Violation of Art. 6-1;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

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

NORP The applicant company was established in DATE and has its seat in GPE .

In DATE the applicant company commenced proceedings against CARDINAL major companies , seeking the enforcement of financial claims against the companies through seizure of their shares and transfer of title to the shares to the applicant company .

The companies in question had been involved in arms production and had gone through a restructuring that resulted in a large number of job losses and a high rate of unemployment in the region . The relevant events therefore received media attention .

The judicial enforcement officer ( súdny exekútor ) , PERSON , who had been involved in the enforcement of the claims in issue , was charged with abuse of authority . A. was eventually acquitted of that charge by GPE ORG ( ORG súd ) on DATE . Criminal proceedings were also brought against other individuals .

Further details concerning the background can be found in the ORG 's judgment of DATE in the case of GPE v. GPE ( no . CARDINAL ) .

On DATE the applicant company petitioned ORG to enforce a claim for payment of an amount equivalent to MONEY ( ORG ) against PERSON , a private joint - stock company . A. subsequently sought judicial authorisation of the enforcement .

On DATE the President of ORG , C. , sitting as a single judge , authorised PERSON to carry out the enforcement proceedings against B.

NORP In the course of the enforcement proceedings , A. seized B. 's movable property and certain shares relating to PERSON attempted to sell the seized property at CARDINAL public auctions . As the auctions failed , the shares and movable property were transferred to the applicant company at PERCENT of their officially estimated value .

On DATE the applicant company requested that the enforcement proceedings be ended , as its claim had been satisfied by the above - mentioned award of property .

In a decision ( uznesenie ) of DATE , NORP , the newly appointed President of the ORG sitting as a single judge , ruled that the enforcement of the applicant company 's claim by means of selling the shares was improper ( neprípustná ) . At the same time , judge NORP discontinued the enforcement proceedings .

Judge NORP observed that the shares had been sold by way of a procedure that applied to movable property . However , as shares were not deemed to be movable property , a different procedure requiring special authorisation should have been used .

The CARDINAL - page decision was not subject to appeal .

The distribution of cases and organisation of work at ORG is regulated by a work schedule ( rozvrh práce ) .

The work schedule for ORG in DATE was drawn up in DATE by the then President of ORG , judge C. According to this work schedule , all enforcement proceedings – including the proceedings for the enforcement of the applicant company 's claim – were assigned to ORG Ninth Section , which was presided over by judge C. The work schedule provided that judge C. and judge NORP , who was at that time with ORG Seventh Section , were to substitute for each other if necessary .

A copy of the work schedule was sent to ORG for information on DATE .

On DATE judge NORP was appointed as President of ORG . He occupied that position until DATE .

On DATE judge NORP issued an amendment to the work schedule . With effect from CARDINAL March CARDINAL , new enforcement proceedings were to be distributed evenly among CARDINAL different sections of the court , including the Seventh Section . Enforcement proceedings that had originally been assigned to ORG were also to be reassigned and distributed evenly among the CARDINAL designated sections . The amendment was worded in general terms without identifying any specific proceedings .

A copy of the amended work schedule was sent to ORG for information on DATE .

On DATE judge NORP , in his capacity as President of ORG , issued a decree ( opatrenie ) reassigning the proceedings for the enforcement of the applicant company 's claim to himself .

In the CARDINAL - page decree , reference was made to section CARDINAL(CARDINAL ) and CARDINAL ) of ORG no . CARDINAL Coll . , as amended ) ( “ the Rules ” ) .

The decree formally stated that the reason for the reassignment was “ a change in the work schedule ” and that the reassignment was made “ in accordance with the system of substitution of judges fixed in the work schedule and for the purpose of ensuring the proper functioning of the court ” .

In the period DATE and DATE , a total number of CARDINAL cases were reassigned from ORG . Of the total , CARDINAL cases were reassigned to judge D 's section and CARDINAL , DATE , DATE , DATE , DATE and CARDINAL cases were reassigned to the remaining six Sections of the ORG respectively .

Further amendments to ORG work schedule were issued by judge NORP throughout DATE , taking effect on DATE , DATE , CARDINAL DATE and DATE . They were all notified to ORG . Under these amendments , judge NORP was in charge of CARDINAL in CARDINAL enforcement proceedings and also continued to stand in for judge PERSON ( on a mutual basis ) .

The applicant company lodged a complaint under LAW with ORG ( Ústavný súd ) .

It contended , inter alia , that its right to a hearing by a tribunal established by law had been violated by judge NORP 's assignation of the case to himself . The applicant company pointed to the fact that the case had been decided by judge NORP on DATE that it was reassigned to him . It also alleged that there had been frequent modifications to the work schedule of ORG in DATE which had rendered the process of assignment and reassignment of cases uncontrollable , thus leaving room for arbitrariness .

The applicant company also challenged the above - mentioned ruling declaring the enforcement proceedings improper .

On DATE ORG declared the part of the applicant company 's complaint concerning the reassignment of the case to judge NORP admissible under LAW . At the same time , it declared the remaining part of the complaint concerning the ruling on the merits inadmissible as manifestly ill - founded .

In a judgment ( nález ) of CARDINAL DATE , ORG held , by CARDINAL majority , that there had been no violation of the applicant company 's rights under LAW .

Having received extensive documentary evidence and having held a public hearing , the Constitutional Court established , inter alia , the facts summarised in paragraph CARDINAL above .

ORG found that the evidence available indicated that judge NORP had made the impugned decree of CARDINAL DATE in the context of modifications to the court 's work schedule for DATE , in the interests of an equal distribution of cases concerning enforcement proceedings , and in accordance with section CARDINAL(CARDINAL ) of the Rules .

The court further held that the fact that judge NORP decided the case on DATE that he had given the above - mentioned decree did not , as such , affect the legal framework within which the change in judges had been effected .

ORG concluded that the applicant company had not sufficiently substantiated its allegation that the case had been assigned to judge NORP in an unjustified manner .

The judge in the minority gave a dissenting opinion . He pointed to the fact that the work schedule of ORG had been modified several times in the course of DATE without any acceptable explanation . There was no indication that an objective and transparent method for the reassignment of cases had been established and applied . Moreover , during the relevant period no similar steps had been taken at ORG to redistribute cases in differing categories despite the far heavier case load in those other categories .

Article CARDINAL § CARDINAL provides that no one may be deprived of his or her lawfully appointed judge ( zákonný sudca ) . The jurisdiction of a court in a particular matter is to be established by law .

According to ORG , the right “ not to be deprived of his or her lawfully appointed judge ” pursuant to LAW is vested in each party to the proceedings ( as opposed to the judge ) ( decision of DATE in case no . II . ÚS CARDINAL ) .

ORG held in its judgment of CARDINAL DATE in case no . ORG CARDINAL/CARDINAL that the right “ not to be deprived of his or her lawfully appointed judge ” attaches to the person of the judge and not to a court . A ' lawfully appointed ' judge is one who , fulfilling the statutory requirements for being a judge , has been assigned to a case under the work schedule of the court concerned .

ORG has also held ( by a decision of DATE in case no . II . ÚS CARDINAL ) that the right of a person “ not to be deprived of his or her lawfully appointed judge ” can not be interpreted in so broad a manner as to pertain to a specific , individual judge .

The purpose of this constitutional right is therefore satisfied if an individual 's rights are decided upon by a judge who has been duly appointed to a court which has jurisdiction ratione loci and ratione materiae and is at the appropriate level of jurisdiction .

In reviewing the additional constituent elements of the notion of a “ lawfully appointed judge ” under LAW , ORG held that it is not only statutory provisions , in particular those of ORG , that are of relevance but above all the provisions of the LAW , chiefly LAW , which provides that everyone may claim his or her rights by way of a procedure established by law before an independent and impartial court ( judgment of DATE in case no . III . ÚS CARDINAL/CARDINAL ) .

ORG has also held ( in its judgments in cases nos . II . ÚS CARDINAL/CARDINAL , II . ÚS CARDINAL/CARDINAL and II . ÚS CARDINAL/CARDINAL ) that , in principle , a “ lawfully appointed judge ” is the judge assigned to a specific case under the work schedule of the court concerned . However , if there are circumstances justifying the reassignment of the case or of the entire agenda to a different judge for the reasons envisaged in sections CARDINAL ) and ( CARDINAL ) of the Rules , any newly assigned judge becomes a lawfully appointed judge . Such circumstances comprise , for example , the long - term absence of a judge , significant differences in workload among judges , or sudden events preventing a judge from taking specific steps in the proceedings .

In a judgment of DATE in case no . II . ÚS CARDINAL , ORG held that a president of a court must not use his discretion , contrary to the law , to take a case away from a lawfully appointed judge and assign it to another judge in order to accommodate one of the parties without providing a precise ground of justification for the reassignment .

The Rules were issued by the Minister of ORG . As then in force , they defined the internal rules of ORG and the discharge of tasks by those courts .

Section CARDINAL of the Rules governed courts ' work schedules , that is to say the distribution of cases among court divisions and judges .

Pursuant to paragraph CARDINAL of section CARDINAL , the distribution of work at courts was to be determined in a work schedule for a whole calendar year . The schedule of work was also to provide for the substitution of judges .

Under paragraph CARDINAL , where a judge was absent for a long period or where there were substantial differences in the workload of judges at the same court , the President of the court was given power to decide that a certain amount of work be transferred to a different division of the court .

Paragraph CARDINAL provided that , where a sudden event prevented a judge from carrying out individual acts in a case , the court 's president might charge a different judge to take the action required .

Under paragraph CARDINAL , a court 's president was to take the measures indicated in paragraphs CARDINAL and CARDINAL in accordance with the rules concerning the replacement of judges as defined in the work schedule , unless a different action was required with a view to ensuring the proper functioning of the court .

No further statutory rules on the status and creation of courts ' work schedules existed at the relevant time .

At the relevant time , the ORG administration of the judiciary was governed by PERSON no . CARDINAL/CARDINAL ORG . , as amended . Pursuant to section CARDINAL of the PERSON , the bodies charged with the ORG administration of the judiciary were ORG and the Presidents and Vice - presidents of the courts .

The ORG administration of ORG was carried out by ORG directly or through the Presidents of those courts ( section CARDINAL(CARDINAL ) ) .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych

NORP The applicant company , ORG ( Мале приватне підприємство “ ORG ” ) , was a NORP privately owned enterprise that was registered in GPE . On DATE its registration was annulled and it was struck off the ORG register of enterprises as it had been declared insolvent . It is represented before the ORG by Mr Tsytsey and Ms Sokolova , respectively , the applicant company ’s former director and sole owner ( “ the Director ” ) and the applicant company ’s former deputy director ( “ the Deputy Director ” ; hereinafter together DATE “ the Directors ” ) .

ORG ( “ the Government ” ) are represented by their Agent , PERSON .

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

On DATE ORG ( the “ Inspectorate ” ) ordered that the applicant company ’s accounting records for DATE be inspected for compliance with tax regulations . As a result of the inspection , held from CARDINAL to DATE , the ORG issued CARDINAL decisions : nos . CARDINAL of DATE and CARDINAL of DATE . On DATE the ORG found violations of the procedure for keeping incoming cash records and ordered the applicant company to pay a fiscal penalty in the amount of CARDINAL NORP hryvnyas ( ORG ) . On DATE it ordered the applicant company to pay in fiscal penalty of ORG CARDINAL and UAH CARDINAL .

On DATE and CARDINAL DATE ORG upheld the decisions taken in the context of the tax inspection . On CARDINAL and CARDINAL May and CARDINAL DATE ORG of GPE rejected similar complaints as unsubstantiated .

On DATE the Zakarpatsky ORG ( ORG ; the “ Revision Service ” ) ordered the applicant company to pay ORG MONEY as a penalty for infringement of financial regulations .

On DATE , DATE and DATE the Zakarpatsky ORG ( “ the LAW ” ) declared null and void , respectively :

- the orders of the ORG of DATE and CARDINAL DATE ( decision upheld on DATE by the President of ORG ) ;

- the order of the tax authorities for the payment of ORG MONEY ;

- the order of DATE of ORG .

On DATE ORG ( “ the ORG ” ) initiated criminal proceedings against the Directors , suspecting them of being involved in tax evasion . Subsequently , criminal proceedings were initiated on other charges against them - fraud committed by an official of the company , tax evasion , financial fraud , corruption and misappropriation of company property .

On DATE ORG remitted the indictment against the Director to ORG for additional investigation , having noted that the investigation was incomplete and did not comply with procedural regulations . The remittal was upheld by ORG on DATE . It also partly revised it , in relation to the alleged absence of unlawful intention on the part of the accused to evade tax , and confirmed that the charges had not been duly corroborated . The Directors signed an undertaking not to abscond .

From DATE to DATE ORG and ORG ( “ ORG Office ” ) reopened and suspended investigations for various procedural reasons . The charges against the Directors were amended on several occasions .

On DATE the criminal investigation against the Directors in relation to tax evasion episodes was terminated as the fiscal sanctions imposed by the ORG had been declared null and void by ORG ( see paragraph CARDINAL above ) . New criminal proceedings were instituted in respect of forgery committed by an official of the company , which were joined to the original proceedings .

On DATE the prosecutor in charge of the case filed a new bill of indictment against the Deputy Director on charges including abuse of power , forgery committed by an official , tax evasion and embezzlement . On DATE the bill of indictment was lodged with ORG . The Director was indicted for forgery committed by an official , theft and financial fraud .

On DATE ORG remitted the case to ORG for additional investigation as it held , inter alia , that the investigation had failed to comply with LAW and the court ’s resolution of DATE . On DATE the remittal was upheld on appeal .

On DATE and DATE ORG filed new bills of indictment concerning the Directors and lodged them with ORG . In particular , the Deputy Director was charged with forgery committed by an official and abuse of power . The Director was charged with forgery committed by an official , abuse of power and financial fraud .

On DATE the case file , with the indictment against the Deputy Director on charges of financial fraud , abuse of power and forgery committed by an official , and the indictment against the Director on charges of financial fraud , abuse of power and forgery committed by an official , was referred to ORG for preliminary examination .

On DATE ORG , in the presence of the accused , their CARDINAL representatives and the prosecutor , found the Directors guilty of document forgery and financial fraud . The ORG decided not to convict them as the limitation period had expired , acquitted them of the remainder of the charges and ordered “ the return of the material evidence as relevant ” . No appeal was lodged against this judgment and it became final .

On CARDINAL and DATE the ORG and Assistant Prosecutor , respectively ordered the seizure of the banking documents , main record book , cash registers , invoices , receipts , agreements and other accounting documents of the applicant company for the period from DATE to CARDINAL DATE and the accounting records of the applicant company for DATE . These documents were added to the case file .

On DATE the ORG requested the ORG PERSON ( “ Z.M. ” ) to store QUANTITY of diesel bought by the applicant company from a private company , ORG ORG ( “ GPE ” ) . On DATE the ORG informed the applicant company of the transfer of these products to GPE as they had not been paid for .

On DATE ORG ( the “ Assistant Prosecutor ” ) ordered the attachment of all of the applicant company ’s and the Director ’s property , in order to secure compensation for damage allegedly caused by their unlawful activities , which amounted to ORG CARDINAL . On CARDINAL and DATE the ORG seized petroleum products belonging to the applicant company from CARDINAL different locations :

- petrol station ORG MPP Petrol , the village of GPE ;

- petrol station no . CARDINAL , GPE ( ORG MPP Petrol ) ;

- petrol store of the MP “ ORG ” ( a private enterprise ) .

On DATE the ORG attached diesel , petroleum and motor oil stored with PERSON ( The applicant company alleged that the petrol stations in GPE and GPE , where the products were stored , were in a “ natural disaster zone ” and had been destroyed by natural disaster , as allegedly stated in the notice issued by the Zakarpatsky ORG of DATE . The applicant company mentioned that products stored at MP ORG had also disappeared ) .

On DATE ORG ordered a search of the private joint household of the Directors . The search resulted in the seizure of documents relating to the activities of the applicant company .

On DATE GPE and the private company ORG “ APPEK ” were declared “ civil plaintiffs ” in the criminal proceedings . On DATE ORG made a report on the transfer of diesel , petroleum and oil to storage by GPE ( GPE had previously requested ORG to declare it a “ civil plaintiff ” and to order a transfer of petroleum products stored at PERSON ’s premises to it , allegedly for recovery of the applicant company ’s debts for petroleum supplied in DATE . ) The applicant company and GPE signed the decisions on transfer of these products to GPE They were transferred to this company under bills of transfer , with the application of GPE provisions traditionally used in commercial activities for contracts on sale of goods ( see paragraph CARDINAL below ) . ( Later , on DATE , at GPE ’s request , the applicant company signed a verification of debt record , which confirmed the applicant company ’s debts to GPE of ORG CARDINAL,CARDINAL.CARDINAL . )

On DATE and CARDINAL DATE the ORG ORG ( a private company ) and ORG were also declared civil plaintiffs .

On DATE and CARDINAL DATE ORG allowed the Deputy Director ’s requests for access to the accounting documents seized and for an additional forensic economic examination in the case . He also ruled that the documents seized , including accounting documents for DATE , were material evidence and a part of the criminal case file .

On a number of occasions throughout the criminal investigation , and in particular from DATE , ORG and ORG informed the applicant company that :

- the documents seized could not be returned as they were part of the case file , but that the Directors were not prohibited from copying them ;

- the petroleum products seized had been transferred to GPE for storage ;

- it was not possible to terminate the criminal proceedings ;

- it was not possible to lift the attachment on property and documents , including accounting records , and return them , as they were material evidence .

On DATE and DATE and CARDINAL , DATE and DATE the applicant company lodged several complaints with ORG , ORG , ORG and ORG , of unlawful seizure of accountancy documents and requesting their return . In particular , it made unsuccessful requests to :

- have the documents returned for completion as some formal information was missing from them , such as signatures , seals and so on ;

- be recognised as a “ civil plaintiff ” in the criminal investigation and to have the prosecutor ’s office which had seized documents designated a “ respondent ” .

On DATE and DATE ORG stated that the ORG access to the accounting records was not limited as they had been able to familiarise themselves with the case file from CARDINAL to DATE .

On DATE and DATE the applicant company unsuccessfully requested ORG to annul the attachment of its property and the ORG private property .

On DATE ORG ordered the return of material evidence “ as relevant ” ( see paragraph CARDINAL above ) .

On DATE ORG returned the applicant company ’s claim of DATE , in which it had sought damages and loss of profit from the ORG as “ not lodged ” because of its failure to pay the court fee ( amount claimed ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL ) . It also ruled that the company had failed to pursue a pre - arbitration settlement procedure .

On DATE the applicant company lodged a request for pre - arbitration settlement with the ORG , demanding damages and compensation for loss of profit in the amount mentioned in DATE above . On DATE the ORG disagreed with the request for settlement , finding it unsubstantiated , both as to form and content .

On DATE the applicant company lodged its claims with ORG again and requested it to declare unlawful the verbatim reports on the seizure of documents and attachment of property by the ORG on CARDINAL and DATE ( see paragraphs CARDINAL and CARDINAL above ) .

On DATE ORG refused to examine the applicant company ’s claims as it had failed to pay the court fee for bringing the claims and thus had not complied with LAW ( see paragraph CARDINAL below ) . It also stated , referring to the recommendation of the Presidium of ORG of DATE , that these claims should be resolved in accordance with LAW ( see paragraph CARDINAL below ) .

On DATE the applicant company complained to ORG that the tax authorities’ acts were unlawful and requested the court to annul the ORG ’s reports of CARDINAL and DATE ( see paragraphs CARDINAL and CARDINAL above ) . On DATE the court dismissed the applicant company ’s complaint without examining it on the merits , finding that it had no jurisdiction to deal with it . The court indicated that complaints concerning criminal proceedings were to be examined by the courts of general jurisdiction , pursuant to ORG and CARDINAL - CARDINAL of the Code of Criminal Procedure ( see paragraph DATE below ) .

The applicant company appealed in cassation to ORG . The first - instance court informed the applicant company that a hearing was scheduled on DATE and ruled that the presence of its representative was not obligatory .

On DATE the regional court , with no parties present and in a preliminary hearing , returned the appeal in cassation to the first - instance court without examining it . The court ruled that the Deputy Director had failed to provide a letter of authority and the case file was returned to the first instance court .

In DATE the applicant company lodged a complaint with ORG , contending that the appeal in cassation had been properly lodged . In a letter of CARDINAL DATE the Acting President of ORG stated that the letter of authority had been sent to ORG in order to be appended to the case file . He stated that the returned case file had had no letter of authority attached to it and requested a new letter of authority .

The parties have provided no information as to the outcome of these proceedings .

On DATE and DATE ORG refused to examine CARDINAL claims against GPE lodged by the applicant company for annulment of the decision on the transfer of petroleum products from it to GPE as they were beyond the jurisdiction of the arbitration courts ( LAW . In particular , the “ transfer decisions ” were not “ normative acts ” within the meaning of this provision ( see paragraph CARDINAL below ) .

On DATE ORG refused to examine CARDINAL new claims by the applicant company against GPE by which it sought annulment of the transfer decisions mentioned above as the company had no legal capacity after having been declared insolvent : only the company ’s liquidator could act on its behalf .

On DATE ORG , in a different composition , left the applicant company ’s claims unexamined as they were unsubstantiated , meaning that the copy of the “ transfer decision ” did not provide evidence of a legal act , nor could it lead to a finding of the existence of a legal act .

On DATE the applicant lodged a claim with ORG against the ORG seeking damages of ORG CARDINAL for the ORG ’s unlawful actions .

On DATE ORG returned this claim without having examined it , under LAW of LAW ( see paragraph CARDINAL below ) , as the applicant company had failed to provide corroborating evidence in support of its claims for loss of income and to prove a causal link between the fiscal sanction and the damage alleged .

In DATE the applicant company lodged its claims again and on DATE ORG returned this claim for the same reasons as on DATE ( see paragraph CARDINAL above ) .

On DATE and DATE PERSON informed the applicant company that it had been instructed by GPE to sell the petroleum products and that the seized petroleum products had been transferred to that company .

On DATE the applicant instituted proceedings in ORG against GPE , seeking the return of the petroleum products or reimbursement of their cost . On DATE ORG returned these claims as not having been lodged , without having examined them on the merits , as the applicant company had failed to substantiate the sum claimed and had not paid the court fee .

On DATE the Directors complained to ORG against ORG , seeking a declaration that the actions of ORG were unlawful and requesting compensation for pecuniary damage . The outcome of these proceedings , which apparently were not pursued , is unknown .

On DATE the ORG lodged an application with ORG seeking to declare the applicant company insolvent .

DATE . On DATE ORG assumed jurisdiction over the case and instituted liquidation proceedings against the company , prohibiting the sale of its assets .

On DATE ORG requested the parties to provide it with additional information on the case and ordered that the applicant company should be managed by an insolvency officer , D.M.A. , ( арбітражний керуючий ) who should analyse the company ’s finances , and attach its property and prohibit its sale . The court also prohibited enforcement of any claims of creditors against the company , except those allowed by section CARDINAL(CARDINAL ) of LAW ( salary- and social - related payments ) .

On DATE issued an order prohibiting any actions with regard to the company or its assets .

On DATE ORG , in the presence of the Deputy Director , representatives of the applicant company ’s creditors and D.M.A. , ordered the ORG to publish information on the initiation of the liquidation proceedings . D.M.A. was ordered to draw up a list of creditors . The next hearing was scheduled for DATE .

On DATE ORG , in the presence of the Deputy Director , approved the list of the company ’s creditors , consisting of the ORG , GPE and ORG . It approved the list of their financial claims and ordered the creditors to meet on DATE . D.M.A. had to inform the court of the results of the meeting and to provide the court with a final register of PERSON claims . In particular , the court noted that the claims of GPE amounted to ORG CARDINAL,CARDINAL.CARDINAL and had not been challenged by the Deputy Director in the course of the hearing .

On DATE ORG declared the applicant company insolvent and initiated its liquidation , which had to be completed within DATE . D.M.A. was appointed as the company ’s liquidator and was ordered to publish information about the applicant company ’s insolvency , to form a liquidation commission and to finalise the liquidation procedure . The applicant company had to provide the liquidator with all the documents , official seals and other property belonging to it by DATE . The liquidator had to provide a liquidation balance to the court by CARDINAL DATE .

On DATE the Directors unsuccessfully requested ORG to review and quash its own ruling of DATE .

On DATE the Directors unsuccessfully requested ORG to return the accounting records , which from their point of view were necessary for finalising the liquidation , and to lift the attachment of the petroleum products so as to have them included in the register of the liquidated company ’s property . ( According to the applicant this request remained unanswered . )

On DATE the Directors instituted proceedings against the liquidator in the Zakarpatsky Regional Commercial Court ( formerly ORG ; hereafter “ ORG ” ) seeking to declare unlawful his failure to include the seized petroleum products in the register .

By a ruling of DATE , which apparently was adopted on DATE , ORG approved the liquidation balance and the liquidator ’s report . The court ruled that the company should be liquidated , that the relevant ORG authorities and the company ’s management should be informed of the court ’s ruling and the termination of the proceedings .

On DATE the Directors appealed against the ruling of CARDINAL DATE to the L’viv ORG . They also requested that the ruling of DATE be quashed and the time - limit for lodging an appeal be extended , alleging that they had received that ruling late .

On DATE the L’viv ORG , composed of CARDINAL judges , dismissed the applicant company ’s request for the extension of the time - limit as it had been lodged outside the statutory time - limit of DATE under LAW . It also returned the appeal of DATE to the applicant company , without examining it on the merits .

On DATE the applicant company appealed in cassation to ORG , seeking to have declared null and void the rulings of DATE and DATE . In particular , it alleged that the liquidator had failed to include the property seized by the prosecutor ’s office in the liquidation report . The company noted a technical mistake in DATE of the ruling dated DATE , which in fact had been adopted on DATE . It alleged that a request for extension of the time - limit had been lodged with ORG .

On DATE the Higher Commercial Court informed the applicant company that the appeal in cassation had been wrongly lodged , as it should have been sent through the first instance commercial court .

On DATE the ORG refused to examine the applicant company ’s appeal in cassation as it had failed to comply with the requirements of LAW of LAW in that the company had failed to pay the court fee for lodging the appeal ( see paragraphs DATE below ) .

On DATE ORG dismissed the applicant company ’s appeal in cassation as it had not complied with the DATE time - limit envisaged by LAW ( see paragraph CARDINAL below ) . The ORG also informed the applicant company that no request for extension of this time - limit had been lodged .

On DATE ORG remitted the applicant company ’s appeal , without having examined it , to ORG and eventually it was sent to the first - instance commercial court .

On DATE the Higher Commercial Court again dismissed the applicant ’s appeal in cassation as having been lodged out of time , finding that no request for extension had been lodged .

The applicant company alleged that it had lodged a request for extension of the time - limit , together with its appeal in cassation , with ORG after the ruling of DATE .

DATE . On DATE the Directors lodged compensation claims against the prosecution authorities with ORG . They sought UAH CARDINAL,CARDINAL,CARDINAL in pecuniary and non - pecuniary damage caused by the allegedly unlawful actions during the criminal investigation against them .

On DATE ORG left the aforementioned claims unexamined and returned them to the Directors , finding that they had not complied with the requirements of LAW . The claimants were asked to rectify these shortcomings before DATE . On DATE the court returned these claims unexamined , for failure to comply with the court ’s previous ruling .

The relevant provisions of the LAW read as follows :

“ Everyone shall have a right to compensation ... for losses sustained as a result of unlawful decisions , acts or omissions by public or municipal bodies or civil servants in the performance of their official duties . ”

By virtue of LAW everyone has the right to compensation for damage caused by unlawful actions by ORG authorities .

Section CARDINAL of the Enterprises Act envisages that private enterprises are commercial companies founded by private persons . The private enterprise has no distinct shareholding and particularised ownership of property , except if specified in the articles of its association , statute or other internal corporate regulations .

The private enterprise , in accordance with the Section CARDINAL of LAW , is an object of a free exercise of property rights envisaged for any kind of privately owned property . The ownership rights and the rights and legal obligations of a founder of a private enterprise can also be transferred to other private persons on the basis of an agreement ( this is confirmed in other normative acts and recommendations , such as the letter no . MONEY - CARDINAL/CARDINAL of DATE of ORG ; Resolution no . CARDINAL of ORG ) .

In accordance with LAW the owner of a private enterprise was not responsible for its legal obligations ( letter no . CARDINAL of CARDINAL DATE of ORG ) . The liability of an owner for debts of a private enterprise could only be established on the basis of its statute or articles of association or specific normative acts .

Section CARDINAL of LAW provides that the ORG must guarantee protection of NORP property rights . Seizure of funds and property belonging to enterprises is only allowed in situations provided for by the law . Also , a decision to pay compensation for damage caused to an enterprise by the infringement of its property rights by citizens , legal entities or ORG bodies must be based on a judgment of a court or court of arbitration .

Sections CARDINAL and CARDINAL of LAW stated that the private enterprise must , as all other legal entities , comply with the credit agreements and ORG tax and other payment obligations . A private enterprise that fails to comply with its financial obligations could be declared bankrupt in the course of ordinary insolvency proceedings and could be liquidated , as any other legal entity .

DATE . The relevant extracts from the Code can be found in Merit v. GPE , no . MONEY , DATE ( Relevant domestic law and practice ) .

Pursuant to LAW ( the conditions for storage of material evidence ) , material evidence must be stored until the judgment or decision terminating proceedings in the criminal case becomes final . Documents that are material evidence must be stored together with the case file and interested persons or organisations can receive copies of these documents on request . If there is a dispute as to the right of ownership of the material evidence , this evidence must be stored until the final judgment is given in civil proceedings . Material evidence which could be damaged by storage and which can not be returned to its owner must be transferred to ORG or “ cooperative organisations ” to be sold on . These organisations must , if necessary , return property similar to the material evidence sold or pay compensation for it in accordance with prices established by the ORG as pertaining at the time of return of that evidence .

Pursuant to LAW decisions relating to material evidence are to be taken by means of a judgment of the court in the criminal case or a ruling or a resolution of the court , body of inquiry , investigator or prosecutor ( concerning termination of the proceedings in the case ) . Any dispute with regard to the return of material evidence must be decided in civil proceedings .

Pursuant to LAW , the seizure ( attachment ) of property belonging to a suspect or accused is intended to secure a possible civil claim and a ruling as to confiscation of property in the course of criminal proceedings . Attached property must be inventoried and can be transferred for storage to the representatives of enterprises , institutions , organisations or members of the accused ’s family or other members . Persons who are responsible for storage of property must be informed about criminal liability for failure to comply with storage obligations which have been undertaken by them . Seizure of property and its transfer for storage are to be carried out on the basis of a substantiated resolution ( постанова ) that must be signed by the person who inventoried this property , witnesses to the seizure of the property and the person responsible for storage . An inventory must be appended to the resolution . A specialist should be invited to estimate the value of seized property in case such a valuation is required . If there is no further need for seizure of property , the investigator must pass a separate resolution .

NORP Under paragraph CARDINAL of the ORG material evidence denotes objects which have been used to commit a crime or which bear traces linked to criminal activity or were objects of a criminal act ; these can include monies and other valuables obtained by unlawful means and all other objects that can assist in investigating a crime and establishing the facts of the case .

NORP Under paragraph CARDINAL of the ORG , attached property can be transferred to an entity which has suffered damage from an alleged criminal act . If necessary property can also be seized .

Pursuant to pаrаgraph DATE of the Instruction , material evidence which is part of the criminal case file , after termination of the preliminary investigation and the case file ’s transfer to the court or another investigating body , must always be appended to it .

Pursuant to paragraph CARDINAL of the Instruction , material evidence owned by enterprises , institutions or organisations must be transferred to their authorised representatives .

Pursuant to paragraph CARDINAL of the Instruction , the body of inquiry , preliminary investigation or investigative body must return any confiscated objects before adoption of the final judgment in the case , if it is decided that the return of these objects will not impede the investigation in the case .

Under LAW ( the “ CAP ” ) the arbitration courts have jurisdiction over : cases concerning the conclusion , amendment , suspension and execution of agreements ; disputes concerning technical standards or prices of products and services and others . The arbitration courts ( currently “ commercial courts ” ) also have jurisdiction over insolvency cases .

Article CARDINAL provides that arbitration courts may grant extensions or renewals of the time - limits enshrined in the ORG on an application by a party or a public prosecutor or on their own initiative . A ruling shall be given in the event of a refusal to grant an extension of a procedural time - limit which has not been complied with . This ruling may be appealed against .

In accordance with LAW paragraph CARDINAL of the ORG , the judge must return a claim that was lodged and the documents appended to it , if it does not refer to any circumstances on which the claim was based , has no relevant corroborating evidence or does not include an estimate of the sum claimed . A judge has to issue a ruling on return of a claim within DATE of receipt . Return of the claim does not prevent it from being lodged again , in accordance with general procedure , after any shortcomings have been rectified .

In accordance with LAW ( “ ORG ” ) , a party could request a supervisory review of the lawfulness and reasoning of a judgment , ruling or resolution . Such a review was conducted by the presidents or vice - presidents of the regional arbitration courts and the arbitration courts of the GPE , GPE and PERSON and the specialised judicial division for review of the rulings , resolution and judgments of ORG .

Under LAW , the first - instance arbitration court could review its judgments , rulings or resolutions on its own initiative . In accordance with ORG CARDINAL of the ORG the judicial decisions of the regional arbitration courts and the arbitration courts of GPE , PERSON and the LOC could be reviewed by the presidents of these courts or their deputies . The parties could request to be present at the review .

Under LAW ORG , the request for review had to be lodged with the first - instance arbitration court together with the proof of payment of ORG tax for lodging it and documents confirming the dispatch of a copy of a request to another party . Review proceedings did not suspend enforcement of an initial judicial decision ; however a separate procedural decision in this case might be taken by a review body . A request for review had to be substantiated and based on law and the relevant facts of the case ( LAW ) . It had to be lodged within DATE of the adoption of a judgment , ruling or resolution ( LAW ) . A reply to a request for review was dealt with in LAW and parties should be informed of the date and time of the hearing in the case .

Under LAW ORG the arbitration court had to decide on the admissibility of a request for supervisory review of a judgment , ruling or resolution if the request had not been signed or had been signed without relevant authority , or if a copy of the request had not been sent to another party , the ORG tax had not been paid or the time - limit for lodging a request for review had expired .

NORP In accordance with LAW , the arbitration court had the power to : uphold the judgment , ruling or resolution , leaving it unchanged ; amend the judgment , ruling or resolution ; quash the judgment , ruling or resolution and adopt a new one ; or quash the previous decisions and refer the case back for a fresh examination . It could also leave claims unexamined and terminate the proceedings in the case . The arbitration court which reviewed the case had all the powers of the first - instance court in examining a commercial dispute on its merits . The finding of the review of the case by ORG , Rulings or Resolutions of ORG was final , except when CARDINAL of the parties was outside the territory of GPE or a different procedure was envisaged by international treaties .

CARDINAL

The arbitration court , acting in the course of supervisory review proceedings , had to issue a resolution , which had to be substantiated , based on law and include relevant legal reasoning ( LAW ) . The instructions given in the resolution of the supervisory court were binding in the course of the fresh examination of the case . The resolution of the court could not contain an assessment of evidence or instructions as to how the case should be decided in the future ( LAW ) . The resolution of the arbitration court had to be sent to the parties within DATE ( LAW ) .

The relevant provisions of the amended Code of Commercial Procedure of DATE ( ORG ) read as follows :

“ CARDINAL . This law shall become effective from the date of its publication , save for Article CARDINAL - CARDINAL [ of the LAW ] , which shall become effective on DATE .

... CARDINAL . Decisions of the judicial divisions of ORG of GPE or of the ORG of ORG of GPE that were not challenged by way of supervisory review proceedings before this PERSON entered into force , as well as resolutions of ORG of GPE , shall be final but may be appealed against to ORG of GPE on the basis of and pursuant to the procedure prescribed by LAW of GPE . ”

“ An appeal in cassation ( petition for appeal in cassation ) shall be lodged with ORG through the court of first instance or the commercial court of appeal which gave the contested judgment or resolution .

A first - instance or commercial court of appeal which has adopted a contested judgment or resolution shall transfer the appeal in cassation ( petition for appeal in cassation ) together with the case file to ORG of GPE within DATE of its receipt . ”

“ Appeals in cassation ( petitions for appeal in cassation ) shall be lodged within DATE from the date the judgment of the first - instance court or the resolution of the court of appeal becomes effective . ”

In accordance with LAW ORG appeals on points of law must be accompanied , inter alia , by proof of payment of the court fee .

Under LAW paragraph CARDINAL of the ORG the courts should return appeals on points of law examining them on the merits if the appellant fails to provide evidence of payment of the court fee .

In accordance with LAW paragraph CARDINAL of the ORG courts and tribunals should return notices of appeal on points of law to the appellant without examining the appeal on the merits if it has been lodged out of time and the appellant has not applied for an extension of time .

Under paragraph CARDINAL of the Instruction , requests for annulment of investigative measures by courts and prosecution bodies were outside the jurisdiction of the arbitration courts as a different procedure was envisaged for examination of these requests .

The relevant provisions of LAW of the Code provided for appeals in cassation against court judgments and for the lodging of cassation appeals by the prosecutor .

NORP In particular , under LAW , parties and others participating in the proceedings had the right to lodge appeals in cassation against the judgments in whole or in part . Appeals in cassation against judgments of the first - instance courts were to be lodged with ORG of GPE , regional , GPE and LOC city courts . Appeals in cassation against judgments given by the regional courts and equivalent courts were to be lodged with ORG .

In accordance with LAW the court of cassation was entitled to : uphold the judgment ; quash it in full or in part and remit the case to the first - instance court in a different composition for a fresh examination ; quash the judgment in full or in part and terminate proceedings in the case , leaving the claims unexamined ; or amend the judgment , adopting a new one , without referring the case back for a fresh examination if , inter alia , there had been an error in application of substantive or procedural law .

Section CARDINAL of the LAW provides that a trustee ( insolvency officer ) must call a meeting of creditors , to be held within DATE of the institution of liquidation proceedings . At the meeting , each creditor has a vote proportionate to his or her claim .

ORG . Under section LAW , ORG may approve the proposal of the meeting of creditors , and order economic rehabilitation proceedings for a period of DATE . The court by the same ruling should appoint a licensed trustee ( insolvency officer ) to manage these rehabilitation proceedings .

“ Ex works ” means that the seller places the goods at the disposal of the buyer at the seller ’s premises or another named place not cleared for export and not loaded on any collecting vehicle . The term represents the minimal obligation for the seller , and the buyer has to bear all costs and risks involved in taking the goods from the seller ’s premises . However , if the parties wish the seller to be responsible for the loading of the goods on departure and to bear the risks and costs of such loading , this should be made clear by adding explicit wording to this effect in the contract of sale .


Preliminary objection dismissed (non-exhaustion of domestic remedies);Preliminary objection joined to merits and dismissed (victim);Violation of Art. 6-1+6-3-c;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;David Thór Björgvinsson;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;George Nicolaou;Giorgio Malinverni;Ireneu Cabral Barreto;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Ledi Bianku;Mark Villiger;Mirjana Lazarova Trajkovska;Nicolas Bratza;Päivi Hirvelä;Peer Lorenzen;Renate Jaeger;Sverre Erik Jebens

The applicant was born in DATE . He is currently serving his sentence in LOC .

On DATE the applicant was arrested on suspicion of having murdered his father and uncle . The applicant made a written request to be provided with a legal - aid lawyer . On DATE an expert examination of fingerprints and a forensic examination were ordered and on CARDINAL DATE the applicant was remanded in custody .

On DATE legal - aid counsel , PERSON , was appointed to assist the applicant , and he was charged with aggravated murder on DATE .

From DATE a number of expert examinations were carried out . Subsequently the applicant received copies of orders for such examinations . He signed each of them confirming their receipt and indicating that he had no comments or requests .

On DATE the detention order was lifted and replaced with an undertaking not to leave his place of residence .

NORP In DATE the applicant 's former cellmate in the detention facility , PERSON . , testified that the applicant had told him in detail how he had murdered his father and another man .

On an unknown date the applicant 's friend , PERSON , gave a witness statement alleging that the applicant had asked him to murder his father and that when PERSON refused the applicant seemingly intended to do it himself .

On DATE the applicant was again remanded in custody .

On DATE the ORG examined the criminal charges against the applicant . The applicant pleaded not guilty . The court examined CARDINAL witnesses including PERSON . and NORP , and found the applicant guilty of the murder of QUANTITY persons , sentencing him to DATE imprisonment . In its judgment the court referred to witness statements , forensic reports and extensive material evidence .

The applicant and his lawyer appealed , alleging that Zh . and NORP had given their statements under pressure from the police and claiming that the investigation had been vitiated by numerous violations of the applicant 's defence rights . They also complained that they had received the expert examination orders belatedly .

On DATE and DATE the applicant requested to be assigned another lawyer to represent him in the appeal proceedings because PERSON was unable to attend the hearing , as she was already engaged in another trial .

On an unknown date the applicant was informed that his participation in the appeal hearing would be ensured by video link . On CARDINAL and DATE he requested leave to attend the appeal proceedings in person because he did not consider that the video link would provide him with an adequate opportunity to participate in the hearing .

On DATE ORG of GPE ordered the GPE IZ-CARDINAL/CARDINAL detention centre to ensure the applicant 's participation in the appeal hearing , which was to take place on DATE , by video link .

On DATE ORG of GPE examined the applicant 's appeal . The applicant participated in the proceedings by video link . No defence counsel attended the hearing . The court dismissed the applicant 's appeal , having found no proof that the testimony of Zh . and NORP was false . As regards the alleged breach of his defence rights , the court found this to be unsubstantiated .

In DATE the applicant filed several supervisory review complaints . In letters of DATE and DATE ORG and ORG informed the applicant that they refused to entertain his complaints . ORG noted , in particular , that the applicant 's right to take part in the appeal proceedings had been fully respected . On DATE Judge PERSON of ORG refused to open supervisory review proceedings on the applicant 's complaint . That decision was confirmed by the President of ORG on DATE . On DATE another supervisory - review complaint by the applicant was returned without examination , with reference to the earlier decisions on that matter .

On DATE the ORG decided to communicate the application to ORG . On DATE the ORG of ORG granted an application for supervisory review by the Deputy Prosecutor General and quashed ORG appeal decision of DATE . The ORG found that the applicant 's right to legal assistance had been violated in the appeal hearing and remitted the case for a fresh examination before the appellate court .

The applicant requested to take part in the appeal hearing in person . On DATE ORG , sitting as a bench of CARDINAL judges , granted him leave to attend in person and ordered the applicant 's temporary transfer from the prison in LOC to a detention facility in GPE ( over QUANTITY from GPE ) , apparently to allow him to use the video link .

On DATE the applicant made a new statement of appeal . He requested ORG to examine his appeal on the basis of this new statement alone and also requested leave to attend the appeal hearing in person rather than by video link .

On DATE ORG , sitting in GPE , examined the case . First , it considered the applicant 's requests of CARDINAL DATE . In a separate decision on procedure it found that there were no grounds to accept the applicant 's new statement of appeal and decided to examine the case on the basis of the statement by the applicant 's former counsel , PERSON , from DATE . It also rejected the applicant 's request to attend in person , finding that the video link would be sufficient to ensure that the applicant could follow the proceedings and make objections or other submissions , and that this form of participation would be no less effective than if he was personally present in the courtroom . ORG then introduced the applicant to PERSON , his new legal - aid counsel who was present in ORG courtroom and then allowed them TIME of confidential communication by video link before the start of the hearing . All persons , both in the courtroom and in the detention facility , left the rooms .

The applicant rejected the assistance of PERSON on the grounds that he needed to meet his counsel in person . ORG , having noted that the applicant did not rely on any divergence with PERSON in his defence , did not request her replacement by another legal - aid lawyer , did not accept ORG proposal to retain private counsel of his choosing and , taking into account the quashing of the previous appeal decision on the grounds of a lack of legal assistance , rejected the applicant 's objection to the counsel 's assistance . Accordingly , PERSON represented the applicant in the appeal hearing .

On DATE ORG examined the merits of the case . It upheld the judgment of ORG of DATE , making CARDINAL correction to the text and excluding CARDINAL piece of evidence . The substantive findings and the applicant 's sentence remained unchanged .

Article CARDINAL of the Code of Criminal Procedure of GPE ( in force from DATE ) provides for mandatory legal representation if the accused faces serious charges carrying a term of imprisonment DATE , life imprisonment or the death penalty . Unless counsel is retained by the accused , it is the responsibility of the investigator , prosecutor or the court to appoint legal - aid counsel . Article CARDINAL of the LAW provides that the accused can waive his right to legal assistance , but such waiver must be established in the written form . The waiver can be revoked at any moment .

Article CARDINAL of the Code provides that the appellate court ( суд кассационной инстанции ) examines appeals ( кассационные жалобы ) with a view to verifying the lawfulness , validity and fairness of judgments . Under LAW and CARDINAL of the Code , it may directly examine evidence , including additional material submitted by parties .

Article CARDINAL of the Code ( “ Appeal against judgments , decisions and rulings which have come into force ” ) stipulates as follows :

“ CARDINAL . Defendants who have been convicted or acquitted , ... and the public prosecutor shall be entitled to request review of court judgments ... which have come into force in accordance with the procedure set out in the present Chapter .

NORP The public prosecutor 's request shall be termed a supervisory - review application ( представление ) . Other parties ' requests shall be termed supervisory - review complaints ( жалоба ) . ”

Article CARDINAL of the Code ( “ Examination of supervisory - review complaints or applications ” ) stipulates as follows :

“ CARDINAL . A supervisory - review complaint or application shall be examined by a supervisory - review court within DATE of being lodged .

The judge who examines the supervisory - review complaint or application may , where necessary , obtain ... any criminal case file ...

After examining the supervisory - review complaint or application , the judge shall decide as follows : either

( i ) to dismiss the supervisory - review complaint or application ; or ,

( ii ) to institute supervisory - review proceedings and to pass the supervisory - review complaint or application for consideration to the supervisory - review court ...

NORP The President of the [ competent ] court may decline to accept the judge 's decision to dismiss the supervisory - review complaint or application . In this case he shall set aside this decision and give a decision according to paragraph CARDINAL ( ii ) [ above ] . ”

Article CARDINAL of the Code ( “ Lodging of new supervisory - review complaints or applications ” ) stipulates as follows :

“ CARDINAL . It is forbidden to lodge new supervisory - review complaints or applications with a court which has already dismissed such complaints or applications .

Where an earlier judgment , decision or ruling has been quashed on appeal or under the supervisory - review procedure , it is possible to lodge a supervisory - review complaint or application against it in accordance with the rules of the present LAW , irrespective of the reasons why the original judgment , decision or ruling was quashed . ”

Article CARDINAL of the Code , setting out the procedure for re - opening of criminal cases , reads , in so far as relevant , as follows :

“ CARDINAL . ORG judgments and decisions which became final should be quashed and proceedings in a criminal case should be re - opened due to new or newly discovered circumstances .

New circumstances are :

( CARDINAL ) a violation of a provision of LAW committed by a court of GPE during examination of a criminal case and established by ORG , pertaining to :

( a ) application of a federal law which runs contrary to provisions of LAW ;

( b ) other violations of provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms ;

Examining the compatibility of LAW , the Constitutional Court ruled as follows ( decision no . CARDINAL-O of DATE ) :

“ LAW , which describes the circumstances in which the participation of defence counsel is mandatory , does not contain any indication that its requirements are not applicable in appeal proceedings or that the convict 's right to legal assistance in such proceedings may be restricted . ”

NORP That position was subsequently confirmed and developed in CARDINAL decisions delivered by ORG on DATE . It found that free legal assistance for the purpose of appellate proceedings should be provided in the same conditions as for earlier stages in the proceedings and that it was mandatory in the situations listed in LAW . It further underlined the obligation of courts to secure participation of defence counsel in appeal proceedings .

On DATE ORG dismissed a constitutional complaint by PERSON as inadmissible . In its ruling ( определение ) ORG held inter alia that LAW , which defined situations where participation of a defence lawyer in the criminal proceedings was mandatory , also applied to the proceedings before the court of appeal .

In a number of cases ( decisions of CARDINAL DATE and DATE , DATE , DATE , DATE and DATE , DATE and DATE , CARDINAL DATE , DATE and DATE ) the Presidium of ORG of the Russian Federation quashed judgments of appeal courts and remitted cases for fresh consideration on the ground that the courts had failed to secure the presence of defence counsel in the appeal proceedings , although it was obligatory for the accused to be legally represented . That approach was also confirmed by the ORG of ORG in its report concerning cases adopted in DATE ( Decree of DATE ) and by the Decree of the Plenary of ORG of DATE , as amended on DATE . In the later document ORG emphasised that the accused could waive his right to a lawyer only in writing , and that the court was not bound by that waiver .


The applicant , PERSON , is a NORP national , who lives in GPE . The respondent Government were represented by their Agent , Mr J. PERSON of ORG .

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

The applicant ’s parents owned a property which was inherited by their children and a granddaughter in different shares . Apparently , the heirs could not agree on the common administration of the co - owned property . On DATE , the applicant instituted proceedings for the division of the estate and dissolution of the co - ownership . In her pleadings of CARDINAL DATE the applicant also argued that she had acquired CARDINAL of the property by prescription .

The hearing was held on DATE . As the applicant was absent and her attorney failed to submit relevant documents , the court decided to stay the proceedings . On DATE the applicant requested the court to resume the proceedings .

On DATE , upon the applicant ’s motion , the court made an interim order prohibiting the co - owners from selling their respective shares in the property pending the outcome of the proceedings .

On DATE , by a partial decision , the court dismissed the applicant ’s motion whereby she claimed to have acquired CARDINAL of the property by prescription . Upon the applicant ’s appeal , the ORG quashed the decision and remitted the matter to the trial court for reconsideration . Having re - examined the applicant ’s motion , on DATE , ORG issued a new partial decision . Upon the applicant ’s and PERSON ’s appeal , on DATE the ORG again quashed the firstinstance decision and remitted the matter for reconsideration . Additionally , the court found ex officio that the last stage of the proceedings had to be in any event invalidated , as CARDINAL of the participants had passed away and his successors were not represented .

In the meantime , on DATE PERSON requested the court to quash the interim order of DATE prohibiting the parties from selling their shares in the property . The applicant opposed the request and , on DATE , the request was dismissed and the original interim order was upheld .

Having examined the applicant ’s motion for the third time , ORG rendered a partial decision on DATE . The applicant appealed on DATE . On DATE , the ORG quashed the impugned decision and remitted the matter to the first - instance court .

Having examined the applicant ’s motion for the fourth time , on DATE ORG issued a partial decision whereby it again dismissed the applicant ’s motion . On DATE the applicant filed an appeal .

On DATE ORG dismissed the applicant ’s appeal . On DATE the applicant filed a cassation appeal . On DATE the ORG rejected the appeal as the applicant had failed to pay court fees . The applicant further requested the reinstatement of the time limit for filing a cassation appeal . This request was dismissed by ORG and the applicant ’s further appeal was rejected by ORG on DATE . At the hearing of CARDINAL DATE the trial court heard the parties’ final submissions .

On DATE CARDINAL decisions were given : CARDINAL quashing the interim order of DATE and the other dismissing the applicant ’s claim for the dissolution of the co - ownership .

On DATE the applicant appealed against the former decision .

On DATE the court ordered her to indicate the value of the land . She complied with the order on DATE .

On DATE the applicant appealed against the decision dismissing her action .

By a decision of DATE the court set aside the decision of CARDINAL DATE quashing the interim order of DATE .

By a decision of DATE the court upheld the decision of CARDINAL DATE on the merits of the case .

On DATE the applicant lodged a cassation appeal against this decision with ORG . By a decision of DATE ORG refused to entertain the cassation appeal .

On DATE the Law of CARDINAL DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) entered into force . It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings .

Section CARDINAL of LAW lays down the following transitional rules in relation to applications already pending before the Court :

“ CARDINAL . Within DATE after the date of entry into force of this law persons who , before that date , had lodged a complaint with ORG ... complaining of a breach of the right to a trial within a reasonable time guaranteed by LAW ... , may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to ORG had been lodged in the course of the impugned proceedings and if the ORG has not adopted a decision concerning the admissibility of their case .

A complaint lodged under subsection CARDINAL shall indicate the date on which the application was lodged with the ORG .

The relevant court shall immediately inform the Minister of ORG of any complaints lodged under subsection CARDINAL . ”

For a more detailed presentation of the relevant domestic law see PERSON GPE DATE . ) , no . CARDINAL , ECHR DATE ; PERSON v. GPE DATE . ) , no . CARDINAL , ECHR DATE .


The applicant , PERSON , is a limited liability company possessing legal personality under NORP law . It was represented before the ORG by PERSON and colleagues , lawyers practising in GPE .

The applicant company sells construction materials , but is also engaged in e - commerce . It held CARDINAL internet domain names which had been registered by the competent registration authority ( DENIC e . PERSON ) after payment of the respective fees ( currently ORG CARDINAL per domain registration and ORG DATE for the connectivity and administration of the domain by DENIC e . PERSON ) . In particular , in DATE and DATE the applicant successfully applied for the registration of the domains “ freundin-online.de ” , “ ad-acta.de ” , “ Eltern - online.de ” and “ duck.de ” .

The domain contracts concluded with DENIC e . PERSON granted the applicant the exclusive right to use or dispose of the domains registered . According to terms of the contract , DENIC e . PERSON did not examine whether the registration and use of the domain infringed the rights of others , which was a matter for the domain holder to verify . The contracts were open - ended and could be terminated by the domain holder without notice and by DENIC e . PERSON for good cause ( such as the final finding of a court that the registration of the domain in question violated the rights of others or the contracting party ’s failure to pay the domain fees ) .

Subsequently , several sets of proceedings were brought against the applicant by other companies and private individuals claiming that the registration and use by the applicant of certain domains breached their trademark rights and / or their rights to a ( business ) name .

On DATE the Freundin Verlag GmbH , publisher of the women ’s magazine “ freundin ” ( “ ( girl)friend ” ) and licensed holder of the trademark “ freundin ” , brought an action in ORG for a court order prohibiting the applicant to use or dispose of the internet domain “ freundin-online.de ” and obliging the applicant to apply for a cancellation of this domain with the registration authority . It argued that the applicant breached its right to a business denomination and its trademark rights .

By decision of DATE ORG separated CARDINAL counterclaims brought by the applicant from the plaintiff ’s claim . It argued that , contrary to the plaintiff ’s action , the counterclaims , which had only been served in the hearing on DATE , were not yet ready for a decision .

In its judgment delivered on DATE the GPE ORG , relying on section CARDINAL § § CARDINAL and CARDINAL of the Trademark Act ( Markengesetz ; see Relevant domestic law below ) , allowed the plaintiff ’s action .

ORG found that the magazine title “ freundin ” was a well - known business denomination as the women ’s magazine , which addressed the general public with the issues it covered , had been sold in all newspaper stands for DATE . Moreover , the plaintiff published the contents and services of its magazine on the website “ freundin.de ” . The applicant was unfairly taking advantage of the distinctiveness of the plaintiff ’s business denomination for its internet platform without justification . As the applicant had failed to explain why it did not use its domain “ freundin-online.de ” , the respective website being “ under construction ” for DATE , the court concluded that the company had only “ grabbed ” this domain in order to sell it to the plaintiff which could then use the domain . As the applicant also had not set out what future use exactly it intended for the website at issue – the company had only announced that an internet portal should be created on which everyone having a connection with the domain name could present himself free of charge DATE , there was a risk that it would use the site in CARDINAL of numerous possible manners which infringed the plaintiff ’s rights . Therefore , the scope of the orders against the applicant could not be less broad .

By decision of DATE ORG , having considered the parties’ written submissions , dismissed the applicant ’s appeal . It found that the case did not raise a legal issue of fundamental importance , that its judgment was not necessary for the development of the law or for securing the uniform application of the law and that , for the reasons given by ORG , the appeal was ill - founded .

ORG further argued that the separation of the applicant ’s CARDINAL counterclaims from the plaintiff ’s claim had complied with the applicable legal provisions and had neither been arbitrary nor breached the applicant ’s right to be heard . The counterclaim against both the plaintiff and a third party company , by which the applicant pursued a partial cancellation of the word mark “ freundin ” , was irrelevant to the present proceedings as the scope of that word mark had not been relied upon by ORG or by itself , the decision having been based on the protection of the plaintiff ’s business denomination . The applicant ’s counterclaim against the plaintiff alone for a declaration that the use by the applicant of the domain in order to sell computer discs did not breach the plaintiff ’s rights was no more than a contestation of the plaintiff ’s claim and had as such been taken into consideration in ORG judgment . The applicant had , however , failed to demonstrate that it could use the domain in question in a way which did not breach the plaintiff ’s rights .

On DATE the applicant lodged a complaint with ORG . It submitted that the decisions taken by the civil courts had breached its right to be heard and to a fair trial due to the separation of its counterclaims from the plaintiff ’s claims and by dismissing its appeal by way of a decision . Moreover , its right to property had been violated in that it was prohibited to use its domain “ freundin-online.de ” and obliged to apply for its cancellation .

On DATE ORG , referring to the provisions allowing for that procedure , declined to consider the applicant ’s constitutional complaint without giving reasons for its decision ( file no . CARDINAL BvR CARDINAL/CARDINAL ) . The decision was served on the applicant ’s counsel on DATE .

In DATE the ad - acta ORG , a company dealing with the destruction of files and data media , brought an action for a court order prohibiting the applicant to use the domain name “ ad-acta.de ” and obliging it to apply with the registration authority for a cancellation of that domain . It argued that the applicant breached its right to a business name and its trademark rights .

On DATE ORG , relying on the right to protection of one ’s name under section CARDINAL of LAW ( see Relevant domestic law below ) , allowed the plaintiff ’s action .

On DATE ORG dismissed the applicant ’s appeal . It found that the plaintiff had a claim under section QUANTITY of LAW and section CARDINAL of LAW ( see Relevant domestic law below ) for the applicant to refrain from using the domain name “ ad-acta.de ” . The term “ ad - acta ” was part of the plaintiff ’s business name . The use of the internet address “ ad-acta.de ” by the applicant company , which intended to offer definitions and advertisements concerning the storing and destruction of files on its website , was likely to lead to confusion with the plaintiff ’s company and infringed the plaintiff ’s right to a name . In order to have the interference with its rights removed , the plaintiff could also request the applicant to agree to the cancellation of its domain name with the registration authority .

On DATE ORG refused to grant the applicant leave to appeal on points of law , finding that the appeal had no prospects of success .

On DATE the applicant lodged a constitutional complaint with ORG . It complained , in particular , that its right to property had been breached and that the civil courts had failed to consider its arguments relating to the violation of this right .

On DATE ORG declined to consider the applicant ’s constitutional complaint ( file no . CARDINAL BvR CARDINAL/CARDINAL ) . It found that the complaint had no prospects of success because the impugned decisions did not violate the applicant ’s property rights .

Its contract with the registration authority provided that the applicant had a right to use the domain in question , which constituted “ property ” under LAW . However , the application to the present case of the relevant provisions of LAW was a limitation on the applicant ’s property rights which was compatible with LAW . In particular , the applicant ’s duty to apply for a cancellation of its domain with the registration authority did not disproportionately limit its property rights . There were no measures which would be less restrictive while fully satisfying the legitimate interests of the company holding the trademark rights to stop the interference with its rights . The danger of confusion could not sufficiently be averted , for example , by indications given on a website operated by the applicant under the domain name in question .

On DATE the ORG , which has published the magazine “ NORP ” ( “ parents ” ) DATE since DATE and has run the website “ Eltern.de ” since DATE , brought an action against the applicant company in ORG . It applied for an order prohibiting the applicant from using or to authorising others to use the domain name “ eltern-online.de ” and obliging the applicant to apply with the registration authority for a cancellation of that domain . It argued that the applicant breached its trademark rights .

On DATE ORG , relying on section QUANTITY of LAW , allowed the plaintiff ’s action .

On DATE ORG dismissed the applicant ’s appeal . It argued that there was a danger of confusion between the domain name “ eltern-online.de ” registered by the applicant and the business denomination “ NORP ” of the plaintiff ’s magazine within the meaning of section QUANTITY § § CARDINAL and CARDINAL of LAW . In order to have the interference with its rights removed , the plaintiff could also request the applicant to agree to the cancellation of its domain name with the registration authority .

On DATE ORG dismissed the applicant ’s complaint about ORG refusal to grant it leave to appeal on points of law .

On DATE the applicant lodged a constitutional complaint with ORG in which it complained , in particular , that its property rights had been breached by the decisions of the civil courts and that the civil courts had failed to consider its arguments concerning the violation of these rights .

On DATE ORG , without giving reasons , declined to consider the applicant ’s constitutional complaint ( file no . CARDINAL BvR CARDINAL/CARDINAL ) . The decision was served on the applicant ’s counsel on DATE .

In DATE Mr PERSON , an architect who had been working under the business name “ Architekturbüro Duck ” ( “ architecture office Duck ” ) since DATE , brought an action in ORG for a court order prohibiting the applicant to use or dispose of the domain name “ duck.de ” and obliging the applicant to apply with the registration authority for the cancellation of that domain . He argued that the applicant breached his right to a name and his trademark rights .

On DATE the GPE ORG allowed the plaintiff ’s action .

On DATE ORG dismissed the applicant ’s appeal . The domain name contained the plaintiff ’s family name and the applicant had failed to give sound reasons outweighing the plaintiff ’s interests why it made use of the name . In particular , if the applicant company , as it had claimed , wanted to create a website concerning the duck as an animal or aliment , it was free to use the NORP expression for duck or a different denomination which was not likely to lead to confusion with the plaintiff ’s name . As the applicant had spent MONEY in domain fees and had not posted any contents on the internet under the domain name in question , its possession did not warrant protection .

ORG subsequently refused to grant the applicant leave to appeal on points of law .

On DATE the applicant lodged a complaint with ORG . It argued , in particular , that its property rights had been breached by the decisions of the civil courts and that the civil courts had failed to consider its arguments concerning the violation of these rights .

Section CARDINAL of LAW , which concerns the right to bear a name , provides that if someone contests the holder ’s right to use a name or interferes with the holder ’s interest by using the same name without justification , the holder may claim removal of the interference . If there is a risk of repeated interferences the holder may bring an action for a permanent injunction .

Section CARDINAL of LAW lays down the rights of holders of a business denomination ( geschäftliche GPE ) . It is prohibited for third parties to use the business denomination or a similar mark without justification in the course of business activities in a manner which may lead to confusion with the protected denomination ( section CARDINAL § CARDINAL ) .

Section CARDINAL § CARDINAL of the Trademark Act concerns business denominations which are well - known within the domestic territory . It is prohibited for third parties to use these business denominations or a similar mark in the course of business activities also if there is no danger of confusion within the meaning of paragraph CARDINAL in so far as the use of the denomination unfairly exploits or interferes with the distinctiveness or esteem of the protected business denomination without justification .

According to section QUANTITY , the holder of a protected business denomination may bring an action to cease and desist against anyone who uses a business denomination or a similar mark contrary to paragraphs CARDINAL or CARDINAL .


The applicant is a NORP national , born in GPE in DATE . He is currently living in GPE , GPE , and is subject to a deportation order . He is married to a NORP national who is living and working in GPE . The CARDINAL children of the marriage , the younger of whom was born in GPE , are living with the applicant .

The applicant is represented in the proceedings before the ORG by ORG , a firm of advocates practising in GPE , GPE .

The applicant claims that he originally entered GPE on DATE and was granted leave to remain for a limited period to pursue a course of studies in GPE . While in GPE he became a member of ORG ( “ GDM ” ) , an anti - government group . On DATE he returned to GPE to visit his parents and to deliver publications on behalf of the LOC .

The applicant arrived back in GPE on DATE through normal channels on a flight from GPE , GPE . DATE he learned that the NORP authorities had traced the distribution of the PERSON leaflets to him . The applicant was given leave to enter for DATE to complete his studies .

On DATE he was granted further leave to remain as a student until DATE . In a letter dated DATE ORG ( “ CWIAC ” ) applied for political asylum on the applicant ’s behalf claiming that he was being sought by the NORP authorities in connection with the distribution of anti - government publications . ORG wrote to the applicant on DATE inviting him to attend for interview on DATE . A copy of the letter was sent to the ORG . The applicant failed to attend . He maintains that this was due to the fact that the letter informing him of the interview had been wrongly addressed .

The applicant submitted an asylum application on CARDINAL DATE claiming that he had a well - founded fear of persecution if he were to be returned to GPE . The Secretary of ORG considered the request on the basis of the applicant ’s written representations . In a letter dated DATE the ORG notified the applicant that the Secretary of ORG had refused his application . Among his reasons for refusing the request , the Secretary of ORG highlighted that the application was made DATE before the date of expiry of his leave to remain as a student and DATE after he discovered that he was wanted by the NORP authorities . In the Secretary of ORG ’s opinion these factors undermined the credibility of his asylum claim . In addition , the Secretary of ORG considered that the claim as a whole was vague , lacking in detail , substance and credibility , and that his account of being sought by the NORP authorities had been fabricated in order to bolster a bogus claim made with the sole intention of circumventing the immigration rules DATE before his limited leave to remain in GPE was due to expire . Furthermore , the Secretary of ORG stated that the political and human rights situation in GPE had changed radically since the applicant ’s departure in DATE and there was no reason under the ORG LAW relating to LAW DATE why the applicant could not return safely to his country of nationality .

On DATE the Special Adjudicator heard the applicant ’s appeal against the decision of the Secretary of ORG . The applicant appeared in person . At the hearing the applicant testified that he had CARDINAL young children , CARDINAL of whom was born in GPE . He stated that his wife was a ORG official posted in GPE and that she had travelled to GPE DATE to see him up until DATE . He told the Special Adjudicator that he had been detained and tortured in DATE and DATE . In DATE he went to GPE to study but was able to travel back to GPE in DATE and in DATE since he did not risk persecution during that period . It was only when he distributed the ORG materials during his visit in DATE that the risk of persecution became a reality again .

On DATE the Special Adjudicator dismissed the appeal . In his decision the Special Adjudicator agreed with the Secretary of ORG ’s opinion that the timing of the applicant ’s request for asylum as well as his failure to attend the interview reflected adversely on his credibility . He found the applicant ’s account of his arrest and torture in DATE and in DATE and his allegation of being sought by the authorities in connection with the distribution of ORG materials entirely unsubstantiated . He observed in addition that his movements back and forth between GPE and GPE DATE were not the actions of a man who has a well - founded fear of persecution . The Special Adjudicator concluded :

“ ... I do not find that the appellant is a credible witness and I find that he has fabricated the whole account .

It is quite clear that even if I accepted part of the appellant ’s account there has been an amnesty in GPE and that there has been a sea change in the politics in GPE and there has been a gradual return to democracy . ”

On DATE ORG refused the applicant ’s application for leave to apply for judicial review of the Secretary of ORG ’s decision . The applicant did not renew his application .


Violation of Art. 6-1 (access);Not necessary to examine Art. 6-1 (publicly);Damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

Mr lives at Höchst in GPE .

ORG On DATE a police car observed the applicant driving on the motorway at speeds considerably in excess of the maximum speed limits . At TIME and TIME he was recorded travelling at QUANTITY on a stretch of road where a sign indicated the limit to be CARDINAL ORG . TIME later he was recorded travelling at CARDINAL ORG . over the general CARDINAL k.p.h . limit for motorways . The applicant alleged that as the vehicle he was driving was an extremely powerful one , it was difficult for the driver to realise at what speed it was actually travelling .

On DATE the LOC regional police authority ( PERSON ) drew up a report and imposed CARDINAL separate fines on the applicant for speeding .

ORG On DATE , after administrative proceedings which involved an examination of the reporting police officers ( Meldungsleger ) in the absence of the applicant , the ORG district authority ( ORG ) found the applicant guilty of CARDINAL speeding offences under LAW ( Straßenverkehrsordnung - see paragraph CARDINAL below ) . Pursuant to section CARDINAL ) of that Act ( see paragraph CARDINAL below ) the applicant was fined CARDINAL and CARDINAL NORP schillings ( ORG ) , with imprisonment of DATE respectively in default of payment .

ORG The applicant appealed to the LOC regional government ( ORG PERSON ) , questioning the precision of the police methods for measuring vehicle speed . He further contended that , having admitted driving at a high speed on a given stretch of road , he should not have been punished under CARDINAL different provisions , which had resulted in an excessively high fine . He therefore requested that the incident be treated as a single offence and the fine reduced accordingly .

ORG On DATE the ORG regional government reduced the fines to ORG CARDINAL respectively , and the penalties in default to DATE imprisonment . The appellate authority accepted , among other considerations , that speed - measuring techniques could not achieve total accuracy . The submission that CARDINAL offence had been committed was dismissed on the ground that CARDINAL different provisions had been infringed at CARDINAL different moments in time .

Mr Palaoro then applied to ORG ) . Relying on DATE ( article CARDINAL ) of the LAW , he complained that the administrative criminal procedure did not guarantee a fair trial . He argued that he should have been given an oral hearing and the opportunity to examine the witnesses - that is to say the police officers - in person . This would have allowed him to establish that the measuring methods used by the police were often defective . He further criticised the " principle of cumulative imposition of penalties " ( PERSON ) , by virtue of which the same criminal behaviour could be punished under different provisions . In this context he referred to LAW No . QUANTITY ( ( PCARDINAL - CARDINAL ) to the LAW .

ORG On DATE ORG declared the applicant 's complaint partly inadmissible as raising questions concerning the application of ordinary law ; in so far as the complaint did raise issues of constitutional law , ORG , referring to its own case - law on the LAW , found that the application did not have sufficient prospects of success . Among other provisions , Article CARDINAL para . CARDINAL of LAW was applied ( see paragraph CARDINAL below ) .

ORG On DATE Mr PERSON requested ORG to send his file to ORG ( Verwaltungsgerichtshof ) and on DATE he submitted his grounds of appeal to the latter . He stressed that he should have had the opportunity to examine the witnesses directly and that he should not have been punished twice for what he considered to be a single offence .

No public hearing was requested .

ORG On DATE the applicant 's appeal was dismissed by ORG pursuant to section CARDINAL(CARDINAL ) of LAW ( Verwaltungsgerichtshofsgesetz - see paragraph CARDINAL below ) . It noted that a formal confrontation with a witness was to be ordered only where it was necessary in the special circumstances of a given case : there was no general right to put questions in person to a witness ( section CARDINAL of LAW ) . ORG upheld the respondent authority 's grounds for dismissing the applicant 's second complaint ( see paragraph CARDINAL above ) .

Section CARDINAL(CARDINAL ) of LAW DATE sets the maximum speed limit on motorways at QUANTITY .

Section CARDINAL(A)(CARDINAL)(a ) of the same LAW prohibits travelling in excess of the speed limit indicated on a road sign .

ORG Under section CARDINAL(CARDINAL)(a ) of FAC , breaches of its provisions are punishable with a fine of up to ATS CARDINAL,CARDINAL , with imprisonment of DATE in default of payment .

Article CARDINAL para . CARDINAL of LAW ( Bundes - Verfassungsgesetz ) provides :

" Hearings by trial courts in civil and criminal cases shall be oral and public . Exceptions may be prescribed by law . "

ORG By Article CARDINAL para . CARDINAL of LAW , ORG , when an application ( Beschwerde ) is made to it , has to determine whether an administrative decision ( Bescheid ) has infringed a right guaranteed by the LAW or has applied regulations ( Verordnung ) contrary to the law , a law contrary to LAW or an international treaty incompatible with NORP law .

Article CARDINAL para . CARDINAL provides :

" Up to the time of the hearing ORG may by means of a decision ( ORG ) decline to accept a case for adjudication if it does not have sufficient prospects of success or if it can not be expected that the judgment will clarify an issue of constitutional law . The court may not decline to accept for adjudication a case excluded from the jurisdiction of ORG by Article CARDINAL . "

ORG By LAW para . CARDINAL of LAW , ORG has jurisdiction to hear , inter alia , applications alleging that an administrative decision is unlawful .

Section CARDINAL(CARDINAL ) of the Administrative Court Act provides , in particular , that at the end of the preliminary proceedings ( ORG ) ORG must hold a hearing where the applicant makes a request to that effect .

Section CARDINAL(CARDINAL ) reads as follows :

" Notwithstanding a party 's application under subsection ( CARDINAL ) , ORG may decide not to hold a hearing where

ORG the proceedings must be stayed ( section CARDINAL ) or the application dismissed ( section CARDINAL ) ;

ORG the impugned decision must be quashed as unlawful because the respondent authority lacked jurisdiction ( section CARDINAL(CARDINAL)(CARDINAL ) ) ;

ORG the impugned decision must be quashed as unlawful on account of a breach of procedural rules ( section CARDINAL(CARDINAL)(CARDINAL ) ) ;

ORG the impugned decision must be quashed because its content is unlawful according to the established case - law of ORG ;

ORG neither the respondent authority nor any other party before the court has filed pleadings in reply and the impugned decision is to be quashed ;

ORG it is apparent to the court from the pleadings of the parties to the proceedings before it and from the files relating to the earlier administrative proceedings that a hearing is not likely to clarify the case further . "

ORG - paragraphs CARDINAL of section CARDINAL ) were in force in DATE ; sub - paragraphs CARDINAL and CARDINAL were inserted in DATE and sub - paragraph CARDINAL in DATE .

ORG LAW ) of LAW provides :

" In so far as ORG does not find any unlawfulness deriving from the respondent authority 's lack of jurisdiction or from breaches of procedural rules ( section CARDINAL(CARDINAL)(CARDINAL ) and ( CARDINAL ) ) ... , it must examine the impugned decision on the basis of the facts found by the respondent authority and with reference to the complaints put forward ... If it considers that reasons which have not yet been notified to CARDINAL of the parties might be decisive for ruling on [ CARDINAL of these complaints ] ... , it must hear the parties on this point and adjourn the proceedings if necessary . "

Section CARDINAL(CARDINAL ) of the same LAW states that , save as otherwise provided , ORG must either dismiss an application as ill - founded or quash the impugned decision .

By section ORG ) ,

" The Administrative Court shall quash the impugned decision if it is unlawful

ORG by reason of its content , [ or ]

ORG because the respondent authority lacked jurisdiction , [ or ]

ORG on account of a breach of procedural rules , in that

( a ) the respondent authority has made findings of fact which are , in an important respect , contradicted by the case file , or

( b ) the facts require further investigation on an important point , or

( c ) procedural rules have been disregarded , compliance with which could have led to a different decision by the respondent authority . "

ORG If ORG quashes the impugned decision , " the administrative authorities [ are ] under a duty ... to take immediate steps , using the legal means available to them , to bring about in the specific case the legal situation which corresponds to ORG view of the law ( PERSON ) " ( section CARDINAL(CARDINAL ) ) .

ORG In a judgment of CARDINAL DATE ( G CARDINAL/CARDINAL ) ORG held :

" From the fact that it has been necessary to extend the reservation in respect of LAW to cover the procedural safeguards of LAW article CARDINAL ) of the LAW , because of the connection between those CARDINAL provisions ( article CARDINAL , article CARDINAL ) , it follows that , conversely , the limited review ( die ( bloß ) nachprüfende PERSON ) carried out by ORG or ORG is insufficient in respect of criminal penalties within the meaning of the Convention that are not covered by the reservation . "

ORG Pursuant to LAW , administrative courts called " independent administrative tribunals " ( ORG ) were set up in the Länder with effect from DATE . The functions of these tribunals include determining both the factual and the legal issues arising in cases concerning administrative offences ( ORG ) .

ORG The instrument of ratification of the Convention deposited by ORG on DATE contains , inter alia , a reservation worded as follows :

" The provisions of LAW shall be so applied that there shall be no interference with the measures for the deprivation of liberty prescribed in the laws on administrative procedure , BGBl [ ORG ] No . CARDINAL , subject to review by ORG or ORG as provided for in LAW . "