No violation of Article 10 - Freedom of expression -{General}

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

NORP The applicant company , ORG , is the owner and publisher of the DATE newspaper ORG .

In DATE GPE and GPE , the parents of PERSON , dissolved their common household and concluded a provisional agreement on the custody of NORP under which sole custody was granted to GPE , while his brother stayed with PERSON On DATE PERSON asked for custody to be withdrawn from GPE and transferred to him .

On DATE GPE and GPE agreed that pending the outcome of an expert report custody be provisionally transferred to PERSON ( vorläufige Obsorge ) and that for the time being NORP should live with PERSON , his father .

It appears that subsequently PERSON hindered contact between NORP and GPE and , in DATE , moved to GPE . Thereupon , by an interlocutory decision ( einstweilige GPE ) of DATE , custody of NORP was transferred back to GPE

PERSON was ordered to hand NORP over to GPE immediately or to take him back to GPE before DATE . That order was confirmed on appeal on DATE and became final .

Thereupon GPE travelled to GPE to have that decision enforced . PERSON proposed to GPE that they enter into an agreement on custody of NORP , and GPE also agreed to staying in GPE . However , no such agreement was finally reached . After GPE had settled in GPE and found employment there , PERSON , together with NORP , left GPE for GPE .

On DATE , pending the outcome of the custody proceedings , custody was temporarily transferred to ORG . On DATE the court dismissed PERSON ’s request for custody to be withdrawn from GPE and transferred to him . The decision was declared immediately enforceable .

Subsequently , various attempts to enforce that decision were undertaken . The NORP newspapers reported on these events because PERSON kept them regularly informed and sought publicity .

The first attempt at enforcement , on DATE , failed because GPE and NORP went into hiding . PERSON had informed the media of this step in advance . Some time later they returned . In order to enforce the custody decision the competent court scheduled a hearing for DATE in the course of which NORP was to be handed over to GPE PERSON failed to appear at the hearing .

Thereupon the judge ordered that NORP be brought before the court by force ( zwangsweise GPE ) .

When that decision had to be enforced by court officers NORP barricaded himself in his elementary school and , since the police officers who intervened decided not to use physical force on the LOC of the school , this attempt also failed . These events were also widely covered by the media because PERSON had informed them in advance .

After further unsuccessful attempts the rural police ( ORG ) were informed on DATE that NORP was at his father ’s house . Court officers sent to the house noted , however , that NORP was not in the house but , together with a babysitter , in a car in front of it . The officers tried to take hold of NORP but he cried and resisted . These scenes were again the subject of widespread media coverage because they were observed and photographed by several journalists , who had been informed and had hurried to the spot .

In order to establish whether NORP had suffered injuries during the attempt to enforce the court order , PERSON took him to the GPE hospital . On DATE , by means of a diversion manoeuvre , GPE and NORP were separated and on DATE NORP was handed over to his mother , GPE , on the premises of the hospital . GPE and NORP have been living in GPE since that time . This final phase of the events was also widely reported on in the media .

On DATE PERSON , represented by his mother , brought proceedings under LAW and CARDINAL of LAW against the applicant company , seeking damages and publication of the ensuing judgment , claiming that a series of articles on the above - mentioned events published by the applicant company DATE and DATE and which contained a detailed description of the events , giving his full name and illustrated by pictures of him , had breached his rights under those provisions .

He argued that the reporting on him had interfered with his strictly private life in a manner likely to expose and compromise him in public . Moreover , the articles constituted a breach of section ORG of LAW , which prohibited reporting on the victim of a crime in a manner which made him or her recognisable in public ; that was only allowed if the importance of the offence or the persons implicated meant that there was a preponderant public interest in the information . Both applications were lodged with ORG .

On DATE ORG gave a detailed judgment in the case , which referred to the following articles published in the applicant company ’s newspaper and summed up by ORG as follows :

“ ( CARDINAL ) DATE

The heading ‘ Missing father returns home with his CARDINAL boys’ , with a picture of NORP . According to the report , the child ’s father returned DATE with NORP and his brother and had to go to the police because the boy was being forced against his wishes to move in with his mother following an inhuman court decision in the context of a divorce battle .

( CARDINAL ) DATE

The heading ‘ Family drama : NORP needs peace at DATE , accompanied by a picture of the child . The report describes a failed attempt to take the boy to GPE and quotes the head teacher of his primary school as saying that NORP suffers from anxiety . A large number of people , some of whom have signed a petition , are reported to be campaigning for NORP to remain with his father .

( CARDINAL ) DATE

( a ) On the front page , the heading ‘ My best friend is my dog’ . Underneath is a picture of NORP with his dog and text stating that the child does not wish to go to his mother .

( b ) The heading ‘ What ’s going on here is ORG , with CARDINAL photographs of NORP . According to this article , CARDINAL police officers entered the primary school in order to fetch the boy , who refused to go with them . The head teacher , some parents and classmates are reported as saying that what happened was inhuman .

( CARDINAL ) DATE

The heading ‘ Mad scramble for CARDINAL - old’ , with a picture of NORP . The report states that several different people want the child , but no one has asked his opinion , resulting in an inhuman tug - of - war which is already affecting the child psychologically . The article further reports that a bailiff went to the child ’s father ’s flat but found no one at home .

( CARDINAL ) DATE

( a ) On the front page , the heading ‘ NORP ’s battle for his home’ , with a picture of the plaintiff showing him grimacing as he resists being taken ( into the police car ) by the bailiff , while his brother tries to obstruct the bailiff .

( b ) The heading ‘ You have no idea what you ’re doing to the ORG , with CARDINAL more pictures . The article describes the child being taken from the babysitter ’s car to the police car . It likens the scene to something from a distant dictatorship , with CARDINAL bailiffs trying to tear the young plaintiff away from his familiar surroundings by brute force , against his will and despite his cries for help . Neighbours and friends of the family are reported as crying with rage and directing abuse at the court officials . The plaintiff reportedly sustained a serious injury to his spine at the hands of the bailiffs and had to be taken to hospital .

( CARDINAL ) DATE

( a ) On the front page , the heading ‘ The whole of GPE up in arms’ , accompanied by a photograph of the child lying in a hospital bed wearing a surgical collar . According to the article , the child was injured by the bailiffs’ rough treatment , and everyone was appalled and angered .

( b ) The heading ‘ Bailiff pursues DATE right into hospital’ , with CARDINAL pictures of the plaintiff , one showing him on a stretcher , one of him grimacing in pain in the arms of the bailiff while his brother tries to obstruct the latter , and a close - up of the child , again grimacing in pain , next to the bailiff and the car . The article also details rough treatment by the bailiffs , reportedly causing injury to the child , who is said to have complained of neck pains and to have told reporters how he had been punched in the back of the neck by one of the bailiffs . The doctor treating him is reported to have fitted a surgical collar .

( c ) The heading ‘ Cries for help rang out in the ORG , again with pictures of the child and reports on the public ’s reaction to the bailiffs’ methods ;

( d ) The heading ‘ All for the good of the ORG , together with the court ’s findings and a picture of the child and

( e ) NORP letters from readers angered by the treatment of the child by his mother and the court , again with a picture of the plaintiff .

( CARDINAL ) DATE

( a ) Heading on front page ‘ NORP abducted from hospital’ , together with a photograph .

( b ) The heading ‘ GPE country moved by abduction’ , with CARDINAL photographs . The article criticises the allegedly rough methods of the bailiffs .

( c ) The heading ‘ Did the bailiff want to put a sticker on the ORG , also with critical comments .

( d ) The heading ‘ Abduction from hospital at dead of ORG , also with a photograph The article describes the child ’s removal from the hospital by his mother and quotes the father as saying that unless tough action is taken against the bailiffs , he will lodge a complaint .

( e ) The heading ‘ Minister PERSON says violence against children is PERSON again with a photograph and comments on the case , including by the then ORG Minister PERSON , who condemns violence against children .

( CARDINAL) DATE

( a ) The heading ‘ Everyone wants NORP finally left in NORP : another report on the mother ’s flight with her child , accompanied by a photograph of the child .

( b ) The heading ‘ LOC like those with NORP are completely avoidable’ , also with a photograph . Comments on the case by a crisis - management expert .

( CARDINAL ) DATE

( a ) The heading ‘ NORP ’s case reopened’ , with photograph . The report states that a new expert psychological opinion on the child is to be ordered .

( b ) The heading ‘ Custody battle – the story so far’ , describing events up to that point .

( c ) The heading ‘ NORP hatred in salmon pink’ , with comments by PERSON , again with a picture of NORP grimacing in pain as the bailiff tries to put him in the police car .

( CARDINAL ) DATE

Under the heading ‘ NORP already in PERSON , a report stating that the child has already been taken to GPE by his mother and has had to leave his beloved dog behind . The report is accompanied by a picture .

( CARDINAL ) DATE

The heading ‘ I do n’t want to stay here any DATE , again with CARDINAL pictures of NORP . The reporter writes that the judge and bailiffs will have to answer to a disciplinary board and that NORP no longer wishes to stay with his mother in GPE but wants to return to his father in GPE .

( CARDINAL ) DATE

The heading ‘ ORG soon to search for missing PERSON , again with a picture of the child . The report states that the boy has tried to run away from his mother and has disappeared .

( CARDINAL ) DATE

A reader ’s letter under the heading ‘ Violence is not the ORG , in which a NORP criticises the judge , again with a picture showing NORP grimacing in pain . ”

ORG allowed the action and ordered the applicant company to pay damages in the amount of ORG CARDINAL,CARDINAL , to publish the judgment in its newspaper , and to bear the costs of the proceedings . ORG found that by publishing the above articles containing details of the custody dispute over DATE PERSON , and , moreover , disclosing his full name and accompanied by a photograph of him partly showing a highly distressed facial expression , the applicant company had exposed his strictly private life in a manner likely to compromise him in public , in breach of section CARDINAL of LAW . Moreover , the articles published on CARDINAL , DATE and DATE had , without justification , disclosed the identity of a person who had been the victim of a criminal offence to a large and not directly informed circle of people , in breach of section ORG of LAW .

ORG accepted that there existed a direct link between the events reported on and the public interest because of the sharp criticism voiced of the conduct of the court officials who had attempted to enforce the custody order . However , the person with custody of NORP had not agreed to publication and the public interest in the events could have been satisfied without giving the child ’s full name and publishing pictures of him .

On DATE the applicant company appealed . Relying on LAW , it argued , inter alia , that ORG had failed to take into account the fact that there had already been an ongoing debate and that NORP ’s father , acting as his son ’s spokesman and in his interests , had informed the media of the events . Furthermore , it claimed that it had only acted as a public watchdog , informing the public about the proceedings and criticising the domestic authorities in the public interest .

On DATE ORG partly allowed the appeal . It found that there had been no breach of section ORG of LAW , because under that provision a compensation claim existed only if a media outlet had described acts by which someone had become the victim of a crime and if the description violated the victim ’s protected interests . In the present case , however , it was not the description of a criminal act that had breached NORP ’s protected interests , since the proceedings against the court officials had ended without a conviction . ORG therefore remitted the case to ORG on this point .

It further emphasised that by giving details of the plaintiff ’s intimate family life and his full name , and by adding pictures of him , the newspaper had intruded into his strictly private life , as these details had merely been given in order to create a sensation and satisfy the curiosity of its readers . Even if there was a link to public life , a media outlet could report on a person ’s strictly private life only to the extent necessary to satisfy the need for information related to those elements which were of relevance to the public interest . Reporting on events relating to a person ’s strictly private life therefore had to be appropriate to the circumstances and proportionate . In the present case it had not been necessary for the purpose of informing the public of alleged shortcomings within the judiciary , nor had it been necessary to expose in such an intense and striking manner the severe strain being suffered by the juvenile plaintiff by inserting photographs showing his distress and despair , mentioning his full name and setting out the details of his seizure .

On DATE ORG ruled again on the case and found no breach of section ORG of LAW . It accordingly reduced the amount of compensation to LAW .

On DATE ORG upheld that decision .

Section CARDINAL of LAW , which has the title “ Interference with a person ’s most intimate personal sphere ” ( NORP des höchstpersönlichen PERSON ) , reads as follows :

“ ( CARDINAL ) If a person ’s strictly private life is discussed or presented in the media in a manner which is apt to compromise this person in public , the person concerned may claim compensation from the owner of the media for the injury suffered . The amount of compensation shall not exceed LAW ...

( CARDINAL ) No compensation claim under paragraph CARDINAL exists if

NORP the publication at issue is based on a truthful report on a public session of ORG or ORG , ORG , a regional diet or a committee of CARDINAL of these general representative bodies ;

NORP the publication is true and has a direct connection to public life ;

in the circumstances it could have been assumed that the person concerned had agreed to the publication ;

it is a direct broadcast on radio or television ( live programme ) and the employees or contractors of the radio or television station have not neglected the principles of journalistic diligence ;

the information has been published on a retrievable website and the owner of the media or its employees or contractors have not neglected the principles of journalistic diligence . ”

Section CARDINAL of LAW , which has the title “ Protection against divulging a person ’s identity in special cases ” ( ORG in besonderen NORP ) , reads as follows :

“ ( CARDINAL ) Where publication is made , through any medium , of a name , image or other particulars which are likely to lead to the disclosure to a larger not directly informed circle of people of the identity of a person who

NORP has been the victim of an offence punishable by the courts , or

NORP is suspected of having committed , or has been convicted of , a punishable offence ,

and where legitimate interests of that person are thereby injured and there is no predominant public interest in the publication of such details on account of the person ’s position in society , of some other connection with public life , or of other reasons , the victim shall have a claim against the owner of the medium ( publisher ) for damages for the injury suffered . The award of damages shall not exceed QUANTITY ; additionally , section CARDINAL ) , second sentence , shall apply .

( CARDINAL ) ORG interests of the victim shall in any event be injured if the publication

NORP in the case of subsection ( CARDINAL)CARDINAL , is such as to give rise to an interference with the victim ’s strictly private life or to his or her exposure ,

NORP in the case of subsection ( CARDINAL , relates to a juvenile or merely to a lesser indictable offence ( PERSON ) or may disproportionately prejudice the advancement of the person concerned .

NORP the publication of the information on the person has been decided officially , in particular for the purposes of criminal justice or public security ;

NORP the person concerned has agreed to the publication or if the publication is based on information given by that person to the media ;

Section CARDINAL(CARDINAL ) second sentence of LAW , to which reference has been made above , reads as follows :

“ The amount of compensation shall be fixed according to the extent of the publication , its impact and , in particular , the type of media and how broadly it is disseminated ; the compensation must not endanger the economic existence of the media owner . ”

Section CARDINAL of LAW , which has the title “ Separate compensation proceedings ” ( PERSON ) , insofar as relevant , reads as follows :

“ In a judgment by which compensation under LAW , DATE , CARDINAL or CARDINAL has been awarded on the basis of a separate compensation request , the court must also order the publication of the judgment if the person concerned so requests , ... ”


Violation of Art. 6-1;Violation of P1-1;Just satisfaction reserved

The applicant was born in DATE and lives in GPE .

Since DATE , the applicant had been receiving an old - age pension . From DATE , her pension was to be calculated under the Law on Calculating and ORG . The law introduced a new method for calculating pensions . This method , “ a pensioner 's individual multiplier ” was meant to link the pensioner 's pension to his or her previous earnings .

The authority in charge of the applicant 's pension , ORG of LOC of GPE , fixed the applicant 's multiplier at CARDINAL . The applicant considered that the agency had misread the law , and that her multiplier should be higher . On an unspecified date in DATE she challenged the agency 's decision in a court . Thus , in her view the net underpayments from DATE until DATE amounted to MONEY , without taking into account the raise of the local cost of living index .

The case came before ORG . On DATE the court held for the applicant . It found that the agency had misread the law : as from CARDINAL DATE the multiplier should have been TIME . Consequently , the agency was ordered to recalculate the applicant 's pension accordingly and pay it .

The agency appealed against the judgment , but on DATE ORG dismissed the appeal , and the judgment came into force . On DATE the court issued a writ of execution where it invited the local branch of ORG to recalculate the applicant 's old age pension , applying the multiplier PERSON , and pay it to the applicant . The enforcement proceedings against the ORG were initiated . The agency recalculated the pension in accordance with the judgment of DATE and requested the federal ORG to allocate respective amounts .

On DATE ORG had passed an Instruction on the Application of Limitations Established by the Law on Calculating and ORG ( hereinafter DATE “ Instruction ” ) . The ORG clarified how to apply the law .

NORP Some time thereafter a group of individuals challenged the Instruction before ORG . On DATE the enforcement of the judgment in the applicant 's favour was suspended in connection with the proceedings before ORG . On DATE ORG dismissed the complaint . It found that contrary to what the plaintiffs suggested ORG had not trespassed its authority when it issued the ORG , and that the ORG 's interpretation of LAW had been correct . On DATE the Cassation Section of ORG upheld this judgment on appeal .

On DATE , the agency asked ORG to re - open the case due to discovery of new circumstances . They argued that the interpretation of the law on pensions given by the ORG was different from that of ORG . Further , they referred to the decision of ORG of GPE which confirmed the lawfulness of the ORG . The agency argued that it had not known about those facts until after the litigation , and that the case should therefore be reconsidered .

On DATE , the district court granted the agency 's request and reopened the judgment under LAW . Under this Article , a court might reopen a judgment , if a party discovered significant circumstances that were not and could not have been known to this party during the litigation .

Having reconsidered the case , on DATE the district court dismissed the applicant 's claims in full . On DATE , the regional court upheld the judgment on appeal .

The Code of Civil Procedure of DATE ( “ CCivP ” ) , as in force at the material time , provided as follows :

Article CARDINAL . FAC for re - consideration

“ [ Judgments ] which have come into force may be re - considered on the basis of newly - discovered circumstances . The grounds for re - consideration ... shall be :

significant circumstances which were not and could not have been known to the party who applies for re - consideration ; ...

cancellation of a court [ judgment ] or of another authority 's decision which served as legal basis for the [ judgment ] in question . ”

Article CARDINAL . Making of application

“ ... [ An application for re - consideration of a [ judgment ] due to newly - discovered circumstances ] is to be made within DATE after the discovery of the circumstances . ”

Article CARDINAL . Ruling on the re - reconsideration of the case

“ ... The ruling ordering the re - consideration of the judgment ... due to newly - discovered circumstances is not subject to any appeal ” .

On DATE ORG of GPE adopted a ruling concerning certain provisions of LAW ( CCrP ) . In that ruling ORG decided that LAW CCrP ( “ FAC for re - consideration of a [ criminal ] case on the basis of newly discovered circumstances ” , which was in many respect similar to LAW ) was unconstitutional in that it limited the grounds for the re - opening of a criminal case by the situations of “ newly discovered circumstances ” . In that ruling ORG suggested that this provision of the ORG prevented rectification of judicial errors and miscarriages of justice .


The applicant is a NORP national , born in DATE and presently residing in GPE , GPE .

The applicant lived in GPE DATE . On DATE he was granted a residence permit based on the fact that he had married a NORP woman , PERSON They have a daughter , born in DATE , and a son , born in DATE . On DATE the applicant was granted a permanent residence permit .

On DATE the applicant was sentenced to DATE in prison for having threatened ORG ( olaga hot ) and obstructed the course of justice ( övergrepp i rättssak ) in DATE . On DATE he was convicted of CARDINAL counts of threatening behaviour and CARDINAL counts of obstruction of justice committed in DATE . The threats were directed against ORG and members of her family . The applicant received a CARDINAL months’ prison sentence . He was released on probation on DATE .

On an unspecified date the applicant and PERSON divorced . It appears that ORG has custody of the children . After his release from prison the applicant had contacts with the children DATE at ORG ’s home .

By a judgment of DATE ORG ( tingsrätten ) of GPE sentenced the applicant to CARDINAL months’ imprisonment , ordered his expulsion from GPE and prohibited him from returning before DATE . The court found that , on DATE , the applicant had turned up at ORG ’s home and had assaulted and threatened ORG and guests she had invited to a party . As a result of the assault , ORG had facial injuries and a broken nose . The applicant was found guilty also of criminal damage ( skadegörelse ) .

As regards the applicant ’s expulsion , ORG made the following conclusions :

( Translation )

“ The crimes in question are such that it is possible to expel the applicant under LAW , LAW , second sentence , first paragraph of LAW [ Utlänningslagen ] . However , LAW , LAW requires that there be special reasons for the expulsion as , at the time of the indictment , he had been living in GPE for DATE . [ The applicant ] has not established himself in the NORP labour market . For the third time in DATE , he has committed crimes against the persons representing his only connection to GPE . Further , his crimes seem to have become more serious . Also his children have been indirectly affected by his criminal acts . It appears that the contacts with the children will be very limited in the foreseeable future even if [ the applicant ] remains in GPE . In weighing the circumstances in favour of and against expulsion , ORG finds that there are special reasons for expelling [ the applicant ] from GPE . ... ”

On DATE ORG ( hovrätten ) of GPE and PERSON upheld ORG judgment . On DATE ORG ( Högsta domstolen ) refused the applicant leave to appeal .

Later the applicant requested the Government to exercise its power under LAW , LAW of LAW to annul the expulsion order . By a decision of CARDINAL DATE the ORG rejected the request .

On DATE the applicant was released on probation and expelled to GPE .


CASE OF ALİ KEMAL UĞUR AND OTHERS v. TURKEY

Violation of Article 6 - Right to a fair trial

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

The applicants ' ancestors emigrated to ORG from the GPE during the NORP - Russian War of DATE . In DATE the authorities gave them usufructuary rights to a piece of land located within the administrative division of the town of ORG , near GPE . Although they were able to use the land , they were not able to buy it . In DATE , when LAW of the then newly founded GPE entered into force , it became possible for private individuals to own property .

DATE a Mr PERSON , who had been an army commander , a member of ORG and a judge , forced the applicants ' ancestors and a number of other villagers living in the same area of their land and registered the land in his own name and that of his wife .

A court case was brought in DATE to challenge the registration of the land in the name of the PERSON family . In DATE the applicants ' ancestors applied to ORG ( hereafter “ the ORG ” ) and asked to be given permission to join the proceedings as interveners . This request was rejected on DATE .

An appeal lodged by the applicants ' ancestors against the decision of ORG was upheld by ORG and the decision of DATE was thus quashed .

The proceedings , which recommenced before ORG in DATE , ended DATE with a decision of CARDINAL DATE . ORG found in favour of the applicants ' ancestors ( as , by DATE , some of the applicants had started taking part in the proceedings themselves , for practical reasons those applicants as well as the ancestors of the younger applicants will hereafter be referred to as “ the applicants ” ) and ordered the registration of the land in their names in ORG .

An appeal lodged by the ORG and the heirs of PERSON against the decision of DATE was upheld by ORG on DATE . The decision of CARDINAL DATE was thus quashed . A revision request made by the applicants was also rejected .

Proceedings recommenced before ORG in DATE . These proceedings continued for DATE and ended on DATE . In its decision ORG rejected the applicants ' claims in respect of plots CARDINAL . CARDINAL , and severed the proceedings in so far as they concerned plots CARDINAL . CARDINAL - CARDINAL .

In the meantime , on DATE of the applicants , namely PERSON , PERSON , PERSON , PERSON and PERSON , gave a power of attorney to PERSON to represent them in all proceedings in GPE .

On DATE the applicants appealed against the decision of DATE in so far as that decision concerned their entitlement to plots CARDINAL . CARDINAL . This appeal was rejected by ORG on DATE . ORG upheld the requests made by a number of other persons who were also participating in the proceedings in respect of plots FAC . CARDINAL and quashed the decision of DATE in so far as it concerned those persons ' claims . A new set of proceedings in respect of those persons ' entitlement to plots CARDINAL . CARDINAL began .

A request made by the applicants on DATE for a revision of the decision was rejected on DATE and the decision of CARDINAL DATE thus became final in so far as it concerned the applicants ' entitlement to plots nos . CARDINAL - CARDINAL . The proceedings concerning other persons ' entitlement to plots CARDINAL . CARDINAL continued .

In DATE new proceedings started before ORG in respect of plots CARDINAL . CARDINAL - CARDINAL . These proceedings ended on DATE with a decision in which the applicants ' claims in respect of plot no . CARDINAL were rejected . The applicants appealed on DATE .

On DATE ORG quashed the decision of DATE and decided that the proceedings concerning plots nos . DATE should be joined to the other pending proceedings which concern other persons ' entitlement to plots nos . CARDINAL .

The proceedings concerning both sets of plots were thus joined and they are still continuing with the participation of CARDINAL heirs of the original plaintiffs and of the PERSON family .

The names of CARDINAL of the applicants - Mr PERSON and PERSON PERSON in the petitions submitted to the domestic courts and in the decisions rendered by those courts .


Preliminary objection dismissed (victim);Violation of P7-4

On DATE , the applicant , whilst driving under the influence of drink , knocked down a cyclist who was fatally injured . After hitting the cyclist , the applicant drove off without stopping to give assistance and only gave himself up to the police TIME .

On DATE , the St. ORG ( Bezirkshauptmannschaft ) , finding the applicant guilty of a number of road traffic offences , ordered him to pay a fine of CARDINAL NORP schillings ( ORG ) with CARDINAL days’ imprisonment in default . This sentence included a fine of ORG CARDINAL,CARDINAL with CARDINAL days’ imprisonment in default imposed for driving under the influence of drink , contrary to sections CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL)(a ) of FAC DATE ( Straßenverkehrsordnung ) .

On DATE ORG ( PERSON ) convicted the applicant under LAW of LAW ) of causing death by negligence “ after allowing himself ... to become intoxicated ... through the consumption of alcohol , but not to an extent which GPE ] his responsibility ... ” , and sentenced him to CARDINAL months’ imprisonment .

The applicant ’s appeal against conviction and sentence was dismissed by ORG ( Oberlandesgericht ) on DATE . The applicant argued that , in the light of the ORG ’s PERSON v. GPE judgment ( DATE , Series A no . CARDINAL-C ) , the decision of ORG should be quashed . ORG recognised that the double conviction violated LAW CARDINAL to the LAW . However , it found that , in spite of the PERSON case , NORP law remained unchanged . It distinguished the PERSON judgment on the ground that in that case the administrative proceedings had been after the criminal proceedings , whereas in the present case , the order was reversed . ORG explained that the double punishment was possible because there was no provision of NORP law which provided for a principle of “ subsidiarity ” between the administrative and the criminal proceedings in the present circumstances . It concluded that this could not hinder the criminal proceedings which had a much wider scope . The applicant ’s conviction was therefore upheld .

On DATE the sentence of CARDINAL months’ imprisonment imposed on the applicant was reduced to DATE by virtue of the Federal President ’s prerogative of pardons .

Section CARDINAL ( CARDINAL ) of LAW DATE provides that it is an offence for a person to drive a vehicle if the proportion of alcohol in his blood or breath is equal to or QUANTITY respectively .

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

“ ( CARDINAL ) It shall be an administrative offence ( PERSON ) , punishable with a fine of not less than ORG CARDINAL,CARDINAL and not more than ATS CARDINAL,CARDINAL or , in default of payment with CARDINAL to CARDINAL GPE imprisonment , for any person :

( a ) to drive a vehicle when under the influence of drink ...

( CARDINAL ) An administrative offence is not committed where : ...

( c ) facts constituting an offence under sub - sections ( CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) or ( CARDINAL ) also constitute an offence falling within the jurisdiction of the [ ordinary ] courts ... . ”

In its judgment of CARDINAL DATE ORG had to examine the constitutionality of LAW subsection ( CARDINAL ) of LAW , by virtue of which the administrative offence of driving under the influence of drink was not subsidiary to an offence falling within the jurisdiction of the courts .

ORG noted that it was not contrary to LAW if a single act constituted more than one offence . This was a feature common to the criminal law of many NORP countries . However , it was also accepted in criminal law doctrine that sometimes a single act only appeared to constitute CARDINAL offence , whereas interpretation showed that one offence entirely covered the wrong contained in the other so that there was no need for further punishment . Thus , LAW prohibited the trial and punishment of someone for different offences if interpretation showed that one excluded the application of the other . Where , as in the present case , the law explicitly provided that one offence was not subsidiary to another , it had to be guided by LAW . The ORG ’s Gradinger judgment of DATE had shown that there was a breach of this Article if an essential aspect of an offence , which had already been tried by the courts , was tried again by the administrative authorities .

Section CARDINAL subsections ( CARDINAL)(a ) and ( CARDINAL ) of LAW , taken together , meant that the criminal administrative offence of drunken driving could be prosecuted even when an offence falling within the competence of the normal criminal courts was also apparent . According to the criminal courts’ constant case - law under LAW § CARDINAL of LAW ( cited below ) , drunken driving was also an essential aspect of certain offences tried by these courts . Insofar as LAW ( CARDINAL ) of FAC limited the subsidiarity of administrative offences to those enumerated in subsections ( CARDINAL ) to ( CARDINAL ) of section CARDINAL , thus excluding subsidiarity for the offence of drunken driving contained in section CARDINAL ( CARDINAL)(a ) , it violated LAW .

Under LAW , it is an offence , punishable by up to one year ’s imprisonment , to cause death by negligence . Where the special circumstances of LAW apply , the maximum possible sentence is increased to up to three years’ imprisonment .

Article CARDINAL § CARDINAL applies where a person commits the offence

“ after allowing himself , even if only negligently , to become intoxicated ... through the consumption of alcohol , but not to an extent which excludes his responsibility , notwithstanding that he has foreseen or could have foreseen that he would shortly have to engage in an activity likely to pose ... a danger to the lives ... of others if performed in that state ” .

By virtue of an irrebuttable presumption applied by the criminal courts , a driver with a blood alcohol level of QUANTITY or higher is deemed to be “ intoxicated ” for the purposes of LAW .


Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in PERSON .

On DATE the applicant was taken into police custody on suspicion of committing “ extortion and blackmail ” and “ causing a public danger ” .

On DATE the applicant was brought before an investigating judge of ORG ( Okrožno sodišče v PERSON ) , who opened a judicial investigation against him and remanded him in pre - trial detention .

During the judicial investigation proceedings , it was reported in several newspaper articles that the applicant had committed a number of criminal acts .

The judicial investigation against the applicant was discontinued on CARDINAL DATE for lack of evidence and the applicant was released on DATE .

On an unspecified date , and in accordance with LAW , the applicant lodged a request with ORG for compensation in respect of the damage sustained . On DATE the ORG offered to pay the applicant CARDINAL NORP tolars ( SIT – approximately CARDINAL euros ( ORG ) ) , which the applicant did not accept .

On DATE the applicant instituted civil proceedings against ORG and ORG in the ORG seeking compensation in the amount of SIT CARDINAL ( approximately EUR CARDINAL ) for non - pecuniary damage . He also requested to be exempted from payment of court fees .

On DATE the court held a hearing .

NORP In addition , on DATE the applicant was arrested on charges of drug trafficking . He remained in pre - trial detention until DATE when ORG found him guilty as charged .

A hearing in the civil proceedings scheduled for DATE had to be postponed because of the applicant 's detention . Subsequently , a hearing was held on DATE .

As regards the criminal proceedings , on DATE ORG ( PERSON v PERSON ) allowed the applicant 's appeal against the first - instance court 's judgment and remitted the case for re - examination . On DATE the applicant was acquitted . On an appeal by the public prosecutor , the judgment was upheld by ORG on DATE .

NORP Moreover , in DATE , the applicant was accused of drug trafficking in CARDINAL other sets of criminal proceedings . The proceedings were discontinued as the public prosecutor withdrew the bills of indictment .

On DATE the applicant filed written submissions in the civil proceedings which he had instituted on DATE before ORG and increased the amount of his compensation claim .

The court held a hearing on DATE . The applicant did not appear at that hearing .

On DATE , after a hearing , ORG handed down a judgment in which it awarded the applicant SIT CARDINAL ( approximately EUR CARDINAL,CARDINAL ) . Both parties appealed .

On DATE ORG allowed the defendant 's appeal and reduced the amount of the award to SIT CARDINAL ( approximately EUR CARDINAL,CARDINAL ) . That judgment became final .

On DATE ORG requested ORG ( Okrožno sodišče v PERSON ) to open a criminal investigation against the applicant and CARDINAL other individuals for drug trafficking .

According to the Government , the applicant was not available to the prosecuting authorities during the investigation stage , although he had promised the police in a telephone conversation that he would report for questioning . In addition he had not accepted the summons – substitute notification had thus been served on DATE . The investigating judge issued CARDINAL orders for the applicant to appear before the court , but to no avail .

On DATE ORG indicted the applicant and CARDINAL other individuals in ORG , accusing the applicant of drug trafficking .

On DATE the court ordered the applicant 's arrest and issued an arrest warrant .

At a hearing held on DATE , the applicant 's proceedings were separated and transferred to ORG . However , they were eventually transferred back to ORG . In addition , the proceedings directed against the other CARDINAL individuals were joined to the applicant 's proceedings .

On DATE the applicant was arrested and taken into police custody .

The court held hearings on DATE , DATE , DATE , DATE and DATE .

On DATE the court pronounced a judgment finding the applicant guilty and sentencing him to DATE imprisonment . The court ordered that the applicant remain in detention until he started serving his sentence .

The applicant appealed to ORG ( PERSON sodišče v PERSON ) . The court allowed the appeal on DATE and remitted the case to the first - instance court for re - examination . The court also ordered the applicant 's release .

A hearing was scheduled for DATE but later postponed since one of the accused could not be summoned . Hearings scheduled for DATE and CARDINAL DATE were also postponed .

The court held hearings on DATE , DATE and DATE .

Another hearing scheduled for DATE was adjourned because CARDINAL defendants did not appear . Further hearings were then held on DATE and DATE .

After a hearing on DATE , the court handed down a judgment in which it acquitted all CARDINAL defendants .

NORP The public prosecutor lodged an appeal .

The proceedings are pending before ORG .

The following provisions of the DATE LAW ( PERSON , ORG no . CARDINAL ) are relevant to the present case :

“ Everyone has the right to have any decision regarding his rights , duties and any charges brought against him made without undue delay by an independent , impartial court constituted by law . ... ”

“ Everyone shall have the right to compensation for damage caused by the unlawful acts of a person or body when performing a function or engaged in an activity on behalf of a ORG or local authority or as a holder of public office . ... ”

“ The Constitutional Court shall hear :

... constitutional appeals in which specific acts are alleged to have infringed a human right or fundamental freedom ;

Unless otherwise provided by law , the Constitutional Court shall hear a constitutional appeal only if legal remedies have been exhausted . The Constitutional Court shall decide whether a constitutional appeal is admissible for adjudication on the basis of statutory criteria and procedures . ”

Following the GPE v. GPE judgment of DATE ( no . CARDINAL , ORG CARDINALX ) and decision no . U - I-CARDINAL/CARDINAL of ORG ( DATE ) , both obliging ORG to establish conditions in which the right to a trial without undue delay must be afforded , ORG adopted on DATE a ORG on ORG , the so - called ORG . Its goal is the elimination of backlogs in NORP courts and prosecutor 's offices by DATE , by providing for structural and managerial reform of the judiciary .

The preparation of the LAW on the Protection of the Right to a Trial without undue Delay was part of ORG .

Since DATE the Act on the Protection of the Right to a Trial without undue Delay ( Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja , ORG no . DATE LAW ” ) has been implemented . Under its sections CARDINAL and CARDINAL , the right to a trial within a reasonable time is guaranteed for parties to court proceedings , participants in non - contentious proceedings and injured parties in criminal proceedings .

Section CARDINAL provides for CARDINAL remedies to expedite pending proceedings – a supervisory appeal ( nadzorstvena pritožba ) and a motion for a deadline ( rokovni predlog ) DATE and , ultimately , for a claim for just satisfaction in respect of damage sustained because of the undue delay ( zahteva za pravično zadoščenje ) .

Section CARDINAL defines the criteria that domestic authorities should take into account when assessing the complaints :

“ When deciding on the legal remedies under LAW , the circumstances of the particular case shall be taken into account , namely : its complexity in terms of facts and law ; actions of the parties to the proceedings , in particular as regards the use of procedural rights and fulfilment of obligations in the proceedings ; compliance with rules on the set order for resolving cases , or with statutory deadlines for fixing preliminary hearings or for giving court decisions ; the manner in which the case was heard before a supervisory appeal or a motion for a deadline was lodged ; the nature and type of case and its importance for a party . ”

The supervisory appeal is governed by sections CARDINAL and DATE , which provide as follows :

“ ( CARDINAL ) If a party considers that the court is unduly protracting the decision - making , he or she may lodge a supervisory appeal in writing before the court hearing the case ; the decision thereon shall be taken by the ... president of the court ( hereinafter ' the president of the court ' ) .

( CARDINAL ) For the purposes of decision - making concerning the protection of the right to a trial without undue delay , the supervisory appeal shall contain the following elements :

– personal or corporate name or any other name of the party , with address of permanent or temporary residence or registered office ;

– personal or corporate name or any other name of the representative or lawyer , with address of permanent or temporary residence or registered office ;

– indication of the court hearing the case ;

– reference number of the case or date on which the case was filed in the court ;

– indication of circumstances or other particulars concerning the case , which demonstrate that the court is unduly protracting the decision - making ;

– handwritten signature of the party , representative or lawyer . ”

“ ( CARDINAL ) If the supervisory appeal is manifestly unfounded having regard to the timetable for resolution of the case concerned by the supervisory appeal , the president of the court shall dismiss the appeal by a ruling .

( CARDINAL ) If the supervisory appeal does not contain all the required elements referred to in section CARDINAL(CARDINAL ) of this LAW , the president of the court shall dismiss it by a ruling . No appeal shall lie against that ruling .

( CARDINAL ) If no ruling as provided for in subsections CARDINAL or CARDINAL of this section is given , the president of the court shall , in the framework of his court management competence under the statute governing the court system , forthwith request the judge or chair of a court panel ( hereinafter ' the judge ' ) to whom the case has been assigned for resolution to submit a report indicating reasons for the duration of proceedings , not DATE after receiving the request of the president of the court or after obtaining the file , if necessary for drawing up the report . The report shall include the declaration in respect of criteria referred to in DATE of this LAW and the opinion on the time - limit within which the case may be resolved . The president of the court may also require the judge to submit the case file if he assesses that , in the light of allegations of the party indicated in the supervisory appeal , its examination is necessary .

( CARDINAL ) If the judge notifies the president of the court in writing that all relevant procedural acts will be performed or a decision issued within a time - limit not exceeding DATE following the receipt of the supervisory appeal , the president of the court shall inform the party thereof and thus conclude the consideration of the supervisory appeal .

( CARDINAL ) If the president of the court establishes that in view of the criteria referred to in LAW CARDINAL of this Act the court is not unduly protracting the decision - making in the case , he shall dismiss the supervisory appeal by a ruling .

( CARDINAL ) If the president of the court has not informed the party in accordance with subsection

( CARDINAL ) If the president of the court establishes that the undue delay in decision - making in the case is attributable to an excessive workload or an extended absence of the judge , he may order that the case be reassigned . He may also propose that an additional judge be assigned to the court or order other measures in accordance with the statute governing the judicial service .

( CARDINAL) A judge may be assigned by the DATE schedule of allocation to act in place of or together with the president of the court in exercising the court management competence for decision - making in respect of the supervisory appeal . ”

Sections CARDINAL , CARDINAL and CARDINAL define the motion for a deadline and provide for measures that may be applied by the court dealing with the motion . They read , in so far as relevant , as follows :

“ ( CARDINAL ) If , under section CARDINAL ) or ( CARDINAL ) of this LAW , the president of the court dismisses the supervisory appeal or fails to respond to the party within DATE or fails to send the notification referred to in section CARDINAL(CARDINAL ) of this LAW within the said time - limit or if appropriate procedural acts have not been performed within the time - limit set in the notification or ruling of the president of the court , the party may lodge a motion for a deadline under section CARDINAL(CARDINAL ) of this LAW with the court hearing the case .

( CARDINAL ) The party may lodge the motion for a deadline within DATE after receiving the ruling or after the time - limits provided for in subsection QUANTITY of this section . ”

“ ( CARDINAL ) The president of the higher court in the judicial area covering the local court , district court or other court of first instance , shall be competent to decide on the motion for a deadline concerning cases heard by the local court , district court or other court of first instance .

“ ( CARDINAL ) If the motion for a deadline is manifestly unfounded , having regard to the timetable for the resolution of the case and the actions of the party , the president of the court shall dismiss it by a ruling .

( CARDINAL ) The president of the court shall decide on the motion for a deadline within DATE after receiving it . ”

Section CARDINAL governs the competence of ORG in cases where a supervisory appeal has been lodged with the ORG rather than with the court of competent jurisdiction :

“ ( CARDINAL ) If the supervisory appeal is lodged with the Ministry responsible for justice ( hereinafter referred to as ' ORG ) , the Minister ... responsible for justice ( hereinafter referred to as ' the Minister ' ) shall refer it to the president of the court of competent jurisdiction to hear it in accordance with this LAW and shall ask to be kept informed of the findings and decision .

Further to section CARDINAL , just satisfaction may be provided by payment of monetary compensation , a written statement of ORG or the publication of a judgment :

“ ( CARDINAL ) If the supervisory appeal lodged by the party has been granted or if a motion for a deadline has been lodged , the party may claim just satisfaction under the present Act .

( CARDINAL ) Just satisfaction shall be provided by :

i. payment of monetary compensation for damage caused by a violation of the right to a trial without undue delay ;

ii . a written statement from the State Attorney 's ORG that the party 's right to a trial without undue delay has been violated ;

iii . the publication of a judgment to the effect that the party 's right to a trial without undue delay has been violated . ”

Section CARDINAL provides for a compensatory remedy and fixes the maximum amount that could be awarded :

“ ( CARDINAL ) Monetary compensation shall be payable for non - pecuniary damage caused by a violation of the right to a trial without undue delay . Strict liability for any damage caused shall lie with GPE .

( CARDINAL ) Monetary compensation in respect of individual , finally decided cases shall be awarded in an amount of MONEY .

( CARDINAL ) When deciding on the amount of compensation , the criteria referred to in section CARDINAL of this Act shall be taken into account , in particular the complexity of the case , actions of the ORG , actions of the party and the importance of the case for the party . ”

Sections DATE , CARDINAL govern just satisfaction proceedings and proceedings in respect of pecuniary damage :

“ ( CARDINAL ) Proceedings to enforce a claim for just satisfaction , provided that the condition referred to in section CARDINAL ) of this Act is met , shall be instituted by a party by means of an application for settlement lodged with the State Attorney 's Office with a view to reaching an agreement on the type or amount of just satisfaction . The party may lodge such application within DATE after the final resolution of the case . The ORG Attorney 's Office shall rule on the application of the party within DATE if it establishes that the just satisfaction claim is substantiated . Until the expiry of the above - mentioned period , the party may not assert any claim for monetary compensation by way of just satisfaction by bringing an action before the competent court .

( CARDINAL ) If , in accordance with subsection CARDINAL of this section , the agreement has been reached with the party , the ORG Attorney 's ORG shall enter into an out - of - court settlement with the party . ”

“ ( CARDINAL ) If no agreement under LAW of this LAW is reached upon the application for settlement , or the ORG Attorney 's ORG and the party fail to negotiate an agreement within DATE of the application being lodged , the party may bring an action for damages .

( CARDINAL ) An action for damages against GPE shall be brought not DATE after the final resolution of the party 's case .

“ ( CARDINAL ) Action in respect of pecuniary damage caused by a violation of the right to a trial without undue delay may be brought by the party within DATE of the final ruling of the court on the party 's case in accordance with the provisions of LAW concerning pecuniary damage .

Sections CARDINAL and CARDINAL further provide for payment of compensation :

“ ( CARDINAL ) The ORG Attorney 's ORG shall pay monetary compensation on the basis of the settlement referred to in section CARDINAL(CARDINAL ) of this LAW and for all appropriate costs incurred by the party in connection therewith .

( CARDINAL ) The ORG Attorney 's ORG shall pay monetary compensation and the party 's costs of the proceedings on the basis of a final court decision which has established the violation of the right to a trial without undue delay in the proceedings , under LAW of the present LAW . ”

“ Funds ... shall be earmarked in LAW within the framework of the financial plan of ORG . ”

“ ( CARDINAL ) In cases where a violation of the right to a trial without undue delay has already ceased and the party had filed a claim for just satisfaction with the international court before the date of implementation of this LAW , the ORG Attorney 's ORG shall offer the party a settlement on the amount of just satisfaction within DATE after the date of receipt of the case referred by the international court for the settlement procedure . The party shall submit a settlement proposal to the ORG Attorney 's ORG within DATE after the date of receipt of the proposal of the ORG Attorney 's ORG . The State Attorney 's Office shall decide on the proposal as soon as possible and within DATE at the latest . ...

( CARDINAL ) If the proposal for settlement referred to in subsection CARDINAL of this section is not acceded to or the ORG Attorney 's ORG and the party fail to negotiate an agreement within DATE after the date on which the party filed its proposal , the party may bring an action before the competent court under this LAW . The party may bring an action within DATE after receiving the reply from the ORG Attorney 's ORG that its proposal referred to in the previous paragraph was not acceded to , or after the expiry of the period fixed in the previous paragraph for the ORG Attorney 's ORG to decide to proceed with settlement . Irrespective of the type or amount of the claim , the provisions of LAW concerning small claims shall apply in proceedings before a court . ”


The applicant , a NORP citizen born in DATE , is a pensioner living in GPE ( GPE ) .

Until DATE the applicant , who draws an old - age pension , lived with her husband in a house belonging to He . PERSON , one of her CARDINAL sons , in ORG in the GPE of GPE . As she was suffering from leg sores , she received help from ORG to the Sick and Housebound from DATE . In DATE He . PERSON moved in .

In DATE , at their request , the applicant and her husband were placed under the guardianship ( ORG ) of their other son , DATE However , He . PERSON objected to this . At DATE the applicant 's husband moved into the S. Nursing Home at PERSON in the GPE of GPE . It was agreed that the applicant would also move in within DATE , but she did not do so .

NORP On DATE a new guardian , PERSON , was appointed . At the applicant 's request and in view of He . PERSON 's resistance to the new guardian , the guardianship order was discontinued in respect of the applicant on DATE , but the order in respect of her husband remained effective .

Early in DATE the applicant 's husband died .

On DATE ORG to the Sick and Housebound wrote to ORG ( LANGUAGE - behörde ) , stating , inter alia :

“ For the following reasons [ the applicant 's ] treatment and care is causing increasing difficulty ; for DATE now it has become impossible . Our programme is being disrupted : virtually every day we must stand outside a closed door and wait until He . M , her son , perhaps deigns to open it , scantily dressed . Frequently , we must try again at another time ... A collection of newspapers , cardboard boxes and full plastic bags makes it difficult for us to gain access to the equipment we need for our work ... If [ the applicant ] is bedridden , which she was from DATE to CARDINAL DATE because of the lack of heating in the rooms , we are unable to undertake even the minimum care of [ her ] on account of the chaos in the room [ i m räumlichen Debakel ] ... We will be able to continue to provide care for [ the applicant ] until DATE . If [ she ] or her family wishes us to continue our services , this will be possible after DATE , but only on the following conditions :

We expect He . PERSON to open the door to us at the latest by TIME , and to be properly dressed ;

We expect heated rooms in DATE in order to provide the necessary care ;

We require space to be made available in [ the applicant 's ] bedroom , and the spare bed , as well as the boxes and bags that are lying around , to be taken out , as they hinder our work ; access to [ the applicant 's ] bed must be free ;

Once a DATE we wish to put fresh linen on [ the applicant 's ] bed ; He . M. shall wash the linen , or have it washed elsewhere ;

If [ the applicant ] is bedridden , she should have a warm TIME meal ( to be provided by the home services of the old people 's home ) . ”

It appears that the applicant and He . PERSON did not respond to that proposal . On DATE ORG to the Sick and Housebound stopped visiting them . Subsequently , following an eye operation , the applicant 's eyesight deteriorated . From DATE the association 's doctor ceased to visit the applicant , who continued to live with He . M.

On DATE ORG ) requested ORG ( ORG ) to place the applicant in an old people 's nursing home .

On DATE the LOC Governor visited the applicant . The applicant explained that , as a rule , her son did the cooking and that she was given enough to eat . She could go to the toilet unassisted , and washed herself in the kitchen . Her leg sores were washed and treated by a woman who helped her . The applicant also stated that she did not wish to go to ORG .

On DATE ORG ordered the applicant 's placement for an unlimited period in GPE on account of serious neglect ( schwere PERSON ) . The ORG relied on ORG et seq . of ORG ( PERSON ) and LAW ( PERSON über die fürsorgerische GPE ) of the GPE of GPE . The order requested the municipal police , together with the health inspectors , to implement the order on DATE . The order noted that the applicant required permanent treatment in view of her leg sores and cataract , that she no longer received care from a doctor or an association , and that it was not certain that she had enough to eat . The order , referring to intolerable conditions of hygiene in the unheated flat , stated that this situation , which had already lasted for DATE , would not change in the foreseeable future .

On DATE the applicant was placed in the S. Nursing Home in GPE .

The applicant and He . PERSON , her son , each filed an appeal ( PERSON ) with LAW Rekurskommission ) of the GPE of GPE . ORG consisted of CARDINAL judges , its president being a lawyer . The other QUANTITY persons were specialised judges , CARDINAL of whom , the rapporteur , was a doctor .

On DATE ORG conducted a hearing at which the applicant , He . PERSON , their lawyer , a member of ORG and a representative of ORG were present . According to the record of the hearing , the applicant explained that she had no reason to be unhappy with the nursing home , that , as she could no longer walk , it would be better for her to stay there , and that she did not see how matters could get better for her . However , she also said that she “ wanted to get out of GPE .

ORG dismissed the appeals DATE . As to the facts it found :

“ The situation at [ the applicant 's home ] was apparently catastrophic , CARDINAL parties found it necessary to file reports or make statements . It is noted in the file that lately [ the applicant ] had taken to staying in bed , her eyesight was very poor , and she could not walk or stand properly . According to her own submissions , she has to hold on to support wherever she goes . She needs a wheelchair , but does not have one at home . The flat was not heated , there was refuse everywhere , and no one was catering for meals . The nurse responsible for [ the applicant 's ] care had already stated on a previous occasion that her leg sores had not healed because of her living conditions . The nurse now states that in DATE of care she had noticed a serious loss of body weight , which she attributed to the fact that [ the applicant 's son ] was not taking sufficient care to ensure that his mother was eating properly . A certain Mr Hi . , who had brought [ the applicant ] home after her stay in hospital , had been horrified by the state of the flat and said that it was not heated . The fruit vendor also reported that the situation was horrific . When PERSON , the head of the social services , had been asked how [ the applicant ] responded to the nursing home , she had answered that she had been present when [ the applicant ] had arrived . At that time [ the applicant ] had not been able to walk , she was not properly dressed ( she was wearing nylon tights and a torn woollen jacket ) and smelled badly . PERSON was shocked and declared that she had never seen a person in such a state , although she had a long experience in guardianship matters . ”

In its decision ORG considered that CARDINAL grounds had been made out under LAW that justified withdrawing the applicant 's liberty on grounds of welfare assistance . Firstly , the applicant had been neglected , as she was no longer able to tend to her most basic dietary and hygiene needs . She could not even dress herself . Without outside help she was confined to bed . Since ORG to the Sick and Housebound had stopped visiting , the problem was unresolved , particularly as the applicant refused to go into the S. Nursing Home voluntarily . In respect of the second ground , ORG considered that “ during the hearing it had come to the conclusion that the applicant had a mental disability ( senile dementia ) ” ( Geistesschwäche ( altersbedingte Demenz ) ) . In view of that disability , ORG considered that the applicant 's placement in a nursing home “ would be justified even if it was considered that the degree of neglect was not sufficiently serious ” . The decision continued :

“ In this context , the appellants ' argument is not helped by the fact that [ the applicant ] has accepted that she needs to go into a nursing home , as she explained during the appeal hearing . It is true that there would be no need for deprivation of liberty on grounds of welfare assistance if [ the applicant ] went to reside at the S. Nursing Home of her own free will . However , it transpires from the case file that although she has already frequently stated that she was now willing to enter PERSON voluntarily , finally this has not happened . ”

In ORG view , if the applicant were released , she would return to her son , who was unable to provide sufficient care for her , as he was himself an invalid with poor eyesight . Yet , the S. Nursing Home , which could provide the necessary care , was ideal for the applicant as it was in an area she knew . Indeed , the applicant was hardly aware of the deprivation of liberty , which was minimal , and in fact it mainly affected her son , who did not want to leave his mother . ORG further found that the deprivation of liberty on grounds of welfare assistance complied with LAW ) of the LAW , since that provision also permitted a deprivation of liberty in cases of vagrancy , a term that was to be understood in a wide sense .

The applicant and her son He . PERSON lodged a public - law appeal ( staatsrechtliche Beschwerde ) which ORG ( PERSON ) dismissed on DATE . The decision was served on DATE .

In so far as the applicant and her son complained that ORG had not examined whether less stringent measures were possible , the court found :

“ The ORG concludes on the facts that the first appellant [ the applicant ] is no longer capable of looking after and caring for herself , feeding herself or even dressing herself ; without outside help she would be confined to bed ; the second appellant [ the applicant 's son ] who is an invalid , and is in fact no longer able to see , is unable to look after her , and there is nobody else who is in a position to care for her ; other attempts which have been made to resolve this problem have failed ; in the end , placement in the S. Nursing Home at ORG has been considered to be the only means of preventing neglect . ORG has therefore duly considered the proportionality of the deprivation of liberty ...

Whether in the case of the first appellant there exists , apart from serious neglect , some mental disability which would also justify a deprivation of liberty in itself DATE a point which is challenged by the appellants DATE and whether procedural rules have allegedly been breached in connection with this ground of detention , are matters which do not need to be examined , particularly as the appellants have been unsuccessful in their appeal against the [ applicant 's ] detention for serious neglect . ”

On DATE ORG lifted the applicant 's placement order as she had agreed to reside in the nursing home of her own free will .

Articles CARDINALa et seq . of the NORP Civil Code concern the withdrawal of liberty on grounds of welfare assistance ( fürsorgerische GPE ) . Article ORG provides :

“ An elderly or incapacitated person may be placed or retained in a suitable institution on account of mental illness , mental disability , alcoholism , other addictions or serious neglect , if the person can not otherwise be afforded the necessary personal care .

In this context , account must be taken of the burden which the person places on his or her environment .

The person concerned must be released as soon as the situation permits . ”

Article CARDINALe , which lays down the procedure in such cases , provides that “ in the case of mentally ill persons a decision can only be taken on the basis of an expert opinion ” .

The Deprivation of Liberty on Grounds of Welfare Assistance Act of the GPE of GPE implements ORG et seq . of LAW . Sections CARDINAL et seq . of the LAW concern “ measures without deprivation of liberty ” . Section CARDINAL provides that ORG ( LANGUAGE - behörde ) shall secure the necessary personal assistance for persons who put themselves or others in danger on account of mental illness , mental disability , alcoholism , other addictions or serious neglect . Under LAW , ORG may order care measures if guardianship measures do not suffice ; such measures may be renewed after DATE and standard social - work procedures are to be followed . Sections CARDINAL et seq . concern the “ deprivation of liberty on grounds of welfare assistance ” . Section CARDINAL mentions , inter alia , the institutions in which such persons may be placed , namely a psychiatric clinic , a therapeutic home or a nursing home . Section CARDINAL mentions the competent decision - making bodies , in particular ORG .


No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

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

The applicants used to go to the village of ORG ( now PERSON ) , LOC , GPE , to visit PERSON ( the applicants’ mother and grandmother respectively ) . They had a long - standing conflict with PERSON ’s neighbour PERSON in connection with the use of their neighbouring plots of land . On several occasions the applicants sought institution of criminal proceedings against S. , without success .

On CARDINAL of the applicants’ visits to the village , on DATE at TIME , CARDINAL armed men wearing GPE masks burst into ORG house , CARDINAL of them wearing jackets similar to those used by the police . They threatened and beat up PERSON and the applicants , then searched the house and seized a camera which the applicants allegedly used to carry for “ making a record of the danger posed by PERSON

On CARDINAL DATE the applicants went to the ORG ( PERSON центральная районная больница ) where the first applicant was diagnosed with an injury to the thoracic cage and lumbar contusion , and the second applicant with contusion of the scalp . The nurse on duty at FAC contacted the ORG of the Interior ( ORG Приволжского района ) .

On DATE the investigation team went to examine the scene of the incident . The applicants and PERSON were questioned on the circumstances of the incident .

Upon their return to GPE , on DATE the applicants on their own initiative underwent an examination by a forensic medical expert and were diagnosed with multiple abrasions and bruises on their faces and bodies caused by a blunt hard object possibly on CARDINAL DATE and not resulting in any damage to health ( medical certificates nos . CARDINAL and CARDINAL ) .

On DATE chief district police officer PERSON . of the ORG of the ORG decided not to institute criminal proceedings , for lack of evidence of a crime .

On DATE the first applicant complained to ORG that she and her son had been assaulted on DATE . She further claimed that they had been threatened that they would be killed if they continued to make complaints against S. , and that they would have to pay MONEY ( RUB ) for each of their visits to the village .

On DATE the ORG , PERSON , quashed the decision of CARDINAL DATE not to institute criminal proceedings . The prosecutor noted that the inquiry had been held only in respect of PERSON , that it was necessary to question the doctors who had examined the applicants on CARDINAL DATE and to question PERSON ’s neighbours . The material of the inquiry was returned to ORG of the ORG for an additional examination . It appears that subsequently criminal proceedings were instituted against police officer PERSON . on suspicion of having forged the ORG signatures during the investigation leading to the decision of CARDINAL DATE . The outcome of these proceedings remains unknown .

On DATE the first applicant again addressed ORG complaining about lack of action in the case and expressing her distrust against ORG and ORG of the ORG .

On DATE the ORG , PERSON , instituted criminal proceedings under LAW of LAW ( “ Beatings ” ) . The investigation department of ORG of the ORG was charged with the preliminary investigation of the case .

DATE and DATE an investigator questioned the applicants , PERSON , and the applicants’ neighbours GPE . T. , An . T. and S. The applicants were questioned at ORG of the Interior in GPE ( СУ при ORG г. ORG ) . They submitted that the CARDINAL armed perpetrators wearing police jackets resembled district police officers PERSON . and As . of the ORG of the ORG .

On DATE the investigation was suspended by investigator PERSON . of the investigation department of ORG of the ORG due to the impossibility of identifying the alleged perpetrators .

On DATE ORG quashed the above decision due to incompleteness of the investigation . The prosecutor noted the necessity to question PERSON ’s relatives on the issue of his conflict with the first applicant , to verify the version of the attack on the applicants by PERSON ’s relatives , nephews or acquaintances from ORG of the ORG , GPE and ORG of the Interior , to establish whether S. kept bees and had in his possession GPE masks , and whether he could have borrowed the masks from somebody else . The prosecutor noted the necessity to carry out an investigative experiment in order to find out whether the applicants could have seen as they asserted the individual features of the assailants behind the GPE masks , to question police officers PERSON . and As . , to carry out confrontations between the above police officers and the applicants and identification parade with participation of the above police officers and PERSON prosecutor further noted the necessity to eliminate contradictions in the statements of the applicants as regards the date of their visit to the ORG , to appoint the applicants’ forensic medical examination , to question all medical staff who examined the applicants at the ORG , to enquire on individual characteristics of all the participants on the case , to widen the circle of witnesses and to carry out other investigative actions necessary for a comprehensive investigation .

On DATE the investigation was again suspended by investigator PERSON . due to the impossibility of identifying the alleged perpetrators .

On DATE the ORG quashed the above decision , noting the failure of the investigator to comply with the instructions of the prosecutor outlined in the decision of DATE and to carry out any of the investigating actions mentioned therein .

DATE and CARDINAL DATE the investigator questioned PERSON , witnesses PERSON acquaintance ) , PERSON S. ’s nephew ) and PERSON ( S. ’s wife ) , chief district police officer PERSON . , police officers PERSON . and As . and the doctor who had been on duty at the ORG on CARDINAL DATE . The applicants were requested to appear at the ORG of the ORG for participation in confrontations and identification parades . However , they informed the investigator about their unwillingness to appear , relying on the death threats they had received during the incident of CARDINAL DATE .

On DATE the investigation was for the third time suspended by investigator PERSON . due to the impossibility of identifying the alleged perpetrators .

On DATE the ORG quashed the above decision and the criminal case was referred back to the investigation department of ORG of the ORG for additional investigation . The prosecutor instructed the investigator to join to the case - file material the results of the applicants’ forensic medical examination , to carry out a series of confrontations and identification parades with the applicants’ participation , and to study the issue of the applicants’ mental health ( no copy of the relevant decision was made available to ORG ) .

On DATE the investigation was for the fourth time suspended due to the impossibility of identifying the alleged perpetrators .

On DATE the Prosecutor of ORG quashed the above decision and ordered an additional investigation . He noted the failure of the investigator to comply with the instructions of the district prosecutor and the fact that the investigation had taken on a protracted character .

On DATE the applicants were questioned as witnesses at the investigation department of the NORP ORG of the Interior in GPE . They refused to make any statements , explaining that first of all they considered themselves victims of PERSON ’s unlawful behaviour and not of the beatings , and that only when they received an official reply in connection with the former would they agree to make any submissions regarding the beatings . The applicants refused to sign the decision by which they were granted victim status in the proceedings , to hand to the investigator the technical documents of the camera allegedly seized from them on CARDINAL DATE and to provide the investigation with samples of their signatures which were necessary to check the authenticity of the signatures appearing on the records of their initial statements of CARDINAL DATE . They further refused participating in any investigative actions at the ORG of the ORG .

Subsequently , DATE and DATE the investigation was suspended on CARDINAL occasions due to the impossibility of identifying the alleged perpetrators , and was subsequently resumed by the prosecutor with instructions to carry out additional investigations . On CARDINAL occasions during this period ( on DATE and DATE ) the proceedings were stayed due to the expiry of the procedural time - limit for prosecution , and later resumed ( on CARDINAL DATE and DATE ) . During this period the applicants were on several occasions requested to appear at the ORG of the ORG for participating in a series of confrontations and identification parades , to no avail .

On DATE investigator L. of the investigation department of the ORG of the ORG discontinued the proceedings due to the expiration of the procedural time - limit for criminal prosecution .

On DATE , however , the deputy head of the chief investigation department of PERSON quashed the above decision and resumed the investigation . The case file contains no further information about the results of the additional investigation , if any .

LAW ( “ the Code ” ) in force as from DATE provides in its LAW that a person who has suffered damage as a result of a crime is granted victim status and may take part in the criminal proceedings . During the criminal investigation , the victim may submit evidence and lodge applications . Once the investigation is completed , the victim has full access to the case file .

Articles CARDINAL and CARDINAL of the Code establish that prosecutors , investigators and inquiry bodies are obliged to consider applications and information about any crime committed or being prepared , and to take a decision on that information within DATE . In exceptional cases , this time - limit can be extended to DATE . The decision should be one of the following : ( a ) to institute criminal proceedings ; ( b ) to refuse to institute criminal proceedings ; or ( c ) to transmit the information to another competent authority .

According to LAW , the criminal investigation should not normally exceed DATE . This time - limit can be extended for DATE . If the matter is of extreme complexity , the investigation can be extended for DATE .

Article CARDINAL § CARDINAL of the LAW states that the criminal investigation can be suspended if the alleged perpetrator has not been identified .

Article CARDINAL of the Code provides that in order to terminate the proceedings the investigator should adopt a reasoned decision with a statement of the substance of the case and the reasons for its termination . A copy of the decision to terminate the proceedings should be forwarded by the investigator to the prosecutor . The investigator should also notify the victim and the complainant in writing of the termination of the proceedings .

According to LAW , the prosecutor can reverse the decision of the investigator and reopen the proceedings . The proceedings can be re - opened until the time - limit for holding a person criminally responsible expires .

Under LAW , the prosecutor is responsible for general supervision of the investigation . In particular , the prosecutor can order that specific investigative activities be carried out , transfer the case from one investigator to another , or reverse unlawful and unsubstantiated decisions taken by investigators and inquiry bodies .


The applicant is a NORP citizen , born in DATE and living in GPE .

In DATE the applicant , then aged CARDINAL , moved , together with his mother , to the privately owned flat in GPE he still occupies . The applicant and his mother were tenants and in possession of the flat on the basis of a lease between the applicant 's mother and the owner . In DATE the flat in question was nationalised , but DATE , in DATE , returned to the previous owner . The applicant and his mother continued to live in the flat , and in DATE the owner of the flat leased the flat to the applicant 's mother . After the mother 's death in DATE , the applicant prolonged the lease under his name .

On DATE , the ORG enacted ORG ( Zakon o prodaji stanova na kojima postoji stanarsko pravo ) and on DATE , LAW ( Zakon o najmu stanova ) . While the first one regulates the sale of publicly - owned flats previously let under a specially protected tenancy , the second regulates the conditions of leasing privately - owned flats , including those previously let under a specially protected tenancy .

The applicant , together with CARDINAL other applicants , lodged a constitutional complaint with ORG ( Ustavni sud PERSON ) , claiming that certain provisions of LAW and ORG violated the constitutional guarantees of the right to enjoy their possessions , the respect and protection for family life and discriminated against former holders of specially protected tenancies of privately - owned flats .

ORG ruled on DATE , and its decision was published in ORG ( ORG novine ) . The ORG quashed several provisions of LAW and dismissed the request to examine the constitutionality of ORG . As to LAW , the ORG quashed LAW , which obliged an owner of a flat let for an unlimited period of time to provide a lessee with another flat in adequate condition before cancelling the lease , if the owner intended to live in the flat himself or intended to install in the flat his children , parents or his dependants . ORG also quashed LAW , point CARDINAL , which excluded from the right to “ protected rent ” a lessee who had ceased to use the flat during DATE preceding the enactment of the LAW in question . Furthermore , the ORG quashed ORG DATE and CARDINAL § CARDINAL . Article CARDINAL restricted the lessor 's right to terminate the lease of a lessee who does not pay the rent and charges , and is over DATE of age or receiving social security benefits , only to cases where the municipality provides such a lessee with another adequate flat with a right to “ protected rent ” in an amount affordable to the lessee . LAW provided in substance the same as the above - mentioned LAW § CARDINAL .

B. Relevant domestic law before amendments by ORG

The Specially Protected Tenancies ( Sale to Occupier ) Act regulates the conditions of sale of flats let under specially protected tenancies . In general , the LAW entitles the holder of a specially protected tenancy on a publicly - owned flat to purchase it under favourable conditions of sale . However , the LAW excludes from such favourable treatment the holders of specially protected tenancies on most privately - owned flats .

The provisions of the LAW challenged by the applicant before ORG provide as follows .

Article CARDINAL § CARDINAL point QUANTITY provides , inter alia , that the LAW does not concern privately - owned flats let under specially protected tenancies .

Article CARDINAL provides that where the tenant of a publicly - owned flat has not applied to purchase it under LAW , the tenant of any privately - owned flat may lodge a request to buy it . Furthermore , this provision establishes the criteria for priority in the purchase of such flats .

Article CARDINAL regulates the spending of the funds collected through the sale of flats let under specially protected tenancies . It requires PERCENT on such funds to be used , inter alia , to provide flats for the former holders of specially protected tenancies of privately owned - flats , while PERCENT of the funds must be used to help providing flats for families with CARDINAL or more children . If the funds originate from the sale of flats in culturally protected buildings , PERCENT of those funds must be used for the maintenance and reconstruction of such buildings while the rest is to be used according to the above mentioned criteria .

DATE provides that the private owners of rented flats may , within DATE of the LAW 's enactment , sell their flats to the municipality . The municipality is under an obligation to purchase such a flat if the tenant undertakes to repurchase the flat from the municipality . The price of such a flat will be fixed according to the provisions for determining prices of publicly - owned flats let under specially protected tenancies .

LAW in general regulates the legal relationship between lessee and lessor in regard to the lease of flats . It recognises a special category of lessees , those who were previously holders of specially protected tenancies on privately - owned flats . Such a category is , according to the LAW , subject to a number of protections , such as an obligation for the owners to contract a lease for an unlimited period of time , the payment of a so called “ protected rent ” , the amount of which is to be prescribed by the ORG , and strictly limited reasons for termination of the lease . This LAW abolishes the specially protected tenancy as such .

Article CARDINAL § CARDINAL provides that the criteria for establishing the amount of “ protected rent ” are the condition of the flat in question , expenses for maintenance of the building and the lessee 's financial situation .

DATE provides that , by enactment of the LAW in question , specially protected tenancies cease to exist and the former holders of specially protected tenancies become lessees .

DATE provides that the former holder of a specially protected tenancy and the owner of the flat have to take out a lease for an unlimited period of time , and the lessee is entitled to pay the so - called “ protected rent ” , except where the lessee is using a part of the flat for some business - related activity ; or where the lessee is the owner of an inhabitable house or flat ; or where the flat has not been used by the lessee or any members of his family , during DATE preceding the entry into force of LAW , unless the owner had permitted their absence .

Article CARDINAL provides that an owner is not obliged to lease a flat to a person who is renting CARDINAL flats . In that case the lessee is entitled to choose which flat he wants to keep as a lessee .

Article CARDINAL obliges the owner to inform a lessee entitled to the “ protected rent ” that he is the owner of the flat , as well as of his personal address , within DATE of the LAW 's entry into force . Furthermore , the former holder of a specially protected tenancy is obliged to submit a request for a lease to the owner within DATE of the entry into force of LAW , or of a court 's decision recognising the right of the former holder of a specially protected tenancy to use the flat . If within a further period of DATE the owner does not sign the lease , the former holder of a specially protected tenancy may seek a court order imposing such an agreement . Such applications must be heard under the accellerated procedure . If the owner does not inform the former holder of a specially protected tenancy about his ownership , it is presumed that the owner is the person registered as such in the land registry .

DATE provides that before the lease is signed , the former holder of a specially protected tenancy is obliged to pay the rent in the amount that he was paying before the entry into force of LAW .

Article CARDINAL obliges a “ protected lessee ” to pay , besides “ protected rent ” , communal and other charges , if such charges are stipulated in the lease .

Article CARDINAL provides that if the amount of the “ protected rent ” is changed , the lessee is obliged to pay this new rent , without a change of the relevant provision in the lease being necessary .

Article CARDINAL provides that the names of family members sharing the same household as the former holder of a specially protected tenancy will be noted in the lease .

Article CARDINAL transfers the legal position of a lessee to the persons referred to in the previous paragraph , in the event of the lessee 's death or relinquishment of the flat . The lessor is obliged to sign a new lease with such a person contracting a “ protected rent ” .

DATE provides that the lessor may terminate the lease of a lessee in receipt of social security benefits or older than DATE of age , if such a person does not pay the rent or other charges , only where a municipality provides the lessee with another appropriate flat with a “ protected rent ” .

DATE reiterates the basis on which a lessor may terminate the lease of a “ protected lessee ” , the conditions being : if the lessee does not pay the rent and charges ; if the lessee sublets the flat or part of it , without permission from the lessor ; if the lessee or other tenants in the flat disturb other tenants in the building ; if some other person , not noted in the lease , lives in the flat longer than DATE , without permission from the lessor , except where that person is a spouse , child or parent of the lessee or of the other legal tenants in the flat , or a dependant of the lessee or a person on whom the lessee is dependent if the lessee or other legal tenants do not use the flat as their home , but for other purposes ; if the lessor intends to move into the flat himself or install his children , parents or dependants there ; if the lessor does not have another flat and is entitled to social security benefits or is more than DATE of age . If the lessor intends to move into the flat , he is obliged to provide the lessee with another inhabitable and appropriate flat of at least equivalent quality . If the lessor has no other flat to live in , then the municipality is obliged to provide the lessee with another appropriate flat unless he owns another inhabitable and appropriate flat in the same municipality or town .

Article CARDINAL provides that an appropriate apartment is one that provides CARDINAL room for each person , but the number of the rooms shall not exceed the number of the rooms in the previous flat . The new apartment has to be in the same municipality or town .

Article CARDINAL enables persons who have acquired the right to purchase a flat pursuant to ORG , but for certain reasons have not been able to exercise that right , to purchase a flat until the expiration dates laid down by that LAW .

Article CARDINAL obliges a lessor to sign a lease with a person who has purchased the flat under ORG , where the sale has been terminated or annulled .

Article CARDINAL obliges a lessor who intends to sell a flat , to offer the flat for sale to the lessee .

DATE invests a lessee who was not notified of the lessor 's intention to sell the flat with a right to apply for a judgment declaring the sale null and void and to purchase the flat under the same conditions .

Article CARDINAL invests a protected lessee with a right to occupy the parts of a flat abandoned by CARDINAL or more other protected lessees in the same flat , unless the lessor decides to use the abandoned parts of the flat himself .

Article CARDINAL provides that any person who was a tenant before the entry into force of LAW remains a tenant , whoever the lessor or lessee of that flat may be .

Article CARDINAL invests the former holder of a specially protected tenancy on a flat in private ownership with a right to purchase it if the owner of the flat has already purchased some other flat under ORG and if the former holder of a specially protected tenancy does not own some other inhabitable flat or house .


Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly)

Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;Khanlar Hajiyev;Loukis Loucaides;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE .

On DATE the applicant , who is a member of parliament for ORG , notified ORG ) under LAW ( Versammlungsgesetz ) that on DATE , DATE , from CARDINAL a.m. until TIME , he would be holding a meeting at the GPE municipal cemetery in front of the war memorial . He noted that the meeting would coincide with the gathering of ORG ( ORG ) , which he considered to be unlawful .

The purpose of the meeting was to be to commemorate the GPE NORP killed by the ORG during the Second World War . The applicant expected CARDINAL participants , who would carry commemorative messages in their hands and attached to their clothes . The applicant stated that no other means of expression ( such as chanting or banners ) which might offend piety or undermine public order would be used .

On DATE ORG , relying on section CARDINAL of LAW and on LAW , prohibited the meeting on the ground that it would endanger public order and security .

The authority noted that GPE , also a member of parliament for ORG , had informed ORG of the allegedly illegal assembly of ORG in memory of the ORG soldiers killed in the Second World War which was to be held at the same time and place , but had refused to give an undertaking that the proposed meeting in memory of the murdered GPE NORP would not disrupt that gathering .

NORP ORG noted that ORG was a registered association . Like a number of other organisations , it traditionally held a commemoration ceremony at the GPE municipal cemetery on DATE . Such commemorations qualified as popular ceremonies within the meaning of CARDINAL of LAW and thus did not require authorisation . The disruption of this and other commemoration ceremonies was likely to offend the religious feelings of members of the public visiting the cemetery and would indisputably be regarded as disrespectful towards the dead soldiers of both world wars and thus as an unbearable provocation . Accordingly , there was a risk of protests by visitors to the cemetery which could degenerate into open conflict between them and those participating in the assembly .

ORG ordered that any remedies used against its decision should not have suspensive effect . Accordingly , the demonstration could not take place .

On DATE ORG ) dismissed an appeal by the applicant .

It noted that ORG was a registered association whose members were mainly former members of the ORG . For DATE they had commemorated ORG soldiers killed in the Second World War by gathering on DATE and laying a wreath in front of the war memorial at the GPE municipal cemetery . In DATE , a number of organisations had organised protest campaigns with the aim of disrupting the Comradeship IV commemoration ceremony . These protests had led to vehement discussions with members of ORG and other visitors to the cemetery and had required intervention by the police .

ORG , referring to the submissions of GPE , found that the assembly planned by the applicant was also aimed at a confrontation with ORG and concluded that its prohibition was necessary for the maintenance of public order and for the protection of the Comradeship IV commemoration ceremony .

On DATE ORG Verfassungsgerichtshof ) dismissed a complaint by the applicant alleging violations of his rights to freedom of assembly , freedom of expression , freedom of religion and non - discrimination .

The Constitutional Court observed that the authorities deciding on the prohibition of an assembly had to weigh the applicant ’s interest in holding the meeting against the public interests enumerated in LAW . It went on to say that the prohibition of the proposed meeting would not be justified if its sole purpose were to protect the LAW commemoration ceremony and expressed doubts as to the authorities’ assessment that the latter meeting was a popular ceremony within the meaning of section CARDINAL of LAW and therefore did not require authorisation . Nevertheless , the prohibition of the meeting proposed by the applicant was justified for other reasons .

The authorities had also had regard to the fact that the gathering of ORG had in DATE been the target of activities aimed at disrupting it which had caused considerable nuisance to other visitors of the cemetery and had each time required police intervention . The authorities had therefore correctly assumed that the prohibition of the assembly planned by the applicant was necessary to protect the general public against potential disturbances .

ORG added further considerations in support of that conclusion . It observed that DATE was an important religious holiday on which the population traditionally visited cemeteries in order to commemorate the dead . As a religious tradition , the commemoration of the dead was protected by LAW , which contained a positive obligation for the ORG to protect persons manifesting their religion against deliberate disturbance by others . Thus , the prohibition of the assembly in issue was necessary under LAW for the protection of the rights and freedoms of others . It followed that it did not violate any other LAW right relied on by the applicant .

NORP That decision was served on the applicant ’s counsel on DATE .

LAW DATE ( PERSON ) regulates the exercise of the right to freedom of assembly . Section CARDINAL(CARDINAL ) provides that any person intending to organise a public assembly or any assembly which is generally open to persons other than invited guests must give the authorities notice in writing CARDINAL in advance , indicating the purpose , place and time of the meeting .

Pursuant to section CARDINAL , certain gatherings such as public entertainment , popular ceremonies or religious processions do not fall within the scope of LAW .

Pursuant to section CARDINAL , the competent authority must prohibit any assembly which would contravene criminal law or endanger public order and security .