darkness , the police had not noticed that the first applicant had in fact had his documents in his hand in order to show them to the police , and they had thought that he intended to hit them .

It was finally noted that the accounts of the facts given by the persons present at the scene , other than the police , were highly divergent , making it impossible to establish the facts of the case . However , the testimony given by the policemen was coherent . Therefore , the submissions of the other persons could not be considered credible and had to be assessed critically .

The prosecutor concluded that the measures taken by the police had been proportionate to the situation .

The first applicant appealed . He argued that the police brutality and aggression had been totally unjustified . Nothing in the behaviour of the persons present had justified the use of force . The police had entered private property and effected a search of the house without any sound reasons , hitting and insulting the persons sleeping in the house . He argued that he was a law - abiding citizen , a student of CARDINAL university faculties and a member of ORG of his town . He had not given any reason to be beaten , verbally insulted and humiliated just at the whim of the police . The police should not intervene in private property at TIME and hit , insult and humiliate people just because they looked , or lived , differently . The facts as established by the prosecutor did not correspond to what had happened . All the facts had been established on the basis of the arguments of the police , who had apparently been instructed by police lawyers as to what they should say . During the questioning the prosecutor had made unpleasant remarks about the hairstyles , clothes and views of the young inhabitants of the house , which had influenced her decision to discontinue the proceedings . He submitted that the police had humiliated both himself and the others .

The second applicant submitted that the assessment of the evidence had been biased and that the police had clearly abused their authority , insulting and humiliating her and other participants in the incident .

On DATE ORG upheld the contested decision . He considered that the intervention of the police had been justified in so far as they wanted to verify the identity of the owner of the car . PERSON had behaved aggressively , both verbally and physically . Regardless of whether he had intended to hit PERSON in the face or not , his behaviour could have been perceived as an intentional assault . It was for that reason that a decision to arrest him had been taken . The identity check of the persons present in the house had been necessary as they had insulted the policemen .

NORP The social status of the young people , namely the fact that they were students , imposed certain obligations on them , in particular an obligation to cooperate with the police in the interest of law and order .

The findings of the inquiry had not established that the students had been insulted verbally by the police , as the policemen consistently denied this . Nothing had been found to support the first applicant ’s submission that the testimony of the policemen had been suggested to them by the police lawyers .

The prosecutor concluded that the contested decision had to be upheld .

The Code of Criminal Procedure contains the following provisions on the search of LOC by the police :

The police ’s powers regarding the use of coercive measures is regulated by LAW of DATE and by the Ordinance of ORG of DATE setting out the conditions and method of application of coercive measures .

Pursuant to section CARDINAL of LAW , within the limits of their competence , the police are required – in order to examine , prevent and detect offences and petty offences – to carry out operational and reconnaissance activity , take part in an investigation or inquiry , or carry out administrative activity and safeguard public order . In the exercise of their powers the police must respect human dignity and human rights ( section CARDINAL ) .

Section QUANTITY of LAW provides that if a person does not comply with the lawful request of police officers they may apply such coercive measures as , for instance , using truncheons .

The police are bound by the principle of minimal use of coercive measures . In accordance with this principle the police must only use such measures when they are absolutely necessary in the given circumstances in order to enforce execution of orders issued by the police ( section QUANTITY ) .

The ordinance setting out the conditions , circumstances and method of application of coercive measures by the police , issued on the basis of section QUANTITY of LAW ( Ordinance of ORG on the Use of Coercive Measures by the Police ) , indicates – among other coercive measures – the use of truncheons .

Section CARDINAL of the ( “ the DATE LAW ) provides :

“ CARDINAL . Physical force shall be used in order to restrain a person , to counter an attack or to make [ a person ] obey an order .

NORP When using physical force , no one shall hit a person , unless he has to do so in self - defence or in order to counter an unlawful attack against life , health or property of others . ”

Section CARDINAL of the LAW , in so far as relevant , provided at the material time :

“ CARDINAL . It is forbidden to use police truncheons against persons displaying passive resistance unless the use of force turns out to be ineffective .

CARDINAL ( CARDINAL ) It is forbidden to hit or push with a truncheon against a [ person ’s ] head , neck , stomach and non - muscled and particularly delicate parts of the body ... ”

Pursuant to section CARDINAL § CARDINAL of LAW a police officer who in the performance of official duties oversteps his powers and violates the personal interests and dignity of a citizen , is liable to imprisonment for DATE .


The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE . He was represented before the Court by Mr NORP Gabl , a lawyer practising in GPE .

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

On DATE ORG ( PERSON ) instituted preliminary investigations against the applicant on suspicion of having committed continuous aggravated fraud ( gewerbsmäßiger schwerer FAC ) and illegal gambling ( PERSON ) . He was suspected of having invented , managed and promulgated an “ investment - game ” called “ the Clou ” , in which the players had to pay a certain sum to the applicant in order to obtain a place on the list of players . Subsequently , they had to entice other players to join the game , the promise being that each player ’s profit would be higher the more players were enlisted thereafter . Furthermore , the applicant was suspected of having raised loans from a number of persons by promising high interest rates , while he only intended to spend the money on gambling .

On DATE the applicant was questioned for the first time by the investigating judge as regards these charges .

In DATE an expert in information technology and an expert in mathematics and statistics were appointed . In DATE the latter was requested to supplement his opinion . In DATE numerous witnesses were heard . In DATE an expert in bookkeeping and an expert in computer technology were appointed .

From DATE to CARDINAL DATE and from CARDINAL DATE to DATE the applicant was placed in detention on remand .

In DATE ORG requested all CARDINAL experts to supplement their opinions .

On DATE the preliminary investigations were concluded .

On DATE ORG lodged the bill of indictment . It was served on the applicant ’s counsel on DATE .

On DATE the trial against the applicant started before ORG .

On DATE , after DATE of court hearings , ORG convicted the applicant of aggravated fraud ( gewerbsmäßiger schwerer FAC ) , misappropriation ( Veruntreuung ) and negligent and fraudulent bankruptcy ( fahrlässige und betrügerische PERSON ) . He was sentenced to CARDINAL years’ imprisonment , DATE of which were suspended on probation . When fixing the sentence , the court found mitigating circumstances for the applicant under section QUANTITY of LAW ) , namely that “ the proceedings against the accused have lasted disproportionately long through no fault of the accused or his counsel ” .

The judgment was served on the applicant ’s counsel in DATE . Neither the applicant nor ORG appealed .

Section CARDINAL of LAW ( PERSON ) , which has been in force since DATE , provides as follows :

" ( CARDINAL ) If a court is dilatory in taking any procedural step , such as announcing or holding a hearing , obtaining an expert ’s report , or preparing a decision , any party may submit a request to this court for the superior court to impose an appropriate time - limit for the taking of the particular procedural step ; unless sub - section ( CARDINAL ) of this section applies , the court is required to submit the request to the superior court , together with its comments , forthwith .

( CARDINAL ) If the court takes all the procedural steps specified in the request within DATE after receipt , and so informs the party concerned , the request is deemed withdrawn unless the party declares within DATE after service of the notification that it wishes to maintain its request .

( CARDINAL ) The request referred to in sub - section ( CARDINAL ) shall be determined with special expedition by a chamber of the superior court consisting of CARDINAL professional judges , CARDINAL of whom shall preside ; if the court has not been dilatory , the request shall be dismissed . This decision in not subject to appeal . ”


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

The applicant was born in DATE and lives in GPE .

On DATE the applicant brought a civil action against the predecessor of ORG ( “ ÁPV Rt ” ) before ORG .

The case was transferred to ORG . It appointed an expert , who filed an opinion in DATE . On DATE the court gave judgment , which was quashed by ORG on DATE .

In the resumed proceedings ORG delivered its judgment on DATE . This decision was quashed on appeal on DATE .

ORG judgment of DATE was again quashed by ORG on DATE .

Finally ORG , acting as a second - instance court , gave judgment on DATE .


András Baka;Antonella Mularoni;Christos Rozakis;Corneliu Bîrsan;Elisabeth Steiner;Giovanni Bonello;Ireneu Cabral Barreto;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Khanlar Hajiyev;Lech Garlicki;Loukis Loucaides;Lucius Caflisch;Luzius Wildhaber;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Stanislav Pavlovschi;Volodymyr Butkevych

NORP The applicant is an NORP public company whose registered office is in GPE , GPE ) . It produces and sells beer under the brand name “ Budweiser ” in a number of countries around the world .

The applicant company has sold beer in GPE under the “ Budweiser ” mark since DATE . It broke into the NORP markets in DATE and says that it began to sell “ Budweiser ” beer in GPE in DATE .

NORP The applicant company ’s decision to extend the sale of its beers to LOC led to a dispute with a NORP – now NORP DATE company called ORG . ORG produces a beer in the town of ORG in GPE ( GPE ) which is also called “ Budweiser ” . The term comes from PERSON , the NORP name for the town . The applicant company alleges that ORG has only been marketing beer under the “ Budweiser ” name since DATE , whereas PERSON says that it has been entitled to use that appellation since DATE , when ORG of ORG conferred the right to produce the beer on a number of independent brewers in České GPE ( PERSON in NORP ) . The brewers used a special technique and beers produced by this method became known by the term “ Budweiser ” , just as beers produced using the methods of another NORP town , PERSON ( NORP in NORP ) , became known as “ NORP ” .

According to the information before the ORG , the applicant company concluded CARDINAL agreements in DATE with PERSON concerning the distribution and sale of “ Budweiser ” beer in GPE . However , these agreements did not deal with the question of the right to use the “ Budweiser ” name in LOC . As a result , the CARDINAL companies became embroiled in a series of legal proceedings over the right to use the term “ Budweiser ” in various NORP countries , including GPE .

On DATE the applicant company applied to ORG ( PERSON ) to register “ Budweiser ” as a trade mark on the industrial - property register . The PERSON did not grant the application immediately because it was opposed by PERSON , which alleged that “ Budweiser Bier ” had been registered in its name as an appellation of origin since DATE . PERSON had effected the registration under the terms of FAC of DATE for ORG and their International Registration ( see paragraph CARDINAL below ) .

The applicant company then applied to ORG on DATE for an order cancelling PERSON registration . A summons was served on PERSON , but it did not file a defence . In a judgment of CARDINAL DATE ( which , in the absence of an appeal , became final ) , ORG granted the applicant company ’s application on the ground that the product to which the registration referred , namely the beer known as “ Budweiser Bier ” , was not an appellation of origin or indication of source . ORG Instance noted that under the terms of LAW of DATE such protection was reserved to the geographical name of a country , region , or locality , which served to designate a product originating therein , the quality and characteristics of which were due exclusively or essentially to the geographical environment , including natural and human factors . “ Budweiser ” did not come within this category . The registration was therefore cancelled .

Following the cancellation of the appellation of origin , and despite the fact that ORG had challenged the application for registration under the opposition procedure , the ORG registered the “ Budweiser ” trade mark in the applicant company ’s name on DATE in a decision that was published on CARDINAL DATE .

On DATE PERSON appealed to ORG against the PERSON ’s decision on the strength of an agreement between the governments of GPE and the Czechoslovak Socialist Republic on ORG , Appellations of Origin and Other Geographical and Similar Designations ( “ LAW ” ) , which was signed in GPE on DATE and which came into force on DATE , after publication in ORG . As required by law , the applicant company was invited by the court to take part in the proceedings as an interested party . In DATE it was served with the originating summons that had been lodged by PERSON .

In a judgment of DATE , ORG Instance dismissed the appeal . It found that the only intellectual property eligible for protection under NORP law and LAW ( which , according to the court was no longer in force , owing to the disappearance of CARDINAL of the contracting parties , GPE ) was the “ PERSON ” appellation of origin , not the “ Budweiser ” trade mark . In addition , it found that there was no risk of confusion between the appellation of origin and the applicant company ’s trade mark , which the vast majority of consumers tended to think of as an NORP beer .

Budějovický Budvar appealed against that decision to ORG , alleging , inter alia , a breach of LAW , sub - paragraphs ( l ) and ( j ) , of LAW . In a judgment of DATE , ORG overturned the impugned judgment and ordered the PERSON to refuse to register “ Budweiser ” as a trade mark . ORG did not consider that there had been a breach of LAW , as the expression “ Budweiser ” was incapable of misleading the NORP public as to the origin of the beer concerned . However , it found that such a registration would infringe LAW and , consequently , LAW j ) of LAW . In that connection , it noted that LAW had remained in force , following an exchange of notes between the NORP and NORP governments ( see paragraph CARDINAL below ) and had been incorporated into domestic law by virtue of LAW , which contained a clause providing for international law to take effect in the NORP legal system .

The applicant company appealed on points of law to ORG alleging , inter alia , that the impugned decision contravened LAW of DATE on ORG ( “ the TRIPs Agreement ” ) , which establishes the rule that registration confers priority , and in particular its LAW and CARDINAL § DATE . The applicant company also alleged that , in any event , the protected appellation of origin “ PERSON ” did not correspond to the NORP expression “ Budweiser ” , so that LAW could not be used to challenge its application for registration . The applicant company argued that , even supposing that the NORP expression “ Budweiser ” was an accurate translation of the NORP appellation of origin , LAW applied only to translations between NORP and NORP , not to translations into other languages . It submitted , lastly , that LAW was unconstitutional owing to a formal defect in that it had been adopted by the government , not ORG , in breach of ORG CARDINAL and CARDINAL of the LAW governing parliamentary sovereignty .

ORG dismissed the appeal on points of law in a judgment of DATE , which came to the applicant company ’s attention on DATE .

With regard to ORG , ORG began by noting that the provision on which the applicant company relied required it to have acted in good faith before going on to say that the applicant company had not referred in its application for registration to any factual information that demonstrated its good faith . In any event , the effect of DATE of ORG was that it had not become binding under NORP law until DATE , that is to say after the entry into force of the DATE LAW . ORG therefore found that ORG could not take precedence over LAW .

As regards the interpretation of LAW , ORG considered that the intention of the CARDINAL contracting GPE in entering into it had incontestably been to protect through reciprocal arrangements their respective national products , including when translations of a name were used . The appellation of origin “ PERSON ” , which became “ PERSON ” or “ NORP ” in NORP , indicated a product from the České GPE region in GPE . It was therefore protected by LAW .

Lastly , the procedure whereby the ORG had been adopted did not contravene Articles CARDINAL and CARDINAL of the LAW , since it did not concern a sphere for which ORG had exclusive competence .

The Agreement between the governments of GPE and the Czechoslovak Socialist Republic on ORG , Appellations of Origin and Other Geographical and Similar Designations was signed in GPE in DATE and came into force on DATE . In a note verbale dated DATE , the NORP Minister for ORG indicated that GPE would succeed GPE as a contracting party to the Agreement . The NORP Minister for ORG agreed thereto on behalf of GPE in a note verbale dated DATE .

DATE Agreement provides , inter alia :

“ CARDINAL . If a name or designation protected under this Agreement is used in commercial or industrial activities in breach of the provisions of this Agreement for products ... all judicial or administrative remedies available under the legislation of ORG in which protection is sought to prevent unfair competition or the use of unlawful designations shall , by virtue of the LAW , be deployed to restrain such use .

NORP The provisions of this Article shall apply even when translations of the said names or designations are used ... ”

Appendix A to the Agreement lists the designations “ ORG pivo ” and “ PERSON ” among the protected appellations of origin .

According to the applicant company , GPE entered into similar agreements with CARDINAL other member ORG , these being GPE and GPE . The agreement between GPE and GPE was signed on DATE and came into force on DATE . The agreement between GPE and GPE was signed on DATE and came into force on CARDINAL DATE .

The Paris Convention of DATE for ORG , as subsequently revised on numerous occasions ( the most recent being in GPE on DATE , United Nations Treaty Series DATE , vol . CARDINAL , pp . CARDINAL et seq . ) , sets up a Union for the protection of industrial property , an expression that encompasses industrial designs , trade marks , appellations of origin and indications of source . The purpose of ORG is to prevent discrimination against non - nationals and it lays down a number of rules of a very general nature dealing with the procedural and substantive aspects of industrial property law . It enables owners of marks to obtain protection in various member ORG through a single registration . It also establishes the priority rule , which grants , for a set period , a right of priority to an application for protection of an intellectual property right in one of GPE over applications lodged subsequently in another Contracting State . The system introduced by this convention is administered by ORG ( WIPO ) based in GPE ( GPE ) .

The following provisions of LAW are of relevance to the present case :

“ A. ( CARDINAL ) Any person who has duly filed an application for ... the registration of ... an industrial design , or of a trademark , in CARDINAL of the countries of the Union , or his successor in title , shall enjoy , for the purpose of filing in the other countries , a right of priority during the periods hereinafter fixed .

( CARDINAL ) Any filing that is equivalent to a regular national filing under the domestic legislation of any country of the ORG or under bilateral or multilateral treaties concluded between countries of the ORG shall be recognized as giving rise to the right of priority .

( CARDINAL ) By a regular national filing is meant any filing that is adequate to establish the date on which the application was filed in the country concerned , whatever may be the subsequent fate of the application .

B. Consequently , any subsequent filing in any of the other countries of the ORG before the expiration of the periods referred to above shall not be invalidated by reason of any acts accomplished in the interval , in particular , another filing , ... the use of the mark , and such acts can not give rise to any third - party right or any right of personal possession . Rights acquired by third parties before DATE first application that serves as the basis for the right of priority are reserved in accordance with the domestic legislation of each country of the Union

C. ( CARDINAL ) The periods of priority referred to above shall be ... DATE for industrial designs and trademarks .

“ ( CARDINAL ) The countries of the ORG undertake , ex officio if their legislation so permits , or at the request of an interested party , to refuse or to cancel the registration , and to prohibit the use , of a trademark which constitutes a reproduction , an imitation , or a translation , liable to create confusion , of a mark considered by the competent authority of the country of registration or use to be well known in that country as being already the mark of a person entitled to the benefits of this LAW and used for identical or similar goods . These provisions shall also apply when the essential part of the mark constitutes a reproduction of any such well - known mark or an imitation liable to create confusion therewith .

GPE , GPE ( succeeded by GPE ) and GPE were all Contracting Parties to LAW at the material time .

LAW Concerning LAW and LAW of DATE establish and govern a system for the international registration of marks that is administered by ORG . ORG was revised in GPE ( DATE ) , GPE ( DATE ) , GPE ( DATE ) , GPE ( DATE ) , GPE ( DATE ) and GPE ( DATE ) . The DATE LAW established the “ GPE ” composed of GPE Parties to ORG and the Contracting Parties to the LAW . GPE became a party to the Agreement on DATE . GPE has not ratified the Agreement . It ratified LAW on DATE .

The system set up by ORG is applicable to the members of ORG and affords owners of a mark a means of securing protection in various countries through a single application for registration in a national or regional registry . Under the system , the registration of an international mark has the same effect in the countries concerned as an application to register the mark or registration of the mark by the owner directly in each individual country . If the trade - mark registry of a member ORG does not refuse protection within a fixed period , the mark enjoys the same protection as if it had been registered directly by that registry .

LAW for ORG and their International Registration was signed in GPE on DATE , revised in GPE on DATE and amended on DATE . It enables ORG to request other ORG to protect appellations of origin of certain products , if they are recognised and protected as such in the country of origin and registered at ORG . Both GPE and GPE , as a successor to GPE , are parties to this Agreement .

The Agreement on Trade - Related Aspects of Intellectual Property Rights was concluded in the Uruguay Round of the negotiations that resulted in the signature in DATE of ORG ( ORG ) Agreements in GPE , which came into effect on DATE . The aim of this Agreement is to integrate the system of intellectual - property protection into the system of world - trade regulation administered by the ORG . The member States of the ORG undertake to comply with the substantive provisions of LAW .

The provisions of ORG of relevance to the present case are as follows :

“ CARDINAL . In respect of Parts II [ Standards Concerning the Availability , Scope and Use of Intellectual Property Rights ] , III [ Enforcement of LAW ] and ORG and ORG ] of this Agreement , Members shall comply with ORG CARDINAL through CARDINAL , and LAW , of LAW ( DATE ) .

“ CARDINAL . The owner of a registered trademark shall have the exclusive right to prevent all third parties not having the owner ’s consent from using in the course of trade identical or similar signs for goods or services which are identical or similar to those in respect of which the trademark is registered where such use would result in a likelihood of confusion . In case of the use of an identical sign for identical goods or services , a likelihood of confusion shall be presumed . The rights described above shall not prejudice any existing prior rights , nor shall they affect the possibility of Members making rights available on the basis of use .

“ Members may provide limited exceptions to the rights conferred by a trademark , such as fair use of descriptive terms , provided that such exceptions take account of the legitimate interests of the owner of the trademark and of third parties . ”

“ Where a trademark has been applied for or registered in good faith , or where rights to a trademark have been acquired through use in good faith either :

( a ) before the date of application of these provisions in that Member as defined in Part VI ; or

( b ) before the geographical indication is protected in its country of origin ;

measures adopted to implement this Section shall not prejudice eligibility for or the validity of the registration of a trademark ... on the basis that such a trademark is identical with , or similar to , a geographical indication . ”

“ Subject to the provisions of paragraphs CARDINAL , CARDINAL and DATE [ which provide for longer periods ] , no Member shall be obliged to apply the provisions of this Agreement before the expiry of a general period of DATE following the date of entry into force of ORG . ”

European Union law contains various instruments designed to regulate and protect intellectual property , including trade marks . The instrument of most relevance to the present case is ORG ( ORG ) No . CARDINAL of DATE on the ORG trade mark , which establishes a right to a ORG trade mark and confers certain rights on applicants for registration . Its aim is to promote the development , expansion and proper functioning of the internal market by enabling ORG undertakings to identify their products or services in a uniform manner throughout the ORG . To that end , ORG for the Internal Market ( OHIM ) has been established ( for trade marks and designs – LAW . It is based in GPE ( GPE ) . Applications for registration of a Community trade mark are sent to the LAW , which decides whether to grant or reject them . An appeal lies against its decisions to the ORG ’s ORG , and from there to ORG of ORG ( Articles DATE ) .

DATE , which is entitled “ The application for a Community trade mark as an object of property ” , lays down that the provisions relating to Community trade marks also apply to applications for registration . These provisions include LAW ) , LAW in rem ) , LAW of execution ) and LAW ) . By virtue of LAW , an application for registration may also found a claim for compensation .

Finally , LAW of the draft LAW establishing a LAW for LOC , signed on DATE , but not yet in force ) , which guarantees the right to property , provides : “ Intellectual property shall be protected . ”

In accordance with the relevant international instruments , the legislation of most of the member ORG regards registration as a corollary to the acquisition of the right to the mark . However , the vast majority of the States also regard the application for registration of the mark as conferring certain rights . In most cases , once registered the mark is deemed to have been valid since the date the application for registration was filed ( system of retrospective protection through registration ) . The date of filing also determines priority in the system of international marks . Lastly , in some countries , an application to register a mark may itself be the subject of provisional registration , while in others it may be the subject of an assignment , security assignment or licence and ( provided the mark is subsequently registered ) create an entitlement to compensation in the event of fraudulent use by CARDINAL party .

NORP In most countries , registration is preceded by publication of notice of the application and a procedure whereby interested parties can oppose registration in adversarial proceedings . However , in some countries , registration is automatic if the competent authority is satisfied that the application satisfies the formal and substantive requirements . In both cases , in accordance with the applicable international rules , an action to have a mark revoked or declared invalid may be brought within a set period . Such actions may be based on grounds such as valid prior title , prior application , right to international priority or a failure to use the mark for a certain period .

The substantive and procedural law of industrial property at the material time was contained in CARDINAL successive Codes of Industrial Property , the first introduced by LAW no . DATE of CARDINAL DATE and the second by LAW no . CARDINAL of DATE . It was the latter Code which the domestic courts applied in the instant case .

The DATE Code provided a right of priority identical to that set out in LAW ( Article CARDINAL ) . Priority was determined by reference to the date the application for registration was filed ( Article CARDINAL ) . By virtue of Articles CARDINAL and CARDINAL , the application for registration itself could be the subject of an assignment , with or without consideration , or a licence .

The other provisions of the Code of relevance to the present case read as follows .

“ CARDINAL . The certificate of registration shall be issued to the interested party DATE after the time - limit for appealing has expired or , if an appeal has been lodged , once the final judicial decision has been delivered .

The certificate shall be issued to the holder or to his or her representative upon presentation of a receipt . ”

“ An appeal against a decision of ORG may be lodged by the applicant , a person who has filed an opposition or any other person who might be directly affected by the decision . ”

“ Appeals must be lodged within DATE after the date of publication of the decision in ORG or , if earlier , the date a certified conformed copy of the decision is obtained . ”

“ CARDINAL . Registration shall also be refused of a mark ... containing CARDINAL or all of the following :

( j ) expressions or forms that are contrary to morals , domestic or Community legislation , or public order ;

( l ) signs liable to mislead the public , in particular as to the nature , quality , use or geographical source of the product or service to which the mark relates ;

Appeals against a decision by the PERSON to register a mark had to be lodged with ORG ( Article CARDINAL of Legislative - Decree no . CARDINAL ) . The Code did not indicate whether they had suspensive effect .

In a judgment of CARDINAL DATE ( PERSON [ Case - law collection ] , DATE , vol . III , p. CARDINAL ) , ORG held that the mere filing of an application for registration conferred on the applicant a “ legal expectation ” ( expectativa jurídica ) that justified the protection of the law . LAW , which was introduced by LAW no . CARDINAL/CARDINAL of CARDINAL DATE and came into force on DATE , provides “ provisional protection ” of the mark even prior to registration and entitles the applicant to bring an action in damages on the basis thereof .