Violation of Art. 6-1;Violation of P4-2-2;Non-pecuniary damage - financial award

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

On DATE the applicant was driving from GPE and crossed the border to GPE at the checkpoint at Maljevac . He was stopped by a customs officer for a routine check .

The applicant gives the following account of what happened at the border checkpoint . Before arriving in GPE , the applicant and another person , GPE , had purchased CARDINAL cartons of cigarettes and QUANTITY of cooking oil .

At the border checkpoint they were approached by a customs officer who asked the applicant if he had anything to declare . The applicant pointed at the purchased goods , lying in the backseat of the car , inviting the customs officer to take a look . The officer then asked the applicant to show him his passport . While holding the applicant 's passport the officer told the applicant that he had failed to declare the goods and thus committed a customs offence . He asked the applicant to pay a fine in the amount of CARDINAL NORP PERSON ( hereinafter HRK ) .

NORP The applicant told the officer that he could not pay the fine right away because he did not have enough money on him . The officer did not return the applicant 's passport and told him that he would receive his passport when he had paid the fine . The applicant then continued to GPE .

The Government gave the following account of the facts . While entering GPE the applicant failed to declare goods that he had purchased in GPE . However , a customs officer found CARDINAL cartons of cigarettes and QUANTITY of cooking oil in the applicant 's car . He routinely fined the applicant with HRK CARDINAL [ QUANTITY ] for a minor customs offence . The applicant was immediately given a document which stated that he was fined with HRK CARDINAL for having failed to declare CARDINAL cartons of cigarettes he was importing . The applicant signed the document . During this procedure the applicant 's passport was kept by the customs officer , who had intended to return it to the applicant . However , the applicant refused to pay the fine and demonstratively drove away , leaving his passport behind .

On DATE the applicant wrote from his address in PERSON to ORG , ORG asking that his passport be returned .

On DATE ORG replied to the applicant 's address in PERSON that the custom officers acted in accordance with law when they seized the applicant 's passport because he had refused to pay the fine for a customs offence which he had committed by failing to declare goods at a border checkpoint . They relied on Sections CARDINAL to CARDINAL of LAW which , inter alia , provided that a person , while crossing a customs check point , had to declare and show all goods that he was importing . Failure to declare such goods represented a customs offence . The letter also stated that since the applicant had not declared the goods that he had been importing to GPE , he had committed a customs offence under LAW and fined pursuant to LAW . The applicant 's passport had been kept because the applicant had refused to pay the fine . The letter contained no indication of how and when the applicant 's passport would be returned .

Although the applicant did not pay the imposed fine no other proceedings were instituted against him for the alleged customs offence .

In the meantime , on DATE , ORG , apparently having decided not to institute any further proceedings against the applicant , handed over the passport to ORG . The Police noticed , however , that the applicant was registered as living in GPE for which reason , on DATE , the passport was sent to ORG .

On DATE ORG wrote to the applicant 's registered address in GPE inviting him to collect his passport . The letter was returned . On DATE ORG wrote once more to the applicant , but the letter was again returned . The receipt showed that the applicant was unknown at that address .

The Police discovered subsequently that the applicant , although registered as living in GPE , actually lived in PERSON . On DATE the passport was sent to ORG which invited the applicant to collect his passport . He did so on DATE .

Having received the ORG letter of CARDINAL DATE the applicant filed a civil suit on DATE in ORG against ORG , seeking the return of his passport and damages flowing from his inability to leave GPE . He also requested the court to adopt an interim measure and order that his passport be returned to him immediately .

On DATE the applicant also filed an application in the ORG claiming that the seizure of his passport by a customs officer was an unlawful act and that therefore , his right to freedom of movement had been violated . He requested the court to order ORG to return his passport forthwith .

On DATE ORG dismissed the applicant 's claim . It found that a claim for protection from an unlawful act was permitted only if there was no other remedy available . In the opinion of the court the applicant had at his disposal another remedy - a civil action for the return of his property . Accordingly , it instructed the applicant to institute civil proceedings in a municipal court against ORG for the return of his passport .

The applicant appealed against the decision .

NORP The applicant 's appeal was rejected on DATE by ORG ( PERSON ) .

In the meantime , at a hearing on DATE ORG , in the proceedings instituted on DATE , against ORG , separated the applicant 's claim for damages from the claim for return of the passport .

Concerning the claim for return of the applicant 's passport the next hearing was held on DATE . At that hearing the court heard the applicant and then decided to hear ORG , who was with the applicant in the car at the material time . It was furthermore agreed between the parties to adjourn the issue of damages pending the outcome of the claim for the return of the passport .

At a hearing on DATE the court heard the customs officer who took the applicant 's passport . It also invited the applicant to submit within DATE a copy of the letter that he had sent to ORG as well as their reply .

On DATE the applicant submitted ORG reply of CARDINAL DATE .

At a hearing on DATE the court heard another customs officer and once again the applicant . It then rejected the applicant 's request for an interim measure finding that the applicant 's main claim , i.e. to have his passport returned , was exactly the same as his request for the interim measure and that , therefore , such a request could only be decided after the court established all the relevant facts of the case .

On DATE the applicant filed an application asking that the judge be removed from the case . On DATE the President of ORG rejected the applicant 's motion .

The next hearing was held on DATE . The applicant informed the court that on DATE ORG had returned his passport . Therefore , he no longer sought the return of his passport but instead sought a declaratory decision to the effect that on DATE his passport was taken from him by the NORP authorities and returned on DATE . He also sought costs .

On DATE the applicant filed submissions with the court repeating the statements and claims he made at the hearing on DATE .

On DATE the applicant 's counsel appeared before the judge and agreed to reformulate the applicant 's claim having regard to the fact that the passport had already been returned to him .

The next hearing was held on DATE during which it was formally recorded that the passport had been returned to the applicant . The applicant 's counsel sought from the court permission to specify the applicant 's remaining claims . The court allowed her to do so within DATE .

On DATE the applicant himself filed submissions to the court reiterating the same claims as those submitted on DATE . No additional claims were submitted by the applicant 's counsel .

On DATE the applicant again filed an application asking that the judge be removed from the case . The President of the court accepted the request and the case was transferred to another judge .

Following a hearing on DATE the court dismissed the applicant 's claims . It found that the applicant had no further legal interest in seeking a declaratory decision that his passport had been taken from him by the NORP authorities on DATE and then returned on DATE . The applicant was also ordered to pay the defendant 's costs .

The applicant 's subsequent appeal was dismissed and the first instance decision was upheld by ORG ( Županijski sud u GPE ) on DATE . It held that the applicant had no legal interest in seeking a declaratory decision and that ORG decision on the costs of the proceedings was well - founded because the applicant had lost his case .

According to the applicant the proceedings concerning his claim for damages have never been resumed and on DATE the case was closed without any decision on the merits been taken .

According to the Government the case has not been closed and the proceedings are still pending .

According to Sections CARDINAL and CARDINAL of the Act on Travel Documents of NORP Citizens ( Zakon o putnim ispravama hrvatskih građana - ORG no . CARDINAL/CARDINAL , hereinafter LAW on Travel Documents ” ) a passport will be seized when there is a reasonable suspicion that :

- a person is acting against the laws regulating customs or foreign trade .

Relevant parts of LAW ( PERSON , ORG no . ORG ) provides , inter alia , that a person who , when crossing a border , does not declare the goods for his or her personal use shall be fined .


WIESZCZEK AND STOWARZYSZENIE MIESZKANCOW v. POLAND

The first applicant , PERSON , a NORP national , is also a statutory representative of the second applicant , an ORG ( ORG ) with headquarters in GPE Wola . She also represents the second applicant before the ORG .

At a meeting held on DATE the applicant association distributed among its members CARDINAL copies of an election leaflet of which it had printed CARDINAL copies . The leaflet exhorted the members of the association to vote in the municipal elections scheduled for DATE . It was further stressed that no votes should be cast in favour of these representatives of the local parties who had been using their position in various municipal authorities to enrich themselves by being involved in dubious business deals , to the detriment of the public interest and municipal finances .

In this context name of CARDINAL of the local councillors , PERSON , who also was a candidate to the council in the coming elections , was mentioned . It was alleged that she had , contrary to applicable laws regulating the status of local councillors , been combining her function of councillor with a paid post on the governing board of CARDINAL of public companies owned by the municipality , obtaining a “ nice salary ” ( “ pensyjka ” ) .

Subsequently PERSON instituted proceedings on the basis of the CARDINAL LAW . This LAW made it possible for the election candidates to institute proceedings in which to claim that untrue information published about them during the election campaign be rectified and that apologies be published ( see Relevant domestic law ) . The plaintiff argued that she had indeed been a member of the governing board of CARDINAL company owned by the municipality , but only from DATE until DATE , before she had become a councillor . Afterwards , she had stepped down . As it transpired from the leaflet concerned that she remained on the board , contrary to the applicable anti - corruption provisions of the DATE ORG ( County ) Act , the leaflet was disseminating false information , detrimental to her reputation and to her prospects of being elected .

On DATE ORG held a hearing during which it questioned the parties . It had also regard to the evidence submitted by the plaintiff , including a letter of ORG dated DATE , from which it transpired that PERSON had been on the board of ORG company owned by ORG from DATE to DATE . It further took evidence from the documents of the company , from which it transpired that ORG had ceased to be on its governing board on DATE .

On DATE the court gave a ruling , in which it ordered the applicant association and the applicant to cease dissemination of information concerning ORG alleged involvement in the governing board of that company . It also ordered forfeiture of the remaining copies of the leaflet , ordered the applicant association to publish apologies in a local newspaper and to pay the plaintiff ’s costs in the amount of PLN MONEY . The court dismissed the plaintiff ’s request that the association be ordered to pay PLN CARDINAL,CARDINAL to the local children ’s home .

The court established that it was not in dispute that the leaflet had been authored and distributed by the bodies of the applicant association and that it contained an allegation that ORG had at the time of its distribution been a member of the governing board of CARDINAL company , owned by the municipality of GPE . The court noted that if this had been true , it would have been in breach of the anticorruption provisions of the DATE ORG ( County ) Act .

Having regard to the documents of the company and to the letter of ORG of Stalowa Wola submitted by ORG , the court found that it indeed had been the case , but only from DATE until DATE . On DATE she had ceased to serve on the board , Hence , the allegations that she retained this post afterwards and continued to receive a salary were untrue . Therefore , under LAW of DATE on Elections to GPE , ORG , this information had to be rectified . Consequently , the court ordered that the remaining copies of the leaflet should be forfeited and that the applicant association should publish in a local newspaper apologies for disseminating untrue information during the election campaign .

As for the plaintiff ’s demand of payment of ORG MONEY by the association , the court found that such payment would constitute a serious blow to its finances , which in any event were in a quite precarious position , given the relative newness of the association . The association had had no time in which to find any serious source of income , other than the membership fees . The court further observed that if it had ordered the association to make this payment , this might seriously impair its ability to act and also constitute an interference in the democratic process of election , unduly improving the plaintiff ’s chances to be elected .

The court further noted that such an order would not serve any useful purpose for the protection of the plaintiff ’s interests and reputation , which were sufficiently ensured by the forfeiture of the remaining copies of the leaflet and by the order to publish apologies by the association .

The applicant association appealed , arguing essentially that in the light of document it had at its disposal , the information contained in the leaflet was true and that the judgment was generally wrong .

On DATE ORG dismissed the appeal , considering that the findings of fact made by the lower court that PERSON had ceased to be on the governing board of the company in DATE were correct . The use of the present tense in the impugned leaflet clearly suggested that , in contravention of laws governing the status and obligations of municipal councillors , she still remained on the board and had been obtaining emoluments for her work . This was obviously untrue , and therefore the first - instance judgment was correct .

Article CARDINAL of the Law of DATE on Elections to GPE , ORG provided , in so far as relevant :

“ § CARDINAL . If posters , slogans , leaflets , statements or other forms of propaganda and campaigning contain untrue data and information , a candidate standing for local election or a representative of an electoral committee has the right to make an application asking ORG to :

CARDINAL ) NORP order the confiscation of such materials ,

CARDINAL ) NORP issue an injunction restraining [ the defendant ] from publishing such data and information ,

CARDINAL ) NORP order rectification of the information ,

CARDINAL ) NORP order [ the defendant ] to apologise to the aggrieved party ,

CARDINAL ) NORP order [ the defendant ] to pay to a charity up to PLN CARDINAL,CARDINAL ,

CARDINAL ) NORP order [ the defendant ] to pay to the claimant up to FAC CARDINAL,CARDINAL in damages .

§ CARDINAL . ORG , sitting as a single judge , shall examine the application referred to in DATE within TIME in [ civil ] non - contentious proceedings . [ ... ] . The court shall serve on the interested party referred to in § CARDINAL , the relevant regional electoral commissioner and the person obligated to execute the court ’s decision , without undue delay , a decision terminating the proceedings in the case .

§ CARDINAL . The decision of ORG may be appealed to ORG within TIME from the moment it was pronounced . ORG , sitting as a panel of CARDINAL judges , shall examine the appeal in [ civil ] non - contentious proceedings , according to the same procedure and within the time - limit referred to in § CARDINAL . No appeal shall lie against the decision of ORG and such decision shall be enforceable with immediate effect . ”


Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

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

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

An acquaintance of the applicant disappeared in DATE while visiting the applicant in GPE . On DATE the police questioned the applicant , as a witness , about this disappearance .

On DATE the applicant was apprehended and arrested on suspicion of murdering his acquaintance . On CARDINAL and DATE he was interrogated by the police . At the latter interrogation the applicant 's counsel was present for the first time .

On DATE ORG ( käräjäoikeus , tingsrätten ) ordered in camera that the applicant be detained and that the deadline for bringing the charges was DATE . This decision was not subject to appeal .

On DATE , opposing the detention , the applicant lodged , in accordance with LAW , section CARDINAL , subsection CARDINAL , of LAW , a complaint ( kantelu , klagan ) with ORG ( hovioikeus , hovrätten ) . He claimed that there was no probable cause to believe that his acquaintance was dead , that he had been killed or that the applicant had killed him either acting alone or in concert with others . He also referred to LAW . On DATE ORG found that the complaint did not give cause to lift the applicant 's detention .

By application dated DATE the applicant sought leave to appeal to ORG ( korkein oikeus , högsta domstolen ) , repeating the arguments already put forward before ORG . On DATE the court refused leave to appeal .

On DATE , having heard that the public prosecutor was planning to request an extension of the time - limit for bringing the charges , the applicant 's counsel informed the police that the applicant would oppose this and that he would also request a re - examination of his detention . For this reason , the counsel requested , on the basis of ORG ( laki viranomaisten toiminnan julkisuudesta , lag om offentlighet i myndigheternas verksamhet ; Act no . CARDINAL ) , that the following documents be submitted to him by the police in good time before the re - examination of the applicant 's detention :

In general , the applicant 's counsel wished to obtain clarification concerning the matters which had arisen in the course of the investigation , as referred to in FAC ( esitutkintalaki , förundersökningslag ; Act no . CARDINAL/CARDINAL ) . He wished to obtain for example the preliminary introduction to the forthcoming investigation records , if such an introduction had been drafted .

On DATE the applicant 's counsel received from the police the investigation records and the records drawn up of the investigation conducted by the police dogs . He was told that the transcriptions of the wiretapping and of the monitoring of telecommunications were included in the investigation records .

On DATE the chief of police confirmed this by a decision which was subject to appeal . According to the said decision , the applicant was denied access to the other documents on the basis of sections CARDINAL and DATE , subsection CARDINAL , of ORG as the investigation was pending and access to such documents would have compromised the investigation of the matter . In addition , the applicant was denied access , on the basis of LAW of LAW , to an overall report on the state of the criminal investigation on the same grounds . Finally , according to the decision , there were no documents speaking against the applicant 's guilt .

On DATE the public prosecutor requested an extension of the time - limit for bringing the charges . In this connection the applicant 's counsel found out that another person who was under suspicion for the same crime had been detained by the same ORG on DATE . The applicant 's counsel requested copies of the detention order and the application for it .

On DATE the public prosecutor denied access to these documents by referring to the fact that ORG had examined the matter in camera . Moreover , ORG had declared the application for detention and its appendices , and most parts of the detention order confidential . Due to the denial , these documents were consequently withdrawn , in the applicant 's case , from the documents submitted to the court by the public prosecutor . Moreover , the prosecutor stated that the police investigation of the matter was still pending and the matter had not yet been referred to the prosecutor for the consideration of charges . Consequently , any information concerning the investigation was to be given by the police , not by the prosecutor . The applicant 's counsel was given directions on how to appeal , should the public prosecutor 's refusal be considered as a decision against which an appeal lay .

On DATE the applicant requested ORG , when examining the request for extension of the time - limit , also to re - examine the matter of his detention .

On DATE the matter was examined before ORG . The applicant opposed the extension of the time - limit and claimed that the public prosecutor and the court had had greater access to the files than he . He denied the existence of a probable cause . ORG decided to extend the time - limit for bringing the charges until DATE and to hold the applicant in pre - trial detention . By way of reasoning , it stated that , according to the information received from the police and the public prosecutor , nothing in the criminal investigation had lessened the degree of probable cause which had formed the basis of the applicant 's initial detention . This decision was not subject to appeal .

The applicant was subsequently convicted of murder .

According to LAW , section CARDINAL , subsections CARDINAL and CARDINAL , of LAW ( pakkokeinolaki , tvångsmedelslag ; Act no . PERSON , as amended by Act no . CARDINAL entering into force on DATE ) , if a suspect of a crime has been detained , the court deciding on the charges as the first instance must re - examine the detention matter promptly , and at the latest within DATE from the request , if a detainee makes such a request . The issue of detention does not need to be re - examined DATE after the previous examination . Moreover , when re - examining the detention matter , the detainee or his or her counsel must be provided with an opportunity to be heard , unless it is deemed unnecessary . A detainee must be heard in person if he or she so requests or if the court deems it necessary .

LAW , section CARDINAL , of the same LAW provides that a court must release a detainee immediately if it considers that the conditions for the detention no longer exist .

Under LAW , section CARDINAL , subsections CARDINAL and CARDINAL , of the same LAW , there is no ordinary appeal against a decision given in a detention matter but it is nevertheless possible for a detainee to challenge the detention by lodging a complaint ( kantelu , klagan ) with the competent court .

ORG released , for example , in the case ORG CARDINAL , a detainee who had lodged a complaint , as the conditions for the detention no longer existed .


Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Non-pecuniary damage - award

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

PERSON Fileva is a NORP national who was born in DATE and lives in GPE .

On DATE the applicant , at that time an employee of the GPE agricultural land commission ( “ the land commission ” ) , was questioned on suspicion of abuse of office . She was suspected , inter alia , of attempting to impede the adoption of amendments to a land redistribution plan adversely affecting plots of agricultural land previously restored to her husband , a member of ORG at the relevant time .

Criminal proceedings were instituted soon afterwards , on DATE . On DATE the applicant was charged with CARDINAL offences – one committed in DATE and the other CARDINAL in DATE .

In DATE the case was placed on a special register in ORG , apparently because it was considered to have a corruption element .

The investigation of the case against the applicant continued until DATE .

On DATE the GPE regional public prosecutor ’s office terminated the criminal proceedings against the applicant . It was concluded that the applicant ’s actions relating to the events of DATE did not constitute a crime and that it had not been proved that the applicant had been party to the offence in DATE .

NORP On DATE , following an internal review of cases ordered by ORG , a prosecutor from the GPE appellate public prosecutor ’s office quashed the decision of DATE and ordered the resumption of the criminal proceedings against the applicant , on the ground that the investigation had been incomplete and that the conclusions reached did not correspond to the evidence collected . In particular , it was noted that a key witness – the chairman of the land commission who had established breaches of duty on the part of the applicant – had not been questioned and that the applicant should have been questioned again in relation to CARDINAL of the charges .

On DATE the applicant was presented with modified charges , consisting of CARDINAL counts of abuse of office and CARDINAL count of drawing up a false document in an official capacity . On DATE , the criminal proceedings in respect of the offence committed in DATE were terminated , as it had not been proved that the applicant had been a party to the offence , and as the prosecution had now become time - barred .

On DATE ORG convicted the applicant and gave her a suspended sentence of CARDINAL years’ imprisonment .

In a judgment of DATE ORG acquitted the applicant on one of the counts of abuse of office and upheld the conviction on the remaining counts . It reduced the applicant ’s sentence to a suspended term of DATE imprisonment . That judgment was upheld by ORG in a final judgment of DATE .

On DATE the applicant , relying on the termination of the criminal proceedings against her of DATE , brought an action for damages under the ORG and ORG ( “ the ORG ” ) against the prosecuting authorities for unlawful prosecution .

The applicant submitted that on DATE her representative in the domestic proceedings was told by a prosecutor at the GPE regional public prosecutor ’s office that bringing an action under the ORG could have unfavourable consequences for the applicant . On an unspecified date in DATE the same prosecutor told the applicant ’s representative that she had made a mistake in pursuing the proceedings for damages against the advice given on DATE , as the criminal proceedings against the applicant had been resumed .

On DATE the applicant ’s representative sent an open letter through the NORP media to ORG office , averring that the prosecution authorities had resumed the proceedings against the applicant in retaliation for the proceedings for damages she had brought against the ORG . CARDINAL other case similar to that of the applicant was reported by the media .

In a newspaper publication ORG denied the allegations made in the letter of DATE .

In a newspaper published on DATE a spokesperson for the GPE appellate public prosecutor ’s office was quoted as stating that it was against the interests of the prosecuting authorities to allow claims engaging the ORG ’s responsibility , as this adversely affected the NORP taxpayer . Also , ORG was quoted as stating that there was cause for concern , in that the lack of criteria for the resumption of criminal proceedings left scope for abuse of process . Further , in a newspaper published on DATE the applicant gave her account of the events stating she was innocent .

In a judgment of DATE ORG rejected the applicant ’s action for damages . The court held that because criminal proceedings were pending against the applicant her action had been brought prematurely . As to the period before the proceedings were terminated , the ORG found that in view of their resumption in DATE the proceedings up to that moment could not be considered unlawful , nor had the ORG ’s responsibility been engaged in that respect .

The applicant appealed . In a judgment of DATE ORG found against her . The court dismissed the applicant ’s request for the proceedings to be stayed until the resumed criminal proceedings against her had ended , reasoning that this was irrelevant to the outcome of her civil action for damages , which was grounded on her claim that the criminal proceedings had been terminated . In the absence of a final act terminating those proceedings the action for damages could not be upheld .

In a final judgment of DATE ORG quashed the lower court ’s judgment in part . It allowed the applicant ’s action in so far as the criminal proceedings relating to the DATE offence , which had been terminated , were concerned ( see paragraph CARDINAL above , in fine ) and awarded her MONEY ( ORG ) . The court reasoned that the applicant ’s right to compensation arose on the date of the second termination of those proceedings on DATE and not from the termination on DATE . It subscribed to the lower court ’s conclusions in respect of the charges related to the offences committed in DATE , namely that there had been no final act terminating the criminal proceedings against the applicant given that the proceedings had been resumed .

Section CARDINAL(CARDINAL)(CARDINAL ) of the DATE Act provides as follows :

“ The ORG shall be liable for damage caused to individuals by organs of [ the investigation ] , the prosecution and the courts through unlawful :

NORP bringing of criminal charges , if the person concerned has been acquitted or if the criminal proceedings are discontinued because the offence was not committed by the person concerned , or [ that person ’s ] act does not constitute a criminal offence ... ”

Individuals who have been acquitted or had the proceedings against them discontinued on CARDINAL of the grounds set forth in section CARDINAL ) DATE which , according to an interpretative decision of ORG ( тълк. реш. № CARDINAL от CARDINAL април DATE г. по тълк. гр. д. № CARDINAL г. , ORG на ВКС ) , include discontinuance because the charges have not been made out DATE can obtain compensation for the mere fact that criminal proceedings have been instituted against them . Paragraph CARDINAL of the transitional and concluding provisions of LAW provides that all matters which have not been addressed in the LAW are to be resolved in line with the general provisions of civil and labour law . LAW , which is also applicable to proceedings under LAW ( тълк. реш. № CARDINAL от CARDINAL април DATE г. по т. гр. д. № CARDINAL/CARDINAL г. , ORG на ВКС ; реш. № CARDINAL от DATE г. по адм. д. № DATE г. , PERSON , ORG ) , provides that the limitation period for tort claims is DATE .

Any decision under LAW DATE Code in which the conditions for termination set by that provision had not been met and which had not been appealed against before the courts could be quashed by the appropriate higher - ranking prosecutor ’s office of its own motion ( LAW ) . That was not limited in time and could be done at any time before the prosecution became time - barred .

The text of LAW was reproduced in LAW ( “ the DATE Code ” ) . On DATE a draft law proposing , inter alia , an amendment of Article CARDINAL § DATE Code setting a DATE term for resuming previously discontinued criminal proceedings was rejected by the NORP parliament . The draft law reasoned that the amendment was necessary in view of the lack of stability of the prosecution authorities’ acts discontinuing criminal proceedings and the fact that their discretion to resume proceedings was not limited in time .

By virtue of LAW of LAW , any decision of the prosecution to terminate criminal proceedings was subject to appeal before the courts by the accused or the victim of the alleged offence within DATE following notification of the decision . The courts were competent to uphold or quash the decision terminating the proceedings or to amend the grounds for termination . The existence of a final decision of a public prosecutor to terminate the criminal proceedings or of a final court ruling upholding a decision of the prosecution to that effect was an absolute obstacle to prosecuting the same person for the same offence ( LAW CARDINAL ) of LAW ) .


Violation of Art. 8;No separate issue under Art. 6;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

In DATE the Dettingen municipal authorities imposed a fine of MONEY ( ORG ) , plus costs amounting to DEM CARDINAL , on GPE , the applicant 's son , for having exceeded the speed limit of QUANTITY / h on TIME of CARDINAL DATE , when travelling in a car belonging to the ORG private limited company ( Regulations CARDINAL § CARDINAL ( CARDINAL ) and CARDINAL § CARDINAL ( CARDINAL ) of ORG and section CARDINAL of LAW – see “ Relevant domestic law ” below ) . The applicant is the owner and manager of that company .

On DATE V.B. lodged an objection against the administrative decision imposing the fine .

On DATE the trial in the case opened before GPE . GPE pleaded not guilty , stating that CARDINAL other persons could have been driving the company car in question on DATE . The applicant , summoned as a witness , refused to give evidence , as he was entitled to do as a family member . The hearing was adjourned to DATE .

On DATE around TIME the applicant , on being asked by a policeman to give evidence about his employees in connection with the proceedings against his son , stated again that he did not wish to do so and that none of his employees was currently working on the business LOC . On DATE a police officer , on the order of ORG judge , asked the city of PERSON to provide a passport photograph of the applicant 's son . Police enquiries from the PERSON trade authorities ( PERSON ) about the applicant 's employees at the relevant time had led to nothing .

On DATE , at an unknown time , GPE , in the context of the above proceedings against GPE , issued a warrant to search the business and residential LOC of the applicant . The warrant read as follows :

“ In the context of the preliminary investigations against

... [ V.B. ] ...

concerning

the contravention of a traffic regulation ,

pursuant to LAW without a prior hearing , in accordance with LAW , CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL § CARDINAL , CARDINAL et seq . , and CARDINAL of the Code of Criminal Procedure and section CARDINAL of LAW ,

NORP the search of the business and residential premises of the father , PERSON , ... , CARDINAL ... Street , Dettingen / Erms , ORG company ;

NORP the seizure of documents that reveal the identity of the employees of ORG in ... PERSON between CARDINAL May and CARDINAL DATE

are ordered .

Reasons :

The son of the manager of ORG , who is charged with having committed , on CARDINAL DATE , a contravention of LAW of FAC with a company car , has stated at the trial hearing on DATE that a driver employed by the company could have committed the offence .

The search of the residential and business LOC in GPE , a town of some CARDINAL inhabitants , was effected DATE TIME by CARDINAL police officers from the local police station . Several documents , such as personnel files and statements on TIME , were seized ; copies were made and the originals were given back to the applicant DATE . The documents disclosed the names of CARDINAL persons , QUANTITY women and QUANTITY men , who had been employed by the applicant 's company at the relevant time and revealed , furthermore , that another relative of the applicant could have been driving the company car at the time of the speeding offence . The applicant objected to the search and , assisted by counsel , appealed against the search and seizure decision on DATE , DATE on which the warrant had been issued .

On DATE ORG , in a decision addressed to PERSON , dismissed the appeal of DATE . It considered that the appeal against the search warrant was inadmissible as it was devoid of purpose ( prozessual überholt ) , the search having been effected in the meantime . The relevance of the few documents seized could be established without the need for a further procedure . The appeal against the seizure order was ill - founded , as the documents seized were relevant for the assessment of the evidence because they could show whether , as asserted by the appellant , CARDINAL of the company 's employees had committed the traffic offence in question . Moreover , the seizure had not been disproportionate because copies of the originals had been filed and the originals handed back .

On DATE ORG , upon a complaint by the applicant 's representative , re - examined the applicant 's appeal , declaring it inadmissible as far as the search warrant was concerned and unfounded as to the seizure order . In these respects the court repeated its earlier reasoning . ORG added that its earlier decision of CARDINAL DATE had become devoid of purpose and , for the sake of clarity , quashed it .

On DATE the applicant lodged a constitutional complaint with ORG . He submitted in particular that ORG , at the hearing of DATE , had been unable to establish whether the person on the radar photo was GPE He further stated that the documents seized showed that none of the CARDINAL other persons who had been working for the applicant 's company at the relevant time could have been the person shown on the radar photo .

On DATE a panel of CARDINAL judges of ORG refused to admit the complaint . ORG disagreed with ORG finding that the appeal against the search warrant was inadmissible for the sole reason that the search had already been carried out . According to ORG , that finding disregarded the principle of effective legal protection as guaranteed by LAW . In support of its view , ORG referred to its decision of DATE , which had reversed its former case - law on the point . Nonetheless , ORG considered it inappropriate to admit the constitutional complaint . Indeed , when examining the lawfulness of the seizure order , ORG had also , incidentally , addressed the question of the lawfulness of the search order . In any event , the impugned search warrant was obviously lawful . This decision was served on DATE .

On DATE , in the resumed trial proceedings , ORG rendered its judgment against GPE It found him guilty of having negligently exceeded a speed limit , imposed a fine of LAW ( MONEY ) on him in accordance with the uniform scale of fines ( PERSON ) for the various road - traffic regulatory offences , and ordered him to bear the costs of the proceedings .

As regards PERSON 's personal background , ORG noted that PERSON had had his driving licence since DATE , that he drove CARDINAL per year and that there was no record of previous traffic offences .

ORG , having regard to expert technical evidence , found that the radar check had been properly carried out and that the measurements were correct . Moreover , having compared the photographs taken on the occasion of the radar check , in particular the enlargement prepared by the expert , and PERSON 's passport photograph taken in DATE , which had been retained in the administrative files of the ORG municipal authorities , the court reached the conclusion that it was PERSON who had been driving the car . In this respect , the court compared the form of the face , the nose , the position of the eyes and the eyebrows . Furthermore , although PERSON had meanwhile grown a beard , the lower part of the face on the radar photos and of PERSON 's face on the passport photo , showing him without a beard , clearly matched . There were no indications that any other person with the same characteristics had been driving the car at the relevant time .

On DATE ORG dismissed PERSON 's request for leave to appeal .

The search complained of was ordered in the context of proceedings concerning an offence against LAW ( Straßenverkehrsgesetz ) . LAW of FAC ( Straßenverkehrsordnung ) concerns speed limits . Subsection CARDINAL ) , sets a speed limit of QUANTITY in towns . Under Regulation CARDINAL § CARDINAL ( CARDINAL ) , it is a regulatory or petty offence ( PERSON ) to contravene Regulation CARDINAL ; under section CARDINAL of LAW such an offence is punishable by a fine .

The subject of regulatory or petty offences is governed by LAW ( Ordnungswidrigkeitengesetz ) . Such offences are considered to be of minor importance and have , therefore , been removed from the category of criminal offences under NORP law . They are partly governed by special rules other than the rules applicable to criminal offences ( see , in this connection , PERSON GPE , judgment of CARDINAL DATE , Series A no . CARDINAL , pp . CARDINAL et seq . , § § CARDINAL et seq . , and pp . DATE , § DATE ) . Under section CARDINAL ) of LAW , the provisions of the ordinary law governing criminal procedure – in particular LAW are applicable by analogy to the procedure in respect of contraventions of regulations , subject to the exceptions laid down in the said LAW .

Article CARDINAL of the Code of Criminal Procedure ( Straf - prozessordnung ) provides that the home and other LOC ( GPE und andere Räume ) of a person who is not suspected of a criminal offence may be searched only in order to apprehend a person charged with an offence , to investigate the evidence of an offence or to seize specific objects , provided always that there are facts to suggest that such person , evidence or object are to be found on the LOC to be searched . Under LAW , searches may only be ordered by a judge or , in case of urgency ( MONEY Verzug ) , by the public prosecutor 's office and its officials . If a search is carried out in residential or business LOC without the judge or public prosecutor being present , a municipal officer or CARDINAL inhabitants of the municipality in which the search is made shall be requested to attend .


The applicant is a NORP national , a teacher born in DATE and living in LOC . She is represented before the ORG by Mr PERSON , a lawyer practising in GPE , GPE .

The respondent Government are represented by Mr PERSON of ORG , Agent .

At the oral hearing on DATE the parties were represented by :

( a ) the Government

Mr PERSON , Agent ,

Mr PERSON , Counsel ,

PERSON ,

PERSON ,

Mrs M. Wąsek - Wiaderek ,

PERSON , Advisers ;

( b ) the applicant

Mr W. Hermeliński , Counsel

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

The applicant and her brother are co - owners of a house . The applicant lives on the first floor and her brother on the ground floor . In DATE the applicant complained to the local police that her brother had been harassing her and trying to coerce her , by disconnecting the heating system of her apartment , into agreeing to certain alterations in the house .

On DATE the ORG discontinued the criminal proceedings against the applicant ’s brother which had been instituted at the applicant ’s request . On DATE the ORG dismissed the applicant ’s appeal against this decision . Subsequently , the applicant complained to ORG , alleging that there had been serious deficiencies in the investigations .

In DATE policemen from the local station kept coming to the applicant ’s apartment , often as TIME , to question her about the dispute with her brother . On DATE the applicant complained thereof to the ORG .

On DATE the applicant ’s brother submitted a complaint to the local police station that the applicant had cut off the electricity in his apartment . On the same date the police took steps to contact the applicant .

On DATE she came to ORG and requested the Chief Regional Officer to explain the reasons for her being harassed by the Police .

On DATE at TIME CARDINAL policemen and the electricians from the local electricity station , having stated that there was no electricity in the applicant ’s brother apartment , made an unsuccessful attempt to visit the applicant ’s apartment .

In a letter of DATE the ORG informed the ORG of the results of the inquiry into the applicant ’s complaint about the alleged deficiencies in the criminal investigations against her brother , which had been discontinued in DATE . It was stated in this letter that , in order to establish relevant facts , the applicant herself should have been given an opportunity to give evidence in those investigations . The purpose of the investigations had erroneously been limited to establishing whether her brother had forged her signature on certain documents relating to their property , even though there had been ample evidence to support coercion charges against him , in particular as he had cut off the heating system of the applicant ’s apartment . ORG stressed that throughout the investigations the applicant ’s requests that certain evidence be taken had been disregarded without any justification . In conclusion , ORG ordered that the criminal proceedings against the applicant ’s brother be resumed in order to remedy these shortcomings .

On DATE the police instituted investigations concerning the complaint submitted by the applicant ’s brother on DATE and relating to charges of coercion committed by cutting off the electric current in his apartment . On DATE CARDINAL policemen came to the school where the applicant worked and tried to serve on her a summons to the police station for DATE . She refused to accept it and requested that it be sent to her by post .

On DATE a hearing in civil proceedings between the applicant and her brother was held in the ORG . At TIME , as the applicant was leaving the court building , she was arrested by CARDINAL policemen , CARDINAL in plainclothes and CARDINAL in uniform . She was subsequently asked to accompany them to the police car . The applicant refused to comply , whereupon she was warned that coercive measures would be used if she persisted in her refusal . The applicant said that she would not obey and tried to walk away . Upon her arrest she was hit several times , pushed and jostled , and pushed out of the court building . The policemen caught her by both hands and brought her to the police car , parked nearby . The applicant resisted arrest by trying to get away , kicking and crying . After she was brought to the car , she refused to get in . As she was being pushed , crying , by CARDINAL policemen into an unmarked car , the parking assistant helped them to shove her into the car .

At the police station the applicant was informed , at an unspecified time , that she had made it impossible for her brother , who lived in the same building , to use the electric installation . Later on , approximately at TIME a policeman received a prosecutor ’s decision authorising a search of the applicant ’s apartment , limited to an inspection of the electric installation . On the way to the applicant ’s apartment , the policemen granted her request to fetch her father , who was present at the search . Having checked the installation , an electrician from the electricity board declared that CARDINAL fuse in the fuse - box was blown and replaced it , whereupon the installation in the applicant ’s brother ’s apartment started to work normally . The applicant was not allowed to participate in the checking of the installation . The applicant was released at TIME , after which the applicant was released at TIME , she went to the emergency services , where she was given tranquillisers .

On DATE the applicant was given sick leave of DATE .

On DATE doctor ORG issued a medical certificate at the applicant ’s request , stating that she had several painful areas on her head and chest , and that she suffered from general nervous exhaustion .

On DATE the applicant complained to the ORG about her wrongful arrest on DATE and about the manner in which it had been effected . She submitted in particular that the detention had been unlawful as she had never received any summons before the date of her arrest , either by post or by hand . Thus the legal requirements of detention had not been complied with . She contended that the record of her arrest was inaccurate and failed to recount relevant details , such as her complaint that she had felt unwell throughout her detention . She further complained about having been pushed , jostled and intimidated by the policemen . She stated that CARDINAL of them had been particularly aggressive towards her , pushing her violently and hitting her on the head . Her brother , who had been a witness to her arrest , had told her that she would finally be “ dealt with ” . When taken to the police station , she had been refused permission to use the telephone . She had also been refused permission to use the toilet . The policemen had intimidated her , and her complaints that she felt unwell had been ignored . She had briefly been presented with a document containing charges against her , but it had been immediately taken away . She had been told that her brother had lodged a complaint against her and that she had to be questioned to investigate this complaint . She also stated that her request to be given the record of the arrest had not been complied with , at least until the time when she was lodging her complaint with ORG .

The applicant concluded that she had been wrongfully arrested , especially given the nature of the offence concerned . She had not received any summonses by post , in particular none dated DATE .

The following medical documents were submitted to the court as annexes to the applicant ’s complaint : first , the copy of an information card , issued by ORG in ORG on DATE at TIME in which a physician on duty had recommended that the applicant undergo medical treatment on an outpatient basis in the local clinic ; secondly , a copy of the applicant ’s DATE sick leave of CARDINAL DATE ; and a copy of a medical certificate issued by doctor S.S. on DATE .

Further , the applicant supplied the record of her arrest on DATE . She further submitted the search order for her apartment , given by ORG and a copy of her complaint of DATE to the Head of ORG .

On DATE the police charged the applicant with coercion in that she had refused her brother access to the electricity fuses . On DATE the applicant ’s sick leave was prolonged for a further DATE .

On DATE the President of the ORG rejected the applicant ’s complaint , finding that it had been filed with the court outside TIME time - limit .

On DATE the ORG Police station supplemented the charges of DATE with a charge that the applicant had unlawfully resisted arrest on DATE .

On DATE the applicant filed an appeal with the ORG against the decision of CARDINAL October CARDINAL , arguing that in fact the time - limit to complain about a wrongful arrest was DATE and not TIME as held by FAC .

On DATE the applicant complained to the ORG about the manner in which her arrest had been effected . She submitted that the police had acted unlawfully in that her detention had been unjustified ; that she had never received any summons prior to her arrest ; that she had not committed any offence ; and that she had been refused any information as to the grounds for her arrest . She contended that she had been intimidated by the police . She submitted that the police had arrested and harassed her as a “ personal favour ” to her brother , who had many friends among the police . She submitted that her arrest and detention were in breach of ORG and CARDINAL of the LAW and constituted an abuse of power within the meaning of LAW .

On DATE the applicant ’s parents , in a letter to the ORG , stated that the applicant ’s brother had had electricity in his apartment during the material period and had never complained to them that the applicant had been causing him any difficulties in using the electric installations .

On DATE the ORG quashed the decision of CARDINAL October CARDINAL , considering that the applicant had complied with the applicable time - limit of DATE for lodging complaints about wrongful arrest , and referred the case back to ORG .

On DATE the ORG lodged an indictment against the applicant with the Bielsko - Biała District Court . She was charged with coercion in that from DATE she had refused her brother access to the main electricity fuses in her apartment and that this had deprived him of electricity . She was further charged with unlawfully resisting arrest on DATE .

On DATE the ORG dismissed the applicant ’s complaint about her wrongful arrest .

The Government contend that the court considered , inter alia , the following evidence in the case - file : the applicant ’s complaint of DATE to ORG of the Police , CARDINAL letters by the applicant ’s brother dated DATE requesting the prosecutor to institute proceedings against the applicant , CARDINAL reports of the police officers concerning the circumstances of the applicant ’s arrest , the decision of DATE to bring charges against the applicant , and records of testimony given by CARDINAL eye witnesses .

The case - file further contained records of the administrative proceedings undertaken following the applicant ’s complaints filed with ORG . The Government contend that it was established in these proceedings that the policemen involved in the applicant ’s arrest on DATE had acted in conformity with the law and that there had been no abuse of their powers .

In its decision of DATE , the ORG found that the police had twice tried to visit the applicant in her apartment to inspect the electric installations , on CARDINAL and DATE , and that the applicant had refused to let them in . On DATE the applicant had received a summons for DATE by registered post and she had failed to comply with it . The applicant had also refused to receive the summons at her workplace in the presence of her superior , ORG In these circumstances the applicant ’s arrest had been lawful as it was only by arresting her that the policemen could , acting upon ORG orders , question her and inform her of the charges .

On DATE the applicant filed an appeal against the decision of CARDINAL DATE with the ORG . She argued that there was no trace of evidence in the case - file that the police had tried to contact her at her apartment on CARDINAL and DATE . As regards the summons for DATE , it was only at the same date that the post office had informed her that a registered letter was to be served on her , with a time - limit fixed for DATE . She further stated that she had taken this summons from the post office on that date and emphasised that there had not been any previous summonses . As to the summons which the applicant had allegedly refused to accept at her workplace in the presence of GPE , the headmaster , the applicant referred to a written statement of the latter in which she had declared that no attempt had been made to serve the summonses on the applicant at school . She further stressed that the irregularities in the issuing and service of the summonses were clearly attributable to the police . The applicant concluded that arresting in a public place a person who had not jeopardised the conduct of the investigations in any way , who had a permanent address and a permanent job , should therefore be seen as an abuse of power by the police .

On DATE a forensic medical expert stated in a certificate issued upon the applicant ’s request that the injuries suffered by her as shown in the medical documents could have originated from the events of CARDINAL DATE as described by the applicant .

On DATE the President of the ORG rejected the applicant ’s appeal as no appeal lay against the court ’s decision of DATE .

On DATE the ORG upheld the rejection of the applicant ’s appeal against the decision of DATE , finding that the President of ORG had been right in holding that no appeal lay against a dismissal of a complaint against a decision on allegedly unlawful arrest .

On DATE the Bielsko - Biała District Court found that the offence of coercion with which the applicant had been charged , had ceased to constitute a criminal offence under the provisions of the new Criminal Code which had entered into force on DATE , and , accordingly , discontinued the proceedings .

On DATE ORG discontinued the criminal proceedings against the applicant relating to the charges of resisting arrest . The court found that on DATE CARDINAL policemen , ORG and GPE , came to the ORG to arrest the applicant . On CARDINAL a.m. approximately they had done so . They had given her their names , grades and ordered her to follow them to the police car . The applicant had said that she was under no obligation to obey their orders and had begun to walk away . Thereupon the policemen had caught her by arms and had led to the police car . The applicant had been crying , trying to get away and kicking . She had also refused to get into the car . Then ORG had got into the car and , holding her by her arm , pulled her inside . A parking attendant S.S. had helped him by forcing the applicant ’s head down . Subsequently the applicant had been taken by car to the police station .

The court relied on evidence given by CARDINAL of the policemen , ORG , by the applicant ’s brother and by CARDINAL other witnesses , FAC and GPE

The court further observed that the applicant had denied all charges . She had stated that on the material date she had been approached by CARDINAL men who assaulted her and forced her to go to the parking beside the court building . There she had been hit on the head several times and pushed into the car .

The court had regard to the applicant ’s submissions , but found that they were contradicted by the submissions of other witnesses . Witness PERSON , a policeman , had submitted that he had arrested the applicant together with PERSON , having given his name and grade to the applicant , and having ordered her to follow their orders . Since she had refused to comply , they had got hold of her and had taken her to the car . She had been kicking and trying to get away . The court noted that his submissions were corroborated by the testimony of the applicant ’s brother who had also been present at the scene , and by those of FAC , the parking assistant , who had stated that he had helped the policemen to put the applicant into the car by pushing her head down . The latter witness had also confirmed that the applicant had been kicking and trying to get away . Also , witness ORG had confirmed that the applicant had not wanted to get into the car and kept resisting .

The court considered as credible the testimony of all the witnesses who had given a concordant recount of the material events . The testimony of ORG had been corroborated by the evidence given by other impartial witnesses who had accidentally been present at the scene . The court further considered that the applicant ’s conduct amounted to an offence with which she had been charged . However , the court decided to discontinue the proceedings , finding that the seriousness of the offence was infinitesimal . In taking this decision the court took into consideration the circumstances in which the offence had been committed , and in particular the context , i.e. the fact that the applicant had been involved in a conflict with her brother , which manifested itself in numerous civil and criminal proceedings to which they were parties . The court observed that the applicant had been acting under an intense emotional stress and her motives could not be considered as contemptible .

Acts of ill - treatment causing physical harm amount to criminal offences prosecuted under the relevant provisions of LAW on various forms of assault . In instances concerning ill - treatment amounting to moral harm , in particular an attack on the privacy or dignity of the person concerned , a victim may use CARDINAL remedies . Firstly , in cases concerning acts committed by police officers the victim can , under LAW of LAW of DATE , request the prosecutor to institute criminal proceedings against police officers involved in any incident which allegedly infringed his or her privacy or other personal rights , such as dignity or physical inviolability .

Pursuant to LAW officio in any case in which suspicion arose that a criminal offence had been committed .

Article CARDINAL § CARDINAL of the Civil Code provides that the ORG shall be liable for damage caused by a ORG agent in the exercise of his or her duties .

According to the case - law of ORG , a plaintiff seeking damages under LAW of LAW must show that the act in question is unlawful and that the ORG agent committed a fault ( ORG judgments : No . I PR CARDINAL/CARDINAL of CARDINAL , unpublished , No . I CR CARDINAL/CARDINAL of DATE , unpublished and No . I CR CARDINAL/CARDINAL of CARDINAL , unpublished ) .

Under LAW of LAW Code of Criminal Procedure , as applicable at the relevant time , the police could arrest a person if there were reasonable grounds for suspicion that he or she had committed an offence and if there was a risk of absconding or collusion .

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

According to LAW , a request for compensation for manifestly unjustified detention on remand had to be lodged within DATE from the date on which the final decision terminating the criminal proceedings in question had become final . Therefore , in practice , a request for compensation for unjustified detention under LAW could not be lodged until the criminal proceedings against the person concerned were terminated ( see also the decision of ORG no . WRN CARDINAL , CARDINAL , published in ORG . iinter alia , the decision of ORG no . PERSON CARDINAL/CARDINAL , CARDINAL , published in ORG CARDINAL/CARDINAL - CARDINAL/CARDINAL ) .

LAW of LAW of DATE provides for a request for compensation for , inter alia , unjustified detention . Current Article CARDINAL § CARDINAL of the Code is the equivalent of Article CARDINAL § CARDINAL of the Code of DATE .

The modalities for permissible use of direct coercive measures by the police are laid down by LAW , which provides that in situations in which a police order is not obeyed , such measures can be resorted to only insofar as they correspond to the requirements of a particular situation and insofar as they are necessary to obtain compliance with that order .

The Ordinance of DATE on the Use of Coercive Measures by the ORG provides in its LAW that direct physical force can be used to overpower a person , to counter an attack and to ensure compliance with an order . When such force is being used , it is forbidden to strike the person against which the action is being carried out , unless in self - defence or to counter an attack against another person ’s life , health or property .


Preliminary objections joinded to merits and dismissed (non-exhaustion of domestic remedies, six-month period);Preliminary objection  dismissed (six-month period);Violation of Art. 3;Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall

The applicant was born in DATE and lives in GPE .

On DATE PERSON , a powerful businessman , lodged a criminal complaint against the applicant , who , DATE and DATE , had asked for MONEY ( ORG ) for his sick wife , and instead had used the money to buy a ORG and a ORG car . The applicant claimed that he was working for ORG ( PERSON şi Pază ) , a state body with attributions in the field of national security , but later on the investigation showed that on DATE he had been released from duty .

Similar complaints of fraud were made by other alleged victims of the applicant .

The applicant was arrested on DATE and brought to ORG . DATE the prosecutor ordered his pre - trial detention in the same police facility .

In a statement made on DATE the applicant informed the prosecutor that he had psychiatric problems that made him unfit for detention and therefore asked to undergo psychiatric tests ( see paragraph CARDINAL below ) .

On DATE ORG rejected a request by the prosecutor for an extension of the applicant ’s detention . On DATE the applicant was released from custody .

On DATE the prosecutor ordered the applicant to be remanded in custody . On DATE he was arrested again and placed in police detention .

On DATE the ORG quashed ORG decision of DATE and extended the applicant ’s pre - trial detention .

He was released again on DATE .

NORP The parties’ submissions concerning the conditions of detention differ significantly .

According to the applicant , during DATE of his detention he was beaten by masked police officers and by inmates , on the orders of the investigators .

He was woken up in TIME and interrogated , under threat of death . He was forced to bend over with his hands handcuffed behind his knees . The investigators would then hang him with his head downwards from a truncheon passed between his hands and legs . He was beaten on his feet with his shoes on until he lost consciousness .

He was subject to the same treatment DATE .

He used to be taken to the first - floor offices and beaten over the back and head with QUANTITY - long metal - reinforced wooden truncheons , while the investigators verbally abused him .

On an unspecified date an inmate called “ PERSON ” raped the applicant , with the help of other inmates and encouraged by the investigator . He also broke the applicant ’s teeth with his fist when the applicant refused to open his mouth .

His inmates urinated on his food and forced him to eat it .

The applicant told his wife about the ill - treatment and she informed his lawyer , who managed to have the applicant moved to a different cell but the applicant was again subjected to ill - treatment by his new inmates . He was forced to squat and do push - ups all night long under the supervision of an inmate . If he refused to obey , DATE he would be beaten . He was not allowed to use the toilets but was beaten when he urinated in the cell .

According to the applicant , the treatment inflicted by the investigators was far worse than that he suffered at the hands of his inmates . Once he was punched in his liver by the police until he almost lost consciousness .

The Government denied that any ill - treatment had been inflicted on the applicant .

They presented a detailed report of the applicant ’s detention and medical treatment , based on the prison records and medical files . According to that report , from DATE to CARDINAL DATE the applicant had shared a dormitory with CARDINAL other detainees , including ORG

From DATE he was kept in ORG . On DATE the psychiatric doctors from ORG examined the applicant and diagnosed him with a personality disorder . He was prescribed antidepressants . The diagnosis was confirmed by ORG DATE , on the prosecutor ’s request .

From DATE to DATE he was held in ORG again and placed in a dormitory with CARDINAL other inmates : GPE , GPE , GPE , GPE , ORG , ORG , ORG , ORG , ORG and R.S.M.

On DATE he was sent to ORG where he remained until DATE . He was diagnosed with depression , anxiety and hemiplegia of the left side of his body .

From DATE to DATE he was held in the police facilities again and shared a cell with CARDINAL other inmates . He spent the rest of his pre - trial detention in ORG , where he was treated for depression and a personality disorder .

No detainee named “ PERSON ” was identified by the prison authorities .

No complaints by the applicant concerning the conditions of detention were registered with the authorities during his detention .

On DATE the applicant ’s wife lodged a criminal complaint with ORG attached to ORG , claiming that her husband was being subjected to illtreatment in detention . She claimed that she had noticed marks of violence on her husband ’s face on DATE when she had visited him in the prison hospital . He had told her that he had been beaten .

On DATE the applicant gave testimony before the prosecutor . The relevant parts of his statement are as follows :

“ I was arrested ... and put in a cell with CARDINAL other detainees for the first DATE . During that time the prisoner responsible for maintaining order in the cell , a certain “ PERSON ” , tried to sexually abuse me . During the same period I was taken for questioning and kicked in my stomach and face ; I received blows to my cheeks and was kneed ... by CARDINAL persons wearing civilian clothes and masks ... This treatment is still going on ...

I should also mention that in ... DATE I was treated for spasmophilia ; in DATE I suffered from depression and received treatment for it ... and I was treated for anxiety . ”

On DATE the prosecutor took depositions from GPE and GPE , CARDINAL inmates who stated that they had shared a cell with the applicant , the first from DATE to DATE and the second from DATE to an unspecified date . They both stated that the applicant had not complained of ill - treatment by investigators and had not been subjected to any violence in the cell .

On DATE ORG , which had examined the applicant upon the prosecutor ’s request , rendered its report , describing the applicant ’s condition as follows :

“ CARDINAL ) pale yellow ecchymoses of QUANTITY on the right arm , at CARDINAL distance from the palm , with receding contour , hard upon palpation ( old haematoma , ... ) ;

CARDINAL ) pale yellow zone with hyper - pigmented centre , uneven contour , ... isolated on the left arm , at CARDINAL distance on the front side ( plaque of QUANTITY ) ;

CARDINAL ) NORP semicircular ecchymose of QUANTITY on the right inguinal zone ( with pale yellow centre ) , bluish with greeny yellow margins and visible contour ;

CARDINAL ) NORP complains of pain in the right hypochondrium .

Palpation : liver , QUANTITY under the rib cage , very sensitive . Specialist examination recommended ( ultrasound scan ) .

Conclusion : “ PERSON presents injuries caused by hitting with hard objects which could have taken place DATE before the medical examination . He would have needed CARDINAL to CARDINAL days’ medical treatment for his injuries . ”

On DATE the military prosecutor took the following decision :

Not to open a criminal prosecution ... as the injuries were caused by [ the applicant ’s ] actions ” ...

To communicate the decision to the person concerned . ”

On DATE the military prosecutor sent the following letter to the applicant ’s wife :

“ The investigation showed that the facts complained about had taken place because of the conflicts between [ the applicant ] and his inmates , caused by [ the applicant ’s ] mental illness . They had not been caused by the wardens . ”

Neither the applicant nor his wife received a decision by the prosecutor .

On DATE , on the applicant ’s request , ORG informed the applicant that on DATE the prosecutor had decided not to prosecute , as the facts complained about were not prohibited by the criminal law .

On DATE the applicant gave the GPE Police documents required for the investigation into the allegations against him .

On DATE his deposition was taken by the police in connection with the facts under examination . DATE the police decided to open a criminal investigation in respect of the applicant .

On DATE ORG attached to ORG opened criminal proceedings against the applicant on various charges of forgery and abuse of official position .

The applicant ’s testimony was heard again either by the police or by the prosecutor on CARDINAL , DATE and DATE , DATE , DATE , DATE and DATE .

DATE several witnesses and alleged victims gave testimony in the case .

The applicant ’s wife ’s deposition was heard by the investigators on DATE , CARDINAL and DATE , DATE and DATE .

On DATE , DATE and DATE searches were conducted at the applicant ’s home . A ORG and a ORG car found in his garage were confiscated and valued by an expert at ORG CARDINAL,CARDINAL . On DATE , with the applicant ’s wife ’s agreement , the CARDINAL cars were given to PERSON in compensation for the damage he had sustained .

On DATE the prosecutor opened a separate file for the offences allegedly committed DATE and DATE and referred the case to ORG , as the applicant had been a military officer during that time .

On DATE the same prosecutor indicted the applicant for an act of fraud allegedly committed on DATE . On DATE the applicant was convicted by ORG . This application to the ORG does not concern the proceedings referred to in this paragraph .

Several witnesses gave testimony before the military prosecutor . On DATE ORG decided not to prosecute the applicant for the offences committed before DATE and referred the case back to ORG attached to ORG in respect of the offences allegedly committed DATE and DATE . It also noted that the applicant had tried to abscond during the investigation . On his request , the applicant was informed of this decision on DATE but did not receive a copy of it .

The prosecutor attached to ORG opened the investigation but could not hear the applicant ’s testimony before DATE , as the latter had allegedly absconded .

On DATE the prosecutor at ORG also decided not to prosecute the applicant and made reference to the military prosecutor ’s decision of DATE concerning the same facts . However , on DATE ORG attached to ORG annulled the decision and ordered the reopening of criminal proceedings against the applicant .

The case was referred back to the prosecutor attached to ORG on DATE and from there to the police for further investigation on DATE .

On DATE the applicant gave testimony .

On DATE the police returned the file to the prosecutor attached to ORG with a proposal to indict the applicant . However , on DATE the prosecutor closed the investigation as the case had become time - barred .

DATE . On DATE ORG attached to ORG informed the applicant of its decision .

The applicant asked ORG to release a copy of the transcripts made during the hearing of DATE . This information was requested by the ORG .

In a letter of CARDINAL DATE the president of ORG informed the applicant that it was impossible to obtain the document as the file was situated in the old archives which were being reorganised .

In DATE ORG requested ORG attached to ORG and ORG to start a criminal investigation in respect of the applicant for having allegedly blackmailed senior civil servants and businessmen DATE , pretending to be an employee of ORG .

On DATE the High Court Prosecutor ’s Office relinquished competence in favour of ORG . On DATE the latter searched the applicant ’s home and confiscated several documents , including the following :

- a letter of CARDINAL DATE from the ORG concerning the present application ;

- the medical expert report of DATE ;

- the criminal complaint of DATE ;

- the military prosecutor ’s letter of DATE ;

- copies of a letter addressed by the applicant to the ORG and of a letter addressed to ORG .

All these documents were returned to the applicant on CARDINAL and CARDINAL DATE .

The applicant claimed that the investigators and the secret services had tried to intimidate him in order to make him withdraw his application to the ORG .

NORP The criminal proceedings against the applicant are still pending before ORG .

On an unspecified date the applicant lodged an action for compensation for illegal detention under LAW and QUANTITY of LAW . He considered that the prosecutor ’s decision to terminate the proceedings on the ground that they were time - barred had infringed his right of access to a court and had caused him additional damage in so far as it had not ordered the restitution of the CARDINAL confiscated cars .

In a decision of DATE ORG dismissed the action on the grounds that the applicant ’s detention did not fall within any of the categories provided for in LAW and that he had not proved ownership of the CARDINAL cars .

The relevant provisions of LAW and of the provisions governing the police and military prosecutor are set out in PERSON GPE ( ( no . CARDINAL ) , no . CARDINAL , § § CARDINAL , CARDINAL DATE ) and PERSON v. GPE ( no . GPE , § CARDINAL , CARDINAL DATE ) .

The relevant provisions of ORG concerning the means of obtaining compensation for alleged ill - treatment are set out in PERSON and Others v. GPE ( ( dec . ) , no . CARDINAL , DATE ) .

In the same decision , as well as in paragraphs CARDINAL of the judgment in PERSON ( no . CARDINAL ) , cited above , there is a description of the development of the law concerning complaints about the prosecutor ’s decisions ( LAW CARDINAL introduced by Law no . CARDINAL/CARDINAL DATE applicable from DATE ) .

For the legislation on complaints against prison staff , see paragraphs CARDINAL of the judgment PERSON GPE , ( no . CARDINAL , DATE ) .


The applicant , Mr PERSON , a NORP national , was born in DATE and when introducing the application lived in GPE .

In an article published in a NORP DATE review on DATE a well - known historian , Professor PERSON ( thereafter “ W. ” ) made inter alia the following statements :

“ ( ... ) PERSON wanted the murder of the NORP . He ordered it and certainly knew about it . Although he had not given a written order , there is evidence that he had given oral orders on several occasions . The murder of the NORP was wanted and organised from above and by ORG - activists from the bottom ( ... ) . ”

In a letter of DATE the applicant wrote to Professor PERSON in reply to this article :

“ ( ... ) Your statements which are false and historically unsustainable shall not stand unanswered ( ... ) .

It is actually established that there is no indication in party programs of ORG , the ORG ( ORG ) , that the ORG and PERSON intended to murder the NORP . Anybody who – with all the means at his disposal – fostered the emigration of the NORP minority until late after the beginning of the Second World War can hardly be said to have prepared the murder of the NORP . A long time ago , the historian PERSON has publicly proposed to pay QUANTITY to any person who could prove that PERSON had ordered , for racial reasons , the murder of CARDINAL single NORP . So far , nobody has produced evidence . After the war , CARDINAL of totally immaculate officials of the ORG have attested on oath not to have known until DATE war about the murder of NORP . None of the dignitaries of ORG accused in GPE admitted to have known about the mass murder of NORP . Not even in their closing words under the gallows ! ( ... )

The normalisation of the relation between NORP and NORP depends on the will to historical truth and requires not only that one party is blamed for the responsibility it admits but also that the other party refrains from suppressing its negative contribution to history ( ... ) . Last but not least , the normalisation requires the Jews’ clear distancing from the war and post - war atrocity propaganda ( Kriegs- und ORG ) against GPE , directly or indirectly concerning the NORP .

You , Professor PERSON , would highly contribute to this if you would abandon the false or questionable statements against GPE and seriously endeavour to become acquainted with the actual academic discourse of contemporary history . ”

On DATE PERSON submitted this letter to the police . On DATE he explicitly refused to lodge an application for prosecution ( Strafantrag - see “ Relevant domestic law and practice ” below ) .

On DATE a police officer informed DATE whose grandparents had died in a concentration camp – about the letter and its content . On DATE , the latter lodged an application for prosecution .

On DATE ORG ( ORG ) convicted the applicant of disparaging the dignity of the deceased pursuant to LAW of LAW ( see “ Relevant domestic law and practice ” below ) and sentenced him to CARDINAL months’ imprisonment . With reference to the case - law of ORG ( Bundesverfassungsgericht ) , it recalled that it was historically proven that the mass killing of NORP in concentration camps was planned and organised by PERSON and the ORG . Accordingly , no evidence in this respect had to be adduced , as requested by the applicant . Although the applicant had not denied the Holocaust as such , his denial of PERSON ’s and the ORG ’s responsibility in this respect was tantamount to a negative value judgment ( negatives PERSON ) . He had thereby denied the GPE extremely cruel and unique fate and accordingly disparaged the dignity of the deceased . Furthermore , as the pertinent passages of the applicant ’s letter did not express an opinion but had to be categorised as allegations of facts which had been proven untrue , they did not fall within the ambit of LAW of LAW which protects the freedom of opinion . Given their polemic nature , they neither fell within the ambit of LAW of LAW Basic PERSON which protects the freedom of research . In fixing the sentence , the court took into account that the applicant had been convicted in DATE respectively of disparaging the dignity of the deceased for denying the existence of gas chambers and that the letter at issue had been written during DATE .

On DATE the NORP - Fürth Regional Court ( ORG ) dismissed the appeals lodged by the applicant and ORG . According to ORG , it was not contested that the applicant had written and sent the letter to PERSON It further noted that a valid request for prosecution had been filed with the public prosecutor . Although PERSON had not lodged himself a request for prosecution , the circumstance that he had transferred the applicant ’s letter to the police showed that he had not considered its contents as unoffending .

ORG considered that the extermination of the NORP in gas chambers is a clearly established historical fact . It is also common knowledge that PERSON had wanted and initiated the murder of the NORP in GPE and that the ORG had planned and organised the systematic extermination of NORP people . It was therefore not necessary to adduce the requested evidence . The applicant ’s allegations that none of the accused dignitaries of ORG in the GPE Trials had known of the extermination of the NORP , was absurd and monstrous and offended the NORP murdered by the NORP . The applicant ’s statement that the opinion expressed by PERSON was part of the war propaganda and after - war atrocity propaganda combined with the denial of PERSON ’s and the national Socialists’ responsibility in the extermination of the NORP showed the applicant ’s disdain towards the NORP , the principal victims of the systematic extermination . The court concluded that statements concerning facts which had been proven untrue were not protected by LAW .

On DATE ORG ( ORG ) dismissed the applicant ’s appeal on points of law as not disclosing any legal errors to the detriment of the applicant .

On DATE ORG ( Bundesverfassungsgericht ) , sitting as a bench of CARDINAL judges , refused to admit the applicant ’s constitutional complaint .

The applicant was represented by defence counsel throughout the proceedings .

Section CARDINAL of the Criminal Code provides as follows :

“ Anybody disparaging the dignity of the deceased shall be punishable with imprisonment not exceeding DATE or with a fine . ”

Section CARDINAL of the Criminal Code determines that , with few exceptions , such an offence can only be prosecuted upon application by a relative of the victim of the offence .

In DATE ORG established that the denial of the existence of gas chambers was an allegation of facts which had been proven untrue and that this allegation can be prohibited on account of their offending nature . In DATE ORG confirmed that the denial of the existence of gas chambers was punishable under LAW of LAW .


The applicant is a NORP national , born in DATE and living in GPE . He is represented before the ORG by Mr PERSON and PERSON PERSON , CARDINAL lawyers practising in GPE .

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

On DATE , the applicant took part in ORG of GPE . He was a candidate of the GPE labour party .

In his electoral district , the quota for election was CARDINAL votes . The applicant obtained CARDINAL first preference votes , and was therefore not elected . After the fifteenth count of votes , the applicant had CARDINAL votes . At the sixteenth count of votes , ORG declared elected another candidate , PERSON , with a count of CARDINAL votes .

On an unspecified date , the applicant instituted proceedings before FAC . He alleged that according to the relevant provisions of LAW of DATE , he should have been declared “ eliminated ” at the sixteenth count of votes . Under NORP law , the consequence of the “ elimination ” of a candidate is that another candidate could benefit from the preferences given to him , and that the votes of that candidate should in a subsequent Causal Election be re - transferred to the first candidate . The applicant observed that had his elimination taken place , he would have benefited from the votes of PERSON He therefore requested ORG to order the correction of the electoral results with all consequences .

In a decision of CARDINAL DATE , ORG rejected the applicant ’s claim . It held that it had jurisdiction to consider the merits of the case , which concerned a matter of interpretation of the electoral law . However , it observed that according to LAW , when CARDINAL candidates remain after the elimination of the others , no transfer of votes should occur and the candidate having more votes is elected , without a quota . As this provision should be applied notwithstanding any other provision of the same LAW , ORG concluded that ORG had correctly applied the law and given a proper interpretation of LAW .

The applicant lodged an appeal before ORG . He alleged , in particular , that LAW was not applicable in his case , which did not concern the election of a candidate , but the procedure before the declaration that a candidate was elected .

ORG lodged an incidental appeal , requesting ORG to declare that the applicant had failed to comply with the procedure prescribed by law to contest the results of the election .

In a judgment of CARDINAL DATE , ORG accepted ORG incidental appeal . It observed that according to LAW , “ if any question shall arise in relation to any transfer of votes , the decision of the [ Electoral ] Commission ... shall be final unless an objection is made in writing by any candidate or agent before the declaration of the poll ... ” . ORG had held that this provision was not applicable , as it referred to a transfer of votes that had been made , while the applicant was complaining about a transfer which had not been made . However , ORG could not subscribe to this opinion , as LAW regulated any question about transfer of votes and made no distinction between votes which had already been transferred and votes which had not been transferred . LAW was thus applicable to the present case . As it was not disputed that the applicant failed to contest in writing the decision and performance of ORG , it was clear that he had side - stepped an essential and statutory - established procedure , with the consequence that ORG could not take the matter into consideration .

In the meanwhile , the applicant had submitted his candidature to the so - called ORG . This expression indicates the elections to ORG consequent to the vacancy of electoral seats by candidates which , having been elected in CARDINAL electoral districts , should retain CARDINAL seat and vacate the other .

ORG took place on DATE . The applicant was not elected .

He subsequently filed an electoral petition before ORG , challenging once again the procedure followed by ORG . He reiterated the objections concerning ORG raised before ORG and alleged that contrary to the relevant internal provisions , ORG failed to take into account , at the beginning of the counting , the votes he had obtained during ORG DATE . The applicant moreover stressed that he had been discriminated vis - à - vis the candidates who , having been eliminated in ORG , had re - acquired the first preferences they had passed on to the elected candidate PERSON

In a judgment of DATE , ORG dismissed the applicant ’s plea . Interpreting the relevant national regulations , it concluded that the first count of votes in ORG was a process completely independent from ORG . As concerned the discrimination alleged by the applicant , ORG observed that the difference in treatment was justified by the fact that the candidates who were eliminated in ORG , and therefore could re - acquire the preferences they had passed over to PERSON , had contributed to the election of the latter , who subsequently vacated his post . As the applicant had not been eliminated in ORG , he had not contributed to the election of PERSON


The CARDINAL applicants are NORP nationals , born in DATE and DATE respectively . The first applicant is a technical salesman and lives in GPE . The second applicant is an electromechanical engineer . He is the husband of the third applicant , who is a sales representative . They live in FAC ( Val - de - Marne ) .

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

The applicants were hired in DATE , DATE and DATE respectively by a company called Mole Richardson GPE whose object was the manufacture , sale and hire of lighting and cinematographic equipment . The collective agreement applicable to the CARDINAL applicants was the CARDINAL for the metalworking industry .

In DATE FAC GPE transferred its manufacturing department and part of its sales department to a company called ORG . The employment contracts of the staff employed in connection with the activities which had not been transferred , including the applicants’ contracts , were transferred to ORG

In DATE ORG transferred its ORG branch to a company called ORG , which was not subject to any collective agreement . The following year ORG closed down its ORG establishment .

On DATE the second applicant was made redundant . On DATE the company obtained administrative authorisation to serve a redundancy notice on the other CARDINAL applicants , who , in their capacity as staff representatives , were protected employees . On DATE the company made them redundant on the ground that the establishment employing them had been closed down .

On DATE the applicants lodged an application with the ORG for an order requiring their former employer to pay them all the sums due under their contract , pursuant to the provisions of the collective agreement for the metalworking industry .

On DATE ORG dismissed the ORG claims in their entirety and awarded costs against them . The tribunal found , inter alia , that while ORG had taken over PERSON assets and the employment contracts had been transferred to the new employer , the latter was not subject to the application of any collective agreement , “ the transfer of a contract under ... Employment Code [ not entailing ] the preservation of all previously obtaining advantages ” .

The applicants appealed to ORG . They submitted in their grounds of appeal that ORG was obliged to apply the collective agreement for the metalworking industry because , in accordance with the provisions of an Act of DATE , that agreement continued to be effective for DATE following the transfer . They also submitted that their redundancies had breached ORG DATE relating to the information to be given to employees in the event of transfers of undertakings ( Directive no . CARDINAL/CARDINAL , ORG of DATE ) . The applicants complained , in particular , that , in breach of the directive , it was only their salary slips that had officially informed them , at DATE , of the transfer of FAC to ORG .

On DATE ORG upheld ORG decision that there had been genuine and substantial grounds for making the applicants redundant . It went on to hold that the applicants could not rely on the application of the collective agreement for the metalworking industry at the time of their redundancy because the transfer to ORG of FAC activity and equipment had taken place on DATE , that is , before they had been made redundant . Accordingly , ORG concluded that the applicants could not rely on the collective agreement for the calculation of their redundancy pay because their right to compensation had arisen when the agreement had ceased to be effective . Consequently , it dismissed the ORG claims and awarded costs against them . ORG did not deal with the ground of appeal relating to a breach of the NORP directive .

The applicants lodged an appeal on points of law with ORG . In their grounds of appeal they complained , inter alia , that ORG judgment had not dealt with “ important points of law based on NORP obligations with regard to the ORG ” . They submitted that , accordingly , ORG had failed to comply with its obligations under LAW .

In its defence pleadings , ORG , replying to the arguments put forward by the applicants – and after noting that “ the appellant complains that the decision did not deal with his objection based on a breach of ORG DATE ” – submitted :

“ ... apart from the fact that it is not clear in which pleadings this point was raised , it should be reiterated that the judges of fact have a duty to deal only with genuine grounds , defined as the statement of a fact on the basis of which , using legal reasoning , the party intends to demonstrate the merits of a claim or defence . Even supposing that the employee did raise the point , he did not draw any legal inference from the alleged breach of the directive . It was therefore a mere argument which the judges of fact did not have to deal with ” .

In a judgment of DATE ORG dismissed the applicants’ appeals . In particular , the ground of appeal based on a breach of the NORP directive was declared inadmissible on the ground “ that it does not appear either from the impugned decision or the pleadings that [ the applicants ] relied , before the judges of fact , on a breach of ORG DATE on the information to be given to employees in the event of transfers of undertakings ; it is therefore a new ground of appeal and CARDINAL of mixed fact and law ... ” .

New Code of Civil Procedure

Article CARDINAL

“ ... new grounds of appeal shall not be admissible before ORG . Subject to any contrary provision , the following may , however , be raised for the first time :

Points of pure law ;

Grounds of appeal arising out of the decision being challenged . ”

That provision enshrines traditional case - law according to which ORG was instituted only to assess , from a legal perspective , judgments delivered at last instance . It is thus impossible to raise before ORG new grounds which have not been dealt with before the judges of fact . According to the established case - law of ORG , a ground which has not been raised before the judges of fact and is of mixed fact and law is a new ground ( see , to that effect , PERSON . App . CARDINAL DATE , JPC CARDINAL PERSON ; ORG , ORG , CARDINAL DATE , JPC CARDINAL IV CARDINAL ; GPE . CARDINALnd GPE . , CARDINAL DATE , GP CARDINAL summ . CARDINAL ) .

Article CARDINAL

“ ... Appeal submissions shall formulate expressly the parties’ claims and the grounds on which each of those claims is based . ”

Article CARDINAL

“ The judgment shall set out succinctly the respective claims of the parties and the grounds on which they rely ; it shall give reasons . The decision shall be set out in the operative provisions of the judgment . ”

Case - law has interpreted those provisions to mean , inter alia , “ that the requirements of that Article are satisfied where the judgment has stated and dealt with the factual circumstances , and the legal inferences drawn from them , on which the decision is based ” ( see ORG . CARDINAL DATE , ORG . civ . PERSON , p. CARDINAL , and ORG , CARDINAL DATE , ibid . II , p. CARDINAL ) .