Violation of Art. 6-1 (access to court);Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in LOC .

In DATE the applicant was dismissed from her job . On DATE the ORG found that the dismissal had been unlawful . On DATE it issued a supplementary judgment in which , inter alia , it dismissed the applicant ’s claim that her employment with the defendant still continued . The parties did not appeal against this conclusion and it thus became final .

On DATE the ORG delivered a decision approving a settlement agreement under which the defendant undertook to pay compensation to the applicant for the above unlawful termination of her employment . The period for which compensation was to be paid ended by the date on which the judgment of DATE had become final , that is DATE .

On DATE the employer asked the applicant to sign a document indicating that she was being compensated for lost income in the context of the above judicial decisions and the subsequent settlement agreement . The document further indicated that the applicant had refused to resume her job , agreed to the termination of her employment with effect from CARDINAL DATE , and waived any further claims in this respect .

On DATE the applicant challenged the second termination of her employment before LOC . She alleged that she had been obliged to sign the above document .

In the course of DATE ORG held CARDINAL hearings , and on DATE it found that the termination of the applicant ’s employment as from DATE had been unlawful . The court heard witnesses and took further evidence . It established that the applicant had not agreed to the termination of her employment of her own free will as the relevant document had been typed in advance and the payment of compensation under the earlier judicial decisions was made subject to the applicant ’s agreement to the termination of her employment .

On DATE the defendant appealed . On CARDINAL DATE the applicant submitted her observations in reply .

On DATE the ORG overturned the first instance judgment and dismissed the applicant ’s action . It noted that in the first set of proceedings terminated by ORG judgments of CARDINAL and DATE , the applicant ’s claim concerning the duration of her contract employment had been dismissed as the applicant had expressly stated at a hearing that she did not wish to return to her job . That decision had become final . As a result , the applicant ’s contract of employment had been terminated in accordance with the relevant law . ORG concluded that , when the above document had been signed on DATE , the applicant had no longer been entitled to be employed by the defendant .

The appellate court ’s judgment was to be served on the parties through the intermediary of ORG . It was sent by registered mail and the delivery slip indicates that the post officer unsuccessfully attempted to serve the document at the address of the applicant ’s advocate on CARDINAL and DATE . The delivery slip further indicates that the envelope was deposited at the post office on the latter date .

The advocate representing the applicant was on leave abroad DATE and DATE . The employee authorised to receive mail addressed to the advocate fell ill on DATE . A medical certificate indicates that she was on sick leave until DATE . A different employee of the advocate was on leave from DATE . She came back to work on CARDINAL DATE . On DATE the advocate ’s employee received the appellate courts’ judgment and signed the delivery slip to that effect .

The applicant ’s advocate explained that other employees had been present in the LOC on DATE . However , they were assigned to work in the context of bankruptcy proceedings entrusted to the advocate and they were not authorised to receive mail on his behalf .

On DATE ORG put a stamp on the appeal judgment indicating that it had become final on DATE .

On DATE the applicant filed an appeal on points of law against ORG judgment . She argued that the appellate court had failed to establish the relevant facts and that its decision was arbitrary .

The Prešov District Court submitted the appeal on points of law to ORG on DATE . The accompanying letter stated that the appellate court ’s judgment had become final on CARDINAL DATE and that the appeal on points of law had been filed within DATE from that date as required by the law .

On DATE ORG rejected the appeal on points of law as having been lodged belatedly . ORG , with reference to the file , held that an attempt to serve ORG judgment on the parties’ lawyers had been made on DATE . However , the addressees could not be reached at their respective address . A second attempt to serve the judgment on CARDINAL DATE had failed notwithstanding that the addressees had been staying at the places of service . The envelopes with the judgment had therefore been deposited at the post office and the addressees had been notified thereof . As the addressees had not withdrawn the mail at the post office within DATE from the moment of its deposit there , DATE of this period , that is DATE , was to be considered as the date of service in accordance with Article CARDINAL ) of LAW . The DATE timelimit for filing an appeal on points of law had therefore expired on DATE .

On DATE the applicant requested the Prosecutor General to file an extra - ordinary appeal on points of law on her behalf . She argued that ORG had proceeded arbitrarily when concluding that the appeal on points of law had not been filed in time . In particular , the applicant submitted that her lawyer had been abroad on leave from DATE to CARDINAL DATE and that his employee authorised to receive the mail had been on sick leave DATE and DATE . The judgment had been received on DATE and no notification of its deposit at the post office had been found in the lawyer ’s office . The applicant argued that the requirement making service by default of a judgment subject to the addressee ’s presence at the place of service had not been met in her case .

On DATE ORG informed the applicant that an extra - ordinary appeal on points of law was not available in the case .

Subsequently the applicant complained to ORG that the name of the defendant company was incorrectly indicated in the decision of DATE . On DATE ORG issued a decision by which it rectified that mistake .

On DATE the applicant claimed compensation from the advocate who had represented her in the above proceedings . She maintained that , as a result of the advocate ’s failure to file the appeal on points of law in time , she had been prevented from recovering compensation for lost salary which had been the subject - matter of those proceedings .

On DATE the ORG dismissed the action . ORG in Prešov upheld this judgment on DATE . The courts held that the applicant had not shown that she would have succeeded in the proceedings had the cassation court quashed the appellate judgment .

On DATE the applicant filed a complaint to ORG . She claimed that ORG decision of CARDINAL DATE was void as the defendant had been incorrectly indicated in it . The applicant also complained under LAW that her claim for compensation filed against the advocate had not been determined in an appropriate manner .

On DATE ORG rejected the applicant ’s complaints about ORG decision of DATE and the ORG judgment of DATE as they had been filed beyond the statutory DATE time - limit from the delivery of those decisions . ORG further held that the ORG judgment of DATE was not arbitrary .

Article CARDINAL ) provides that , where a document is to be notified to an addressee in person and the addressee has not been reached notwithstanding that he or she is staying at the place of service , the person delivering the document shall inform the addressee in an appropriate manner that a second attempt to deliver it will be made at a time indicated in the notification . Where such a new attempt to serve the document fails , the person in charge of the delivery shall deposit the document at the post office or with a municipal body and shall notify the addressee thereof in an appropriate manner . Where the addressee fails to withdraw such a document within DATE from its deposition , DATE of this term is considered as DATE of service even if the addressee did not learn that the document had been deposited with the post office or a municipal authority .

Pursuant to Article CARDINAL(CARDINAL ) , a certified copy of a judgment is to be served on the parties or , as the case may be , on their representatives in person .

Under paragraph CARDINAL of Article CARDINAL , a judgment with reasons is to be prepared in writing and dispatched to the parties within DATE from its oral delivery unless the president of the court decides otherwise for important reasons .

Article CARDINAL(CARDINAL ) provides that a judgment which can not be challenged by means of an appeal is final .

Pursuant to Article CARDINAL ) , an appellate court ’s judgment modifying a first instance judgment on the merits of a case can be challenged by means of an appeal on points of law .

Article CARDINAL ) provides that a party can file an appeal on points of law within DATE from the final effect of an appellate court ’s decision . An appeal on points of law is to be filed with the court which decided the case at first instance . Under paragraph CARDINAL of Article CARDINAL , there can be no exemption from the time - limit laid down in paragraph CARDINAL . Where , however , an appeal on points of law is filed with the court of appeal or court of cassation within DATE from the final effect of the appellate court ’s decision , the time - limit is deemed to have been complied with .

A document to be served on a party in person is not deemed to have been served by default under LAW where the addressee was not residing at the place of delivery at the time when the attempt to deliver the document to him or her was made ( Collection of opinions , conclusions , analyses and assessments of judicial practice , No . IV , p. CARDINAL and also ORG Collection CARDINAL/CARDINAL ) .

Where the requirements of Article CARDINAL ) of LAW for service by default of a document have been complied with , such a document is considered to have been served on DATE from the moment when it was deposited with the competent authority regardless of the date when the addressee actually received it ( ORG Collection CARDINAL/CARDINAL and CARDINAL ) .

In a judgment of CARDINAL DATE ORG , in the context of proceedings under LAW , clarified the requirements for service by default of a document which was to be delivered to the addressee in person . It held , in particular , that the requirement that the addressee should reside at the place where the document was to be served was not met where the addressee was either outside that place , for example on leave or a business trip , or where his or her health condition prevented the addressee in an objective manner from coming to the place of delivery of the document ( ORG Collection CARDINAL/CARDINAL ) .


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Non-pecuniary damage - award

André Potocki;Angelika Nußberger;Corneliu Bîrsan;David Thór Björgvinsson;Dean Spielmann;Egbert Myjer;Erik Møse;Françoise Tulkens;Ganna Yudkivska;Isabelle Berro-Lefèvre;Josep Casadevall;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Nicolas Bratza;Nona Tsotsoria;Paulo Pinto De Albuquerque;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

Under the German Federal Hunting Act ( ORG ) , owners of hunting grounds with a surface area of CARDINAL hectares are de jure members of a hunting association ( ORG ) , while owners of larger plots of land manage their own hunting district . The applicant owns CARDINAL landholdings in GPE - Palatinate of QUANTITY each , which he inherited in DATE from his late mother . He is thus a de jure member of a hunting association , in this case the hunting association of the municipality of Langsur .

On DATE the applicant , who is opposed to hunting on ethical grounds , filed a request with the hunting authority seeking to terminate his membership of the hunting association . The authority rejected his request on the grounds that his membership was prescribed by law and that there was no provision for the termination of membership .

The applicant brought proceedings before ORG . Relying in particular on the ORG ’s judgment in the case of PERSON and Others v. GPE ( [ ORG ] , ORG . ORG , CARDINAL and CARDINAL , ECHR CARDINALIII ) , he requested ORG to find it established that he was not a member of the hunting association of the municipality of Langsur .

On DATE ORG rejected the applicant ’s request . It considered that LAW did not violate the applicant ’s rights . With regard to the PERSON judgment , ORG took the view that the situation in GPE differed from that in GPE . It observed , in particular , that NORP owners of hunting grounds were able , by virtue of their membership of the hunting association , to influence the decision - making process as to how the relevant hunting rights should be exercised . Furthermore , they had the right to receive a share of the profits derived from the exercise of those hunting rights . All owners of plots which were too small to allow proper management of hunting rights joined a hunting association . The court further considered that the hunting associations not only served the leisure interests of those who exercised the hunting rights , but also imposed certain specific obligations on them which served the general interest , in particular a duty to manage game stocks with the aim of maintaining varied and healthy game populations and a duty to prevent damage caused by wild game . They were further obliged to comply with specific quotas set by the authorities for the hunting of game . These duties applied in the same way to the owners of hunting grounds of QUANTITY , notwithstanding the fact that these bigger plots were not grouped together in common hunting districts .

On DATE and DATE the Rhineland - Palatinate Administrative Court of Appeal and ORG dismissed the appeals lodged by the applicant , on the same grounds as ORG .

On DATE ORG ( CARDINAL BvR CARDINAL/CARDINAL ) refused to admit a constitutional complaint by the applicant for adjudication . It noted at the outset that the provisions of LAW did not violate the applicant ’s right to the peaceful enjoyment of his property , but defined and limited the exercise of that right in a proportionate manner . The relevant provisions pursued legitimate aims , were necessary and did not impose an excessive burden on landowners .

When defining the content and limits of property rights , the legislature had to weigh the landowners’ legitimate interests against the general interest . It had , in particular , to respect the principles of proportionality and equal treatment . The limitations imposed on the exercise of property rights must not infringe the core area of the protected right . The margin of appreciation allowed to the legislature depended on the specific context ; the more important the social considerations , the wider the margin of appreciation .

Applying these principles to the instant case , ORG considered that the applicant ’s compulsory membership of a hunting association did not violate his property rights . The core area of that right had not been infringed . LAW pursued the legitimate aims of preserving game in a manner adapted to the rural and cultural environment and ensuring healthy and varied wildlife , aims encompassed in the notion of “ management and protection of game stocks ” ( PERSON ) . Under LAW , gamekeeping was a means not only of preventing damage caused by wildlife , but also of avoiding any impediment to the use of the land for agriculture , forestry and fishing . These aims served the general interest .

Compulsory membership of a hunting association was an appropriate and necessary means of achieving those aims . Referring to paragraph CARDINAL of the PERSON judgment , cited above , ORG considered that ORG had acknowledged that it was undoubtedly in the general interest to avoid unregulated hunting and encourage the rational management of game stocks . Compulsory membership of a hunting association was also a proportionate means . The impact on property rights was not particularly serious and did not outweigh the general interest in the rational management of game stocks . Furthermore , LAW conferred on every member of the hunting association the right to participate in the decisionmaking process within the association and to receive a share of the profits derived from the leasing of the hunting rights .

The Constitutional Court further considered that there had been no violation of the applicant ’s right to freedom of conscience . It noted that in paragraph CARDINAL of the PERSON judgment ORG had accepted that the convictions of the applicants in that case attained a certain level of cogency , cohesion and importance and were therefore worthy of respect in a NORP society . ORG left open the question whether this assessment was correct in PERSON PERSON ’s case . It agreed , however , to take this assumption as a starting point as it considered that in any case there had been no violation of LAW ( see paragraph CARDINAL below ) . It was doubtful whether there had been any interference with the applicant ’s right to freedom of conscience . Even assuming that there had been , it was , in any event , not of a serious nature . As the applicant was not forced to participate in hunting himself and did not have to take any decision in that respect , the court considered that he had not been placed in a position of conflict of conscience . It further observed that the right to freedom of conscience did not encompass a right to have the entire legal order made subject to one ’s own ethical standards . If the legal order distributed the right to make use of a certain property among several stakeholders , the owner ’s conscience did not necessarily outweigh the other CARDINAL constitutional rights . If the applicant ’s landholding – and those of other owners who were opposed to hunting DATE were taken out of the common hunting districts because of the NORP convictions , the whole system of property ownership and management of game stocks would be jeopardised . The right to freedom of conscience did not outweigh the general interest in the instant case .

According to ORG , the applicant ’s complaint did not come within the scope of the right to freedom of association because NORP hunting associations were of a public nature . They were vested with administrative , rule - making and disciplinary prerogatives and remained integrated within ORG structures . There was thus no doubt that the association was not characterised as “ public ” simply in order to remove it from the scope of LAW .

The Federal Constitutional Court further considered that the applicant ’s right to equal treatment had not been breached . The administrative courts had put forward relevant reasons for drawing a distinction between the owners of landholdings of QUANTITY and those of QUANTITY ( see paragraph CARDINAL above ) . Contrary to the situation in GPE , which had been examined by ORG in the PERSON judgment , LAW applied to the whole of GPE and was binding on all landowners . The owners of land of QUANTITY had the same duties with regard to gamekeeping as those who belonged to hunting associations .

Finally , ORG observed that the administrative courts had considered the PERSON judgment and had emphasised the differences between NORP and NORP law as applicable at the relevant time .

Having been invited by the President of ORG to provide the ORG with additional information regarding the actual use of the applicant ’s land , the ORG submitted a declaration by the farmer who had taken out a lease on the agricultural land to which the applicant ’s plots belonged . The farmer submitted that she regularly used the land to raise cattle destined for slaughter . This was confirmed in a written statement by the mayor of the municipality of Langsur . The applicant submitted that he had visited the plots several times over DATE without ever seeing any cattle . He had never given permission for his land to be used in that way and would take legal action against any possible abuse .

The Basic PERSON provides :

“ ( CARDINAL ) Freedom of faith and conscience and freedom to profess a religious or philosophical creed shall be inviolable . ”

“ ( CARDINAL ) Property and the right of inheritance shall be guaranteed . Their content and limits shall be defined by the law .

( CARDINAL ) Property entails obligations . Its use shall also serve the public good . ”

“ Mindful also of its responsibility toward future generations , the ORG shall protect the natural foundations of life and animals through legislation and , in accordance with law and justice , through executive and judicial measures , all within the framework of the constitutional order . ”

“ ( CARDINAL ) On matters falling within the scope of concurrent legislative powers , the ORG shall have power to legislate so long as and to the extent that the GPE has not exercised its legislative powers by enacting a law .

( CARDINAL ) ...

( CARDINAL ) If the ORG has made use of its power to legislate , the ORG may enact laws at variance with this legislation with respect to :

hunting ( except for the law on hunting licenses ) ;

Federal laws on these matters shall enter into force no DATE following their promulgation unless otherwise provided with the consent of the Bundesrat . As regards the relationship between Federal law and the laws of the Länder , the more recent law shall take precedence in respect of matters coming within the scope of the first sentence . ”

Section CARDINAL(CARDINAL)(CARDINAL ) of the Civil Code provides :

“ Wild animals shall be ownerless as long as they are not in captivity . ... ”

Section CARDINAL of LAW ( Bundesjagdgesetz ) reads as follows :

“ ( CARDINAL ) Hunting rights shall comprise the exclusive rights to protect , hunt and acquire ownership of wild game in a specific area . Hunting rights shall be linked to a duty to manage and protect game stocks ( Pflicht PERSON ) .

( CARDINAL ) The management of game stocks shall be aimed at maintaining varied and healthy game populations at a level compatible with care of the land and with the prevailing cultural conditions and at preventing damage caused by game ...

( CARDINAL ) Persons engaging in hunting shall abide by the commonly accepted standards of the NORP ethical principles governing hunting ( deutsche PERSON ) .

( CARDINAL ) Hunting shall encompass the search for , pursuit , killing and catching of wild game .

LAW distinguishes between hunting rights ( PERSON ) and the exercise of hunting rights ( ORG des Jagdrechts ) . The landowner has hunting rights over his or her property . The exercise of hunting rights is regulated by the following sections of LAW :

“ Hunting rights may be exercised either in private hunting districts ( section CARDINAL ) or in common hunting districts ( section CARDINAL) . ”

“ The hunt shall be suspended on land which does not belong to a hunting district , and on enclosed properties ( befriedete ORG ) . Limited exercise of hunting rights may be permitted . This law does not apply to zoological gardens . ”

Section CARDINAL provides , inter alia , that plots of CARDINAL hectares which can be used for agriculture , forestry or fishing and which belong to a single owner constitute private hunting districts .

Section CARDINAL provides that all land which does not belong to a private hunting district constitutes a common hunting district if it has an overall surface area of QUANTITY . The owners of land belonging to a common hunting district are de jure members of a hunting association according to the following provisions :

“ The owners of land belonging to a common hunting district shall form a hunting association . The owners of land on which hunting is prohibited shall not belong to the hunting association . ”

“ ( CARDINAL ) The hunting association shall as a rule operate the hunt on a leasehold basis . The lease may be limited to the members of the association .

( CARDINAL ) The hunting association shall be allowed to lease out the hunting rights on its own account . With the agreement of the competent authority , it may decide to suspend the hunt ( Ruhen der Jagd ) .

( CARDINAL ) The association shall decide on the use to be made of the net profits from the hunt . If the association decides not to distribute them among the owners of the hunting grounds according to the amount of land they own , each owner who contests this decision shall be allowed to claim his or her share . ... ”

The practice of hunting is regulated as follows :

“ ( CARDINAL ) Hunting shall be prohibited in areas where it would , in the specific circumstances , disturb public peace , order or safety or endanger human life .

( CARDINAL ) Hunting in nature and wildlife conservation areas and in national and wildlife parks shall be regulated by the Länder . ”

“ The shooting of game is to be regulated in a manner which fully safeguards the legitimate interest of agriculture , fishery and forestry in being protected from damage caused by wild game , and which takes into account the requirements of the conservation of nature and the landscape . Subject to these restrictions , the regulation of game shooting shall contribute to maintaining a healthy population of all domestic game in adequate numbers and , in particular , to ensuring the protection of endangered species . ”

Liability for damage caused by game is regulated as follows :

“ If a plot belonging to a common hunting district or being incorporated in a common hunting district is damaged by cloven - hoofed game , wild rabbits or pheasants , the hunting association shall compensate the landowner for the damage . The cost of compensation shall be borne by the members of the association in proportion to the size of their respective plots . If the leaseholder of the hunt has assumed partial or full liability for compensation in respect of game damage , he or she shall be liable . The hunting association shall remain liable if the person who sustained the damage is unable to obtain compensation from the leaseholder . ”

“ ( CARDINAL ) Hunting association are public - law corporations . They are subject to ORG supervision , exercised by the local hunting authority ... Each hunting association shall create its own statutes ( ORG ) . The statutes must be approved by the supervisory authority unless they are in accordance with the model statutes issued by the highest hunting authority ; in this case , notice of the statutes shall be given to the local hunting authority . If the hunting association fails to create statutes within DATE after the issue of the model statutes , the supervisory authority shall create and publish them ... at the association ’s expense .

( CARDINAL ) Cost orders ( ORG ) shall be enforced in accordance with the provisions of the law on the enforcement of administrative acts . The powers of enforcement shall be exercised by the treasury office responsible for enforcing the claims of the municipality in which the association is situated ... ”

NORP The research undertaken by the ORG in relation to CARDINAL ORG member GPE shows that membership of a hunting association is not compulsory in CARDINAL countries ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , “ the former GPE ” , GPE , GPE and GPE ) . In GPE , GPE and GPE membership of a hunting association is obligatory in principle . The legislation in GPE and in GPE makes no provision for hunting associations . Lastly , hunting is not practised in GPE .

Considerable differences exist between these member States’ laws as regards the obligation for landowners to tolerate hunting on their land . Of the CARDINAL member States in which hunting is practised , DATE ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , “ the former GPE ” , GPE and GPE ) do not oblige landowners to tolerate hunting , while CARDINAL others ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) do . However , both groups provide for exceptions of varying degrees to their respective rules . In GPE and GPE , the obligation to tolerate hunting depends on the specific situation regarding the plot of land and on administrative decisions . In GPE , there is no legislation governing the obligation to tolerate hunting .

In CARDINAL member GPE the legislation or case - law has been amended following the ORG ’s judgment in the case of PERSON and Others , cited above . In GPE , under LAW of DATE , owners of land who are opposed to hunting for ethical reasons may , under certain conditions , request the termination of their membership of a hunting association . In GPE , following a ruling by ORG , section CARDINAL ) of LAW ceased to apply on DATE . Under this provision , landowners could object to hunting on their land only in cases where it might cause damage to their crops or forest land . In GPE , in the wake of the judgments in GPE v. GPE ( no . CARDINAL , DATE ) and PERSON and Others , cited above , LAW of DATE was repealed and a new LAW entered into force on DATE . It provides that landowners opposed to hunting on their land may , under certain conditions , request termination of their membership of a hunting association . Lastly , in GPE , ORG ruled on DATE that the administrative authority had to decide whether land could be included in a hunting district by weighing the different interests at stake in the light of the principles set out in the PERSON judgment .


Violation of Art. 10;Violation of Art. 6-1;No violation of Art. 18;Non-pecuniary damage - financial award;Costs and expenses partial award

At the material time , the applicant was the owner and editor of a DATE review entitled Haberde Yorumda Gerçek ( ORG and Comments ) , published in GPE .

On DATE ORG ordered the seizure of the CARDINAL edition of the review , dated DATE , on the ground that an article therein entitled PERSON contained separatist propaganda . The article read :

“ PERSON ulusun toptan yok edilmesini izliyoruz . PERSON soykırım izliyoruz PERSON , bugüne kadar başka örneği görülmemiş desek yanlış olmaz .

PERSON savaşın dişlileri arasında inim inim inliyoruz . Savaşa karşı çıkmak gerektiğini bildiğimiz halde öfkemizi haykırmak , kirli savaş dişlilerini parçalamak yerine inim inim inliyoruz . Ağıt yakıyoruz sadece . PERSON övgü dizmeye çalışıyoruz ölüm sessizliğinde . GPE esintisinden , yaprak hışırtısından odalarımıza korku taşınıyor . Yüreklerimiz hop oturup hop kalkıyor . Ölüm korkusunda ölüme övgüler dizerken devlete teslim oluyoruz .

PERSON esintisinde sıcak çaylarımızı yudumlarken yürüttüğümüz hararetli tartışmalarımızda , kavgacı kesiliyoruz birden . GPE kaderlerini tayin hakkı diyoruz . Bu hakkın kullanılması önünde hiçbir engelin olmaması gerektiğinden söz ediyoruz . PERSON realitesinin tanınmasının önemli bir adım olduğunu açıklamaya çalışıyoruz . Ortadoğu’da savaşın nedeni NORP emperyalizmidir . Ve biz savaşa karşı çıkmanın insanlığın bir gereği olduğunu düşünüyoruz . Namaz dağları , PERSON ve ORG ve daha niceleri bombalanıyor bu sırada . GPE alev alev yanıyor . PERSON hızıyla sürüyor . PERSON ekranlardan Bosna’da yaşanan vahşeti izliyoruz .

PERSON birden . İnsan hakları savunucusu kesiliyoruz . Kimyasal silahlar kullanılıyor ORG dağlarında . “ PERSON üstünde taş bırakmayacağız ” diyor askeri yetkili . PERSON ulusu toptan yoketme isteklerindeki kararlılık çınlıyor kulaklarımızda . “ PERSON değil batıda da operasyonların sürdürüleceğini , teröristlere yardımcı olanların haklarından gelineceğini ” ekliyor konuşmasına ve tabii basının kulağını çekmeyi de ihmal etmiyor . İşte burada , bir kirli savaşın söylemlerimizdeki yenilgiye mahkum akibetini , savaşa karşı çıkmanın tek ama tek yolunun haklı savaşın yürütülmesi gerektiği doğrusunu unutuyoruz . Unutmak istiyoruz . Tendürek’e düşen bomba , yüreğimizde patlıyor . “ NORP ” diyor içimizden biri . “ PERSON kanın dökülmesi ORG ? Kürt ve Türk ulusları kardeş değil mi ? ” diye ekleyerek başlıyor bilinen konuşmasına .

Hep bu konuşmayı bekliyormuşuz da , birbirimizden haberimiz yokmuş meğer . Her birimiz ayrı ayrı ve sanki farklı şeyler söylüyormuşuz gibi korkularımızı açığa vuruyoruz . ORG DATE hizmetinde kusur etmemeye itina gösteriyoruz . Türk şovenizminin asla onaylanmadığını ama , ORG onaylanamayacağını anlatıyoruz hep bir ağızdan . Ezilen ulusun şovenizminin olmayacağını bile bile lades yapmaya çalışıyoruz . Kürt meselesinin çözümünde barışçıl yolların denenmesi gerektiğini vaaz ediyor , çözümün ne olabileceğini tartışıyoruz , büyük pişkinlikle .

ORG sayfalarını ORG yaylasını basan “ teröristlerin ” , kadınları , çocukları ORG öldürdüklerini anlatan düzmece haberlerle dolduruyoruz . PERSON verilen brifingden kamuoyunun bilgisi olmadığı bilgisizliğiyle köşe yazılarımızda Kürt ve Türk vatandaşların yüzyıllar boyunca kardeşçe bir arada yaşadığını , oysa “ teröristlerin ” emellerinin bu kardeşliği yıkmak olduğunu anlatıyoruz demokratça ! PERSON özgürlük yürüyüşüne geçen Kürt köylüsünün tavrına .

Biz aydın insanlarız . ORG elden bırakmayız . PERSON ölmüş ? PERSON hizmeti de esas alırız . GPE aptal biliriz . PERSON mürekkep yalamışlığımız bizi onlardan farklı kılar .

Bu bir itiraftır .

Biz aptalız . ”

< translation >

“ We are watching the wholesale extermination of a nation . We are watching a genocide on such a scale that it is not a mistake to call it unprecedented .

We are groaning between the cogwheels of a dirty war . We know we should take a stand against the war , but instead of shouting out our anger and smashing the cogwheels , we are groaning . We only wail . We try to praise death in the deathly silence . Fear seeps into our rooms from the whisper of the breeze and the rustle of leaves . Our hearts jump in our throats . We surrender to the ORG while we praise death in fear of death .

We suddenly become quarrelsome during our feverish discussions and while sipping our hot tea in the cool breeze of the air conditioner . We talk about the right to selfdetermination of nations . We are saying that there should be no impediment to the exercise of this right . We try to explain that recognition of NORP reality is an important step . The reason for war in the middle - east is NORP imperialism and we think that to stand up against this war is a requirement for being a human being . The Namaz mountains , the Tendürek , the ORG and many others are being bombed at this moment . GPE is blazing . The genocide pounds on . We watch the terror in GPE on our colour TV screens .

Suddenly we are full of anger . We become human rights advocates . Chemical weapons are being used on the ORG mountains . ‘ We will not leave a stone ORG says a military authority . Their determination to exterminate a whole nation echoes in our ears . ‘ ORG will be conducted not only in the south - east but also in the west . We ’ll deal with the people who help the ORG he adds , and of course makes sure to tip off the press . Here we forget that in our own words a dirty war can only end in defeat . We [ also ] forget the axiom that the only way to oppose a war is to wage a just war . We want to forget it . The bomb falling on ORG explodes in our hearts . ‘ What a pity’ says CARDINAL of us . ‘ Why shed so much blood ? Are n’t NORP and NORP nations brothers?’ And he begins his usual speech .

We seem to have been waiting for that speech all the time , but we were not aware of one another . We each confess our fears as if we are saying different things . We take great care to serve the army officer faultlessly . We chorus that we have never approved of NORP chauvinism but can not approve of NORP chauvinism either . We turn a blind eye to the fact that an oppressed nation can not be chauvinistic . We brazenly preach the necessity of trying peaceful methods to resolve the NORP problem and discuss what the solution might be .

We fill the pages of our newspapers with bogus news of the ORG raid on the ORG plateau and details of how they killed women and children . Oblivious of the fact that the public at large knows nothing of the briefing given to the press , we democratically explain in our newspaper columns that NORP and NORP citizens have lived together in brotherhood for DATE and that the terrorists’ aim is to undermine that brotherhood . And we denigrate the attitude of the NORP peasants who started a freedom march .

We are intellectuals . We shall not give up the NORP ’s way of life . But who ever died of a lie ? We also make it our rule to serve the ORG . We consider people stupid . Our many years of ink - licking make us different from them .

This is a confession .

We are stupid . ”

In an indictment dated DATE ORG at ORG ( GPE PERSON ) charged the applicant with having disseminated propaganda against the indivisibility of the ORG by publishing the above article . The charges were brought under section CARDINAL of the Prevention of Terrorism Act DATE ( hereinafter “ the DATE LAW ” , see paragraph CARDINAL below ) .

In the proceedings before ORG , the applicant denied the charges . She pleaded that the article did not contain separatist propaganda . She alleged that the institution of criminal proceedings against her , as the owner and the responsible editor , was aimed at punishing the review since no investigation was opened against the author of the impugned article whose picture appeared above it . The applicant referred to LAW and argued that section CARDINAL of the DATE Act restricted her right to freedom of expression in contravention of both LAW and LAW .

In a judgment dated DATE ORG , composed of CARDINAL judges including a military judge , found the applicant guilty of an offence under section CARDINAL § CARDINAL of the CARDINAL Act . The court sentenced the applicant to CARDINAL months’ imprisonment and a fine of MONEY ( “ TRL ” ) , to be paid in CARDINAL DATE instalments . It also ordered confiscation of the offending publication .

In its reasoning , the court held that the impugned article had referred to a certain part of NORP territory as “ GPE ” , had asserted that people living there were NORP citizens , that the NORP nation wanted to be exterminated , that genocide had taken place , that the territory defined as “ NORP ” had been bombed and burned and that chemical weapons had been used . On these grounds , the court found that the article , as a whole , disseminated propaganda against the indivisibility of the ORG .

NORP The applicant appealed against her conviction . On DATE ORG dismissed her appeal . It upheld ORG assessment of the evidence and its reasons for rejecting the applicant ’s defence . On DATE the judgment was served on the applicant .

Following the amendments made by PERSON no . CARDINAL of DATE to the DATE LAW see paragraph CARDINAL below ) ; ORG ex officio re - examined the applicant ’s case . On DATE the court imposed the same sentence on the applicant . The applicant appealed .

On DATE ORG quashed the judgment of DATE on the ground that ORG had not commuted the applicant ’s sentence of imprisonment to a fine .

On DATE ORG decided to defer the imposition of a final sentence pursuant to LAW no . CARDINAL of DATE . The court held , under section CARDINAL of the same law , that the criminal proceedings against the applicant would be suspended and a final sentence imposed should the applicant be convicted of a further intentional offence in her capacity as an editor within DATE of this decision .

On DATE ORG also found the author of the impugned article , PERSON , guilty of an offence under LAW § CARDINAL of the CARDINAL Act . It sentenced him to DATE , DATE and CARDINAL days’ imprisonment and a fine of CARDINAL GPE . However , the court suspended the author ’s sentence taking into account his good conduct in the past , the likelihood that he would not commit any further offence and the fact that he was not a recidivist .

A full description of the relevant domestic law may be found in the NORP ( No . CARDINAL ) v. GPE judgment ( [ ORG ] , no . CARDINAL , § § DATE , ORG ORG ) .

Section CARDINAL of the Prevention of Terrorism Act DATE ( Law no . CARDINAL of DATE ) creates the offence of undermining the territorial integrity of GPE or the indivisible unity of the nation through written and spoken propaganda , meetings , assemblies and demonstrations , irrespective of the methods used and the intention . Any person who engages in such an activity may be sentenced to imprisonment or a fine , which for a press editor nowadays may be up to DATE imprisonment and a fine of MONEY .

Law no . CARDINAL of DATE amended LAW DATE to require the re - examination of the cases of persons convicted under the aforementioned LAW with a view to imposing substitute penalties or measures to imprisonment . Editors who had been convicted before DATE of a Section CARDINAL offence were later entitled to a suspended sentence for DATE , provided that no further offences were committed , pursuant to PERSON no . CARDINAL of DATE .

Article CARDINAL of the LAW requires all judges to perform their duties independently . ORG were established by LAW to try offences “ against the territorial integrity of the ORG or the indivisible unity of the nation or against the free democratic system of government , and offences which directly affect the ORG ’s internal or external security . ”

According to Sections CARDINAL and CARDINAL of Law no . CARDINAL on the creation and rules of procedure of ORG , such courts shall be composed of a president , CARDINAL other regular members and CARDINAL substitute members , appointed for DATE renewable periods . At the material time , CARDINAL regular member and CARDINAL substitute were military judges of the first rank .

Appeals lie to ORG against ORG decisions .

NORP The careers of military judges , according to LAW ( Law no . CARDINAL ) , depend on assessments by the Minister of ORG in ORG , or PERSON . Section CARDINAL of that LAW provides that military judges are to be appointed “ by a committee composed of the personnel director and the legal adviser of ORG , the personnel director and the legal adviser attached to the staff of the arm in which the person concerned is serving and ORG at ORG … . ” It is an offence under LAW for a public official to attempt to influence the performance by a military judge in the exercise of his judicial functions . Military judges are subject to officer salary scales and discipline by ORG CARDINAL and CARDINAL ) . Career disputes concerning military judges are ultimately determined by ORG ( Section CARDINAL of Law no . DATE of DATE on ORG ) .

Amendments made by PERSON no . CARDINAL of DATE and PERSON no . CARDINAL of DATE removed military judges from the bench of ORG .

The applicant alleged that the authorities had unjustifiably interfered with her right to freedom of expression guaranteed by LAW , which provides :

“ CARDINAL . Everyone has the right to freedom of expression . This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers . This Article shall not prevent GPE from requiring the licensing of broadcasting , television or cinema enterprises .

The exercise of these freedoms , since it carries with it duties and responsibilities , may be subject to such formalities , conditions , restrictions or penalties as are prescribed by law and are necessary in a NORP society , in the interests of national security , territorial integrity or public safety , for the prevention of disorder or crime , for the protection of health or morals , for the protection of the reputation or rights of others , for preventing the disclosure of information received in confidence , or for maintaining the authority and impartiality of the judiciary . ”

The Government maintained that the interference with the applicant ’s right to freedom of expression was justified under the provisions of the second paragraph of LAW . However , the ORG accepted the applicant ’s allegation .

The ORG notes that it is clear and undisputed that there has been an interference with the applicant ’s right to freedom of expression on account of her conviction and sentence under section CARDINAL of the Prevention of Terrorism Act DATE ( the “ CARDINAL Act ” ) .

This interference would contravene LAW unless it was “ prescribed by law ” , pursued CARDINAL or more of the legitimate aims referred to in paragraph CARDINAL of Article CARDINAL , and was “ necessary in a NORP society ” for achieving such aim or aims . The ORG will examine each of these criteria in turn .

The applicant did not comment on whether this requirement had been respected .

The Government maintained that the measures taken against the applicant were based on section CARDINAL of the DATE Act .

The Commission agreed with the ORG and found that the interference was prescribed by law .

The ORG , like the Commission , finds that since the applicant ’s conviction was based on section CARDINAL of the CARDINAL LAW the resultant interference with her freedom of expression could be regarded as “ prescribed by law ” , all the more as the applicant has not disputed this ( see , in this connection , Sürek ( No . CARDINAL ) v. GPE [ ORG ] , no . CARDINAL , § DATE , ORG ORG ) .

The applicant did not express a view on this point .

The Government contended that the aim of the interference in issue had been to maintain “ national security ” and “ public safety ” . The ORG accepted this view .

The ORG considers that , having regard to the sensitivity of the security situation in south - east GPE ( see the above - mentioned PERSON ( No.CARDINAL ) v. GPE judgment , § CARDINAL ) and to the need for the authorities to be alert to acts capable of fuelling additional violence , the measures taken against the applicant can be said to have been in furtherance of certain of the aims mentioned by the Government , namely the protection of national security and public safety . This is certainly true where , as with the situation in southeast GPE at the time of the circumstances of this case , the separatist movement had recourse to methods which relied on the use of violence .

The applicant pleaded that she should not have been punished for an article which she had not written . She further contended that the impugned article praised democracy and human rights and suggested that intellectuals should be more courageous in defending the latter . She maintained that the article did not advocate recourse to terrorism and violence but , on the contrary , it criticised the waging of terrorism against people . In the applicant ’s submission the measures taken against her amounted to an unjustified and disproportionate interference with her LAW right .

The Government asserted that the applicant disseminated separatist propaganda since the article in issue encouraged terrorist violence against the ORG . In support of their assertion the Government highlighted certain extracts from the article and contended that the phrase , “ we forget the axiom that the only way to oppose a war is to wage a just war ” was a clear incitement and encouragement to violence . In the ORG ’s submission , the author criticised intellectuals for defining “ innocent NORP peasants ” as “ terrorists ” and denigrating their march to freedom .

In the Government ’s opinion , the message which the article conveyed was that the only means for resolving the NORP problem was the maintenance of terrorist activities against the ORG , and that intellectuals should give the necessary support to such activities . The ORG argued that , in the context of a virulent terrorism campaign , the applicant should have refrained from disseminating propaganda aimed at supporting terrorist violence . They further submitted that the applicant had rightly been convicted under section CARDINAL of the DATE Act and that the measures taken against her properly fell within the authorities’ margin of appreciation in this area . The interference was accordingly justified under LAW .

The Government finally pointed out that the imposition of the final sentence on the applicant had been suspended , following the enactment of PERSON no . DATE of DATE , which aimed at providing for more lenient sanctions for offences committed through the medium of the press .

The Commission noted that the incriminated publication was an article by an intellectual whose statements contained sharp criticism of the policy and action of GPE with regard to its population of NORP origin . The author expressed his view on the NORP question and did not associate himself with the use of violence in the context of the NORP separatist movement . In the ORG ’s view , the measures taken against the applicant amounted to a kind of censorship , which was likely to discourage others from publishing similar opinions in the future . On this basis , the ORG found that there had been a violation of LAW .

The ORG recalls that in its PERSON v. GPE judgment of DATE ( Reports of Judgments and Decisions CARDINAL-VII , pp . DATE , § DATE ) and the above - mentioned NORP ( CARDINAL ) v. GPE judgment ( cited above , § MONEY ) , it summarised the basic principles established in its case - law concerning LAW :

( i ) Freedom of expression constitutes one of the essential foundations of a NORP society and one of the basic conditions for its progress and for each individual ’s self - fulfilment . Subject to paragraph DATE , it is applicable not only to “ information ” or “ ideas ” that are favourably received or regarded as inoffensive or as a matter of indifference , but also to those that offend , shock or disturb . Such are the demands of that pluralism , tolerance and broadmindedness without which there is no “ democratic society ” . As set forth in LAW , this freedom is subject to exceptions , which must , however , be construed strictly , and the need for any restrictions must be established convincingly .

( ii ) The adjective “ necessary ” , within the meaning of LAW , implies the existence of a “ pressing social need ” . GPE have a certain margin of appreciation in assessing whether such a need exists , but it goes hand in hand with NORP supervision , embracing both the legislation and the decisions applying it , even those given by an independent court . The ORG is therefore empowered to give the final ruling on whether a “ restriction ” is reconcilable with freedom of expression as protected by LAW .

( iii ) In exercising its supervisory jurisdiction , the ORG must look at the interference in the light of the case as a whole , including the content of the impugned statements and the context in which they were made . In particular , it must determine whether the interference in issue was “ proportionate to the legitimate aims pursued ” and whether the reasons adduced by the national authorities to justify it are “ relevant and sufficient ” .

The ORG notes in this connection that the nature and severity of the penalties imposed are also factors to be taken into account when assessing the proportionality of the interference ( see the Ceylan v. GPE judgment [ ORG ] , no . ORG , § DATE , ECHR CARDINAL-IV ) . In doing so , the ORG has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in LAW and , moreover , that they based themselves on an acceptable assessment of the relevant facts .

The ORG further observes that in the above - mentioned LANGUAGE ( No . CARDINAL ) v. GPE judgment ( § CARDINAL ) it reiterated that there is little scope under LAW § CARDINAL of the Convention for restrictions on political speech or on debate on questions of public interest . Furthermore , the limits of permissible criticism are wider with regard to the government than in relation to a private citizen , or even a politician . In a democratic system the actions or omissions of the government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of public opinion .

Moreover , the dominant position which a government occupies makes it necessary for it to display restraint in resorting to criminal proceedings , particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries . Nevertheless , it certainly remains open to the competent ORG authorities to adopt , in their capacity as guarantors of public order , measures , even of a criminal - law nature , intended to react appropriately and without excess to such remarks ( see the GPE v. GPE judgment of DATE , Reports CARDINAL-IV , p. CARDINAL , § CARDINAL ) . Finally , where such remarks incite people to violence , the ORG authorities enjoy a wider margin of appreciation when examining the need for an interference with freedom of expression .

Since the applicant was convicted of disseminating separatist propaganda through the review of which she was the editor , the impugned interference must also be seen in the context of the essential role of the press in ensuring the proper functioning of a political democracy ( see among many other authorities , the PERSON v. GPE judgment of DATE , Series A , no . CARDINAL , p. CARDINAL , § CARDINAL , and the abovementioned Sürek ( No . CARDINAL ) judgment , § CARDINAL ) . While the press must not overstep the bounds set , inter alia , for the protection of vital ORG interests , such as national security or territorial integrity , against the threat of violence or the prevention of disorder or crime , it is nevertheless incumbent on the press to impart information and ideas on political issues , including divisive ones . Not only has the press the task of imparting such information and ideas , the public has a right to receive them . Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders ( see the abovementioned PERSON judgment , p. CARDINAL § § , CARDINAL - CARDINAL ) .

The ORG stresses that the “ duties and responsibilities ” which accompany the exercise of the right to freedom of expression by media professionals assume special significance in situations of conflict and tension . Particular caution is called for when consideration is being given to the publication of views which contain incitement to violence against the ORG lest the media become a vehicle for the dissemination of hate speech and the promotion of violence . At the same time , where such views can not be so categorised , ORG can not , with reference to the protection of territorial integrity or national security or the prevention of crime or disorder , restrict the right of the public to be informed of them by bringing the weight of the criminal law to bear on the media ( see the ORG and PERSON v. GPE [ ORG ] , no . CARDINAL/CARDINAL , § DATE , ECHR CARDINAL-IV ) .

The ORG takes into account , furthermore , the background to cases submitted to it , particularly problems linked to the prevention of terrorism ( see PERSON v. GPE [ ORG ] , no . CARDINAL/CARDINAL , § DATE ) . On that point , it takes note of the NORP authorities’ concern about the dissemination of views which they consider might exacerbate the serious disturbances that have been going on in GPE for DATE .

The ORG notes that the applicant ’s review published an article which had been written by an intellectual who had expressed his views on the NORP problem . The impugned article contained a sharp criticism of the ORG ’s policy and of the action of their security forces with regard to the population of NORP origin . While alleging that intellectuals and the NORP press are denigrating the “ NORP peasants’ freedom march ” , the author criticised their overall view of the NORP problem . The author further suggested that the NORP reality should be recognised and peaceful methods tried in order to resolve the NORP problem instead of having recourse to military action . He regretted the shedding of blood in the course of armed conflict between NORP and NORP , since he considered them brother nations . He also expressed his disapproval of all types of chauvinism , including NORP and NORP forms .

The ORG notes in addition that , although certain phrases seem aggressive in tone , such as the one highlighted by the Government , the article taken as a whole does not glorify violence . Nor does it incite people to hatred , revenge , recrimination or armed resistance . On the contrary , the article is an intellectual analysis of the NORP problem which calls for an end to the armed conflict . In the ORG ’s view these are the essential factors which should be considered ( see the PERSON v. GPE judgment , cited above , § CARDINAL ) .

Furthermore , the ORG observes that the applicant was convicted by ORG not for incitement to violence , but for disseminating separatist propaganda by referring to a particular region of GPE as “ NORP ” and alleging that the population of NORP origin living in that region was subjected to oppression . In this regard , the ORG considers that the domestic authorities in the instant case failed to give sufficient weight to the public ’s right to be informed of a different perspective on the situation in south - east GPE , irrespective of how unpalatable that perspective may be for them . As noted above , the views expressed in the incriminated article can not be read as an incitement to violence , nor could they be construed as liable to incite violence . That being so , the reasons given by ORG for convicting the applicant , although relevant , can not be considered sufficient to justify the interference with her right to freedom of expression .

The ORG also observes that , notwithstanding the fact that the imposition of a final sentence on the applicant was suspended , she was nevertheless faced with the threat of a heavy penalty ( see the ORG and PERSON v. GPE judgment , cited above , § CARDINAL ) . For ORG , a decision or measure favourable to an applicant is not sufficient in principle to deprive him of his status as a “ victim ” unless the national authorities have acknowledged , either expressly or in substance , and then afforded redress for , the breach of the Convention ( see the GPE v. GPE judgment [ ORG ] , no . CARDINAL/CARDINAL , § DATE , ORG CARDINAL-VI ) .

In the instant case , however , ORG suspended the imposition of a final sentence on the applicant on condition that she did not commit any further offence as an editor within DATE of its decision ( see paragraph CARDINAL above ) . If the applicant fails to comply with that condition , she will automatically be sentenced for the original offence . In other words , the decision in question did not remove her status as a “ victim ” . On the contrary , the conditional suspended sentence had the effect of restricting the applicant ’s work as an editor and reducing her ability to offer the public views which have their place in a public debate whose existence can not be denied ( see , ORG v. GPE , no . CARDINAL , § DATE , to be published in DATE ; see also , mutatis mutandis , the ORG v. GPE judgment of CARDINAL DATE , Reports CARDINAL-VI , p. CARDINAL , § CARDINAL ) .

Having regard to the above considerations , the applicant ’s conviction was disproportionate to the aims pursued and , accordingly , not “ necessary in a democratic society ” . There has therefore been a violation of LAW .

The applicant complained that the presence of a military judge on the bench of ORG which tried and convicted her meant that she was denied a fair hearing , in breach of LAW , the relevant part of which provides :

“ In the determination of ... any criminal charge against him , everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law ... ”

The Government contested that allegation whereas the ORG accepted it .

In the applicant ’s submission , under the rules applicable at the time , the military judges appointed to ORG , such as ORG , were dependent on the Executive and the army as regards their appointment and careers . Such ties made it impossible for military judges to discharge their functions on the bench in an independent and impartial manner . The applicant further stressed that the independence and impartiality of military judges , and hence of the courts on which they sat , were compromised since these judges were unable to take a position which might be contradictory to the views of their commanding officers .

The applicant stated that these considerations impaired the independence and impartiality of ORG and prevented her from receiving a fair hearing , in violation of LAW .

The Government replied that the rules then in force governing the appointment of military judges to ORG and the guarantees which they enjoyed in the performance of their judicial functions on the bench were such as to ensure that these courts fully complied with the requirements of independence and impartiality within the meaning of LAW . The Government disputed the applicant ’s argument that military judges were accountable to their superior officers . In the first place , it was an offence under LAW for a public official to attempt to influence the performance by a military judge of his judicial functions ( see paragraph CARDINAL above ) . Secondly , the career assessments of military judges relate only to their non - judicial duties . Military judges have access to their assessment reports and are able to challenge their content before ORG ( see paragraph CARDINAL above ) . When acting in a judicial capacity , a military judge is assessed in exactly the same manner as a civilian judge .

The Government added that the fact that a military judge had sat in ORG had not impaired the fairness of the applicant ’s trial . Neither the military judge ’s hierarchical superiors , nor the public authorities which had appointed him to the court had any interest in the proceedings or in the outcome of the case .

The Government also impressed upon the ORG the need to have particular regard to the security context in which the decision to establish ORG was taken , pursuant to LAW . In view of the experience of the armed forces in the antiterrorism campaign , the authorities had considered it necessary to strengthen these courts by including a military judge in order to provide them with the necessary expertise and knowledge to deal with threats to the security and integrity of the ORG .

The Government further submitted that , by PERSON no . CARDINAL of DATE and PERSON no . CARDINAL of DATE , amendments had been made to remove military judges from the bench of ORG with a view to complying with the requirements of the LAW . The ORG stated that ORG are currently composed of civilian judges only .

The Commission concluded that ORG could not be regarded as an independent and impartial tribunal for the purposes of LAW . The Commission referred in this respect to the FAC v. GPE judgment of DATE ( Reports CARDINAL ) and the reasons supporting that judgment .

The ORG takes note of the changes made to the ORG system by virtue of PERSON no . CARDINAL of DATE and Law no . CARDINAL of DATE . However , for the purposes of the instant case it must confine its consideration to the legislation then in force and to the composition of ORG which tried and convicted the applicant .

The ORG reiterates that in its above - mentioned GPE v. GPE judgment of DATE ( p. CARDINAL ) and in its PERSON v. GPE judgment of CARDINAL DATE ( Reports CARDINAL-VII , p. CARDINAL ) , it had to address arguments similar to those raised by the Government in the instant case . In those judgments the ORG noted , on the one hand , that the status of military judges sitting as members of ORG did provide some guarantees of independence and impartiality ( see the above - mentioned ORG judgment , p. CARDINAL , § DATE ) . On the other hand , the ORG found that certain aspects of these judges’ status made their independence and impartiality questionable ( ibid . § DATE ) : for example , the fact that they are servicemen who still belong to the army , which in turn takes its orders from the Executive ; the fact that they remain subject to military discipline ; and the fact that decisions pertaining to their appointment are to a great extent taken by the administrative authorities and the army ( see paragraph CARDINAL above ) . The applicant mentioned some of these shortcomings in her observations .

As in its ORG judgment , the ORG considers that its task is not to determine in abstracto the necessity for the establishment of ORG in the light of the justifications advanced by the Government . Its task is to ascertain whether the manner in which ORG functioned at the material time infringed the applicant ’s right to a fair hearing , in particular whether , viewed objectively , she had a legitimate reason to fear that the court which tried her lacked independence and impartiality ( see the abovementioned GPE judgment , p. CARDINAL , § DATE , and the above - mentioned PERSON judgment , p. CARDINAL , § CARDINAL ) .

As to that question , the ORG sees no reason to reach a conclusion different from that in the cases of GPE . GPE and PERSON , both of whom , like the present applicant , were civilians . It is understandable that the applicant - prosecuted in a ORG for disseminating propaganda aimed at undermining the national security of the ORG and public safety - should have been apprehensive about being tried by a bench which included a regular army officer and member of ORG . On that account she could legitimately fear that ORG might allow itself to be unduly influenced by considerations which had nothing to do with the nature of the case . In other words , the applicant ’s fears as to that court ’s lack of independence and impartiality can be regarded as objectively justified . The proceedings in ORG were not able to dispel these fears since that court did not have full jurisdiction ( see the abovementioned NORP judgment , p.CARDINAL , § DATE in fine ) .

For these reasons the ORG finds that there has been a breach of LAW .

The applicant alleged that the restrictions on her right to freedom of expression , applied pursuant to section CARDINAL of the Prevention of Terrorism Act DATE , were inconsistent with the legitimate aims set out in LAW and were thus contrary to LAW , which provides :

“ The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed . ”

The Government did not address these allegations in their memorial .

The Commission found that the restrictions which were applied to the applicant ’s right to freedom of expression were consistent with the legitimate aims contained in LAW . Accordingly , there had been no violation of LAW .

For its part , the ORG does not see any reason for departing from the opinion of the ORG . It considers , therefore , that there has been no violation of LAW .

The applicant sought just satisfaction under LAW , which provides :

“ If the ORG finds that there has been a violation of the Convention or the Protocols thereto , and if the internal law of the High Contracting Party concerned allows only partial reparation to be made , the ORG shall , if necessary , afford just satisfaction to the injured party . ”

The applicant did not seek reparation for pecuniary damage but claimed ORG CARDINAL in respect of non - pecuniary damage . She alleged that she had to leave her country for GPE on account of the criminal proceedings against her , and was forced to live there as a refugee .

The Government did not comment on the applicant ’s claim .

The ORG considers that the applicant must have suffered a certain amount of distress , having regard to the circumstances of her prosecution , trial and conviction . Deciding on an equitable basis , it awards her the sum of ORG CARDINAL,CARDINAL which she claimed .

The applicant also claimed the sum of ORG CARDINAL,CARDINAL for her costs and expenses , comprising of ORG CARDINAL,CARDINAL for translations , postage fees and stationery , and ORG CARDINAL,CARDINAL for her lawyer ’s fees . She did not supply any particulars in support of her claims .

DATE . The Government expressed no opinion on the claim .

In view of the lack of substantiation of the claim , offset by the fact that the applicant clearly incurred some expenses , the ORG considers it reasonable to award the applicant ORG CARDINAL,CARDINAL by way of reimbursement of her costs and expenses .

According to the information available to the ORG , the statutory rate of interest applicable in GPE at the date of adoption of the present judgment is PERCENT per annum .


No violation of Art. 6-1 (composition of state security court);Violation of Art. 6-1 (non-communication of prosecutor's observations);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

The applicants were born in DATE and DATE respectively and were serving their prison sentences in Ordu prison at the time of their applications to the ORG .

On DATE the applicants were arrested and taken into custody by police officers at the Anti - terror branch of ORG on suspicion of membership of an illegal organisation , namely the ORG .

On DATE they were brought before a judge who ordered their remand in custody .

On DATE the public prosecutor at ORG filed a bill of indictment with the latter charging the applicants under LAW with membership of an illegal organisation .

The first hearing , held before ORG on DATE , in the applicants’ absence , was taken up with procedural matters , such as the measures to be taken for securing the presence of the accused .

On DATE the court heard the applicants . The first applicant stated that he accepted in part the accusations against him . In this respect he maintained , inter alia , that he had wanted to join the armed forces of the ORG and that he was apprehended , together with the coaccused , on his way to the rural area . The second applicant also stated , inter alia , that he was apprehended , together with the coaccused , before he had joined the rural cadre of the organisation . He maintained that he was a sympathiser of the organisation and not a member . Both applicants also repudiated the statements they had given to the police , claiming that they had been made under duress .

In the next hearing held on DATE the applicants stated that they had nothing to say . On DATE the court heard a witness and CARDINAL of the coaccused . The witness stated that he knew CARDINAL of the accused and that he had loaned his car to him . The applicants maintained that , in view of the judgment of ORG , they were boycotting the court and were not going to give any statements .

In the next hearing held on DATE , the first applicant submitted that he was neither a member nor a participant in any activity of the organisation in question and that he had been apprehended prior to attending a meeting with members of the organisation .

In the hearings held on DATE and DATE the second applicant stated that he had nothing to say . The first applicant requested the rectification of some of his words contained in TIME of the hearings .

In a hearing held on DATE the civilian judge who had been appointed to replace the military judge sat as a member of the trial court for the first time . At this hearing and DATE held on DATE , the court took some procedural decisions and heard several of the co - accused , including the second applicant who maintained that he had nothing to say .

In a hearing held on DATE the applicants submitted their written submissions in which they challenged , in particular , the veracity of their statements given in police custody .

On DATE before the court CARDINAL persons filed petitions to intervene as third - parties in the proceedings . The applicants reiterated their previous submissions .

At a hearing held on DATE the court accepted the request for the third - party intervention of QUANTITY persons . On DATE , the public prosecutor read out his observations on the merits . The public prosecutor , relying on the submissions of the applicants , the co - accused and the materials found during the applicants’ arrest , requested that the applicants be convicted and sentenced under LAW of LAW and LAW no . ORG . The applicants’ request for an extension of time to submit their observations on the merits was granted by the court .

At each hearing , the court examined and dismissed the requests of the applicants to be released .

On DATE the court heard the submissions of the applicants on the merits . The applicants also submitted CARDINAL pages of written submissions . On DATE the Erzurum ORG convicted the applicants as charged and sentenced them to DATE and QUANTITY months’ imprisonment .

On DATE the applicants appealed to ORG against the judgment of ORG . In their petition the applicants submitted arguments based on domestic law and , in particular , challenged the veracity of their statements to the police .

Following a hearing held on DATE , ORG dismissed the ORG appeal and upheld the judgment of the firstinstance court . This decision was pronounced , in the absence of the ORG representative , on DATE .

On an unspecified date , the applicants were released from prison .

The relevant domestic law and practice in force at the material time are outlined in the following judgments : PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , DATE ; ORG v. GPE [ ORG ] , no . CARDINAL/CARDINAL , § § CARDINAL , ORG CARDINAL- ... ; and PERSON v. GPE [ ORG ] , no . CARDINAL , § DATE , ORG CARDINALV.

On DATE Article CARDINAL of LAW was amended to provide that the written opinion of the principal public prosecutor at ORG be notified to the parties .

By PERSON no . CARDINAL of DATE , published in the Official journal on DATE , ORG were abolished .


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

Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE , GPE . In DATE he participated as a sprinter in the Olympic Games and from DATE , he was the president of ORG Homburg , a football club playing in ORG .

DATE the applicant was the sole shareholder and sole managing director of the ORG investment trust corporation which negotiated the sale of apartments to private investors . He later arranged for some of these apartments , which had been returned by the investors , to be taken up into funds managed by the IHV ORG .

The present application concerns criminal investigations instituted against the applicant and others related to the management of the real estate funds of ORG . Additional criminal proceedings were pending against the applicant in connection with his business activities for the ORG corporation and its arrangements made for the sale of apartments to private investors . On DATE the judgment of ORG acquitting the applicant of charges of fraud in this respect became final . The applicant also lodged an application with the ORG related to these proceedings ( no . CARDINAL/CARDINAL ) .

By a letter dated CARDINAL DATE , which reached the applicant on DATE , the GPE police headquarters summoned the applicant for questioning on charges of fraud in connection with his business activities for the ORG corporation . Thereby the applicant obtained knowledge of the criminal investigations instituted against him in this respect . ORG later joined several sets of proceedings concerning accusations of fraud against the applicant PERSON ( file no . CARDINAL Js CARDINAL/CARDINAL ) .

On DATE the GPE ORG order of CARDINAL DATE , made in the proceedings no . CARDINAL , to search the applicant ’s home and car was executed and a file was seized . The applicant was suspected of having at least instigated a partner of ORG to breach her fiduciary duty . The applicant had purportedly abetted that partner in respect of apartments , which had been returned to the ORG corporation having been bought by private investors at prices far above their market value , into the real estate funds managed by ORG .

On DATE and DATE and on CARDINAL and DATE , CARDINAL and DATE and CARDINAL DATE ORG questioned suspects on the charges related to ORG . In DATE and DATE ORG evaluated the documents seized in a note for the records .

On DATE ORG instituted further separate proceedings for fraud and breach of fiduciary duty against the applicant and others concerning the management of the funds of the IHV Real Estate Company ( file no . CARDINAL PERSON CARDINAL/CARDINAL ) . The accused persons in these proceedings were suspected of having committed fraud to the detriment of investors by including unmarketable apartments in the funds set up by the IHV Real Estate Company , thereby reducing the profitability of the funds . Moreover , they were suspected of breach of fiduciary duty by mismanaging the said funds , which operated at a loss .

NORP In a file note dated CARDINAL DATE ORG stated that the suspicion that fraud and breach of fiduciary duty had been committed in connection with the management of funds of the IHV ORG had already arisen in the proceedings no . CARDINAL . Several searches had been conducted on CARDINAL DATE and several persons had already been examined in the course of those proceedings . In so far as the investigation proceedings in file no . CARDINAL concerned charges of fraud in connection with the funds of ORG , they were separated from the said file and joined to the proceedings no . CARDINAL GPE CARDINAL/CARDINAL .

On DATE ORG questioned witness PERSON

On DATE , a specialist in economic offences at ORG , having examined the case file , concluded that several funds managed by ORG would always operate at a loss and that the investors had been deceived about the value of the funds .

On DATE the GPE ORG order of ORG CARDINAL DATE to search the homes of the applicant and of other co - accused was executed and several documents were seized .

NORP In DATE PERSON , another specialist in economic offences at ORG , as did PERSON , on DATE , submitted reports concerning the profitability of the funds in question , finding that in respect of several of them a suspicion of fraud prevailed .

In a letter to ORG dated CARDINAL DATE ORG explained the nature of the contracts concluded between ORG and the investors .

On DATE the GPE ORG ordered the seizure of further documents .

On DATE PERSON submitted another expert report , finding that there was a persistent lack of profitability of the funds managed by ORG .

On DATE and on DATE M. found that the prosecution of part of the offences had become time - barred , but that there still was a suspicion of fraud in respect of several funds managed by ORG . By submissions dated DATE and CARDINAL DATE the applicant contested these findings . He submitted an expert report drawn up by the ORG auditing company in support of his view .

In a note dated DATE expert PERSON contested the findings of the ORG auditing company .

On DATE and on DATE ORG asked the applicant to submit certain documents , which the latter refused to do in submissions dated DATE before re - inspecting the case file .

On DATE counsel for the applicant proposed that all investigation proceedings pending against the applicant be settled . The prosecution rejected that proposal on DATE .

On DATE ORG again requested the applicant to submit certain documents . In DATE the applicant initially agreed to do so before DATE , but subsequently failed to submit the documents in question .

On DATE ORG ordered the seizure of the balance sheets of ORG .

On DATE ORG questioned the applicant .

On DATE PERSON , another specialist in economic offences at ORG , disagreed with PERSON ’s conclusions and found that part of ORG funds actually seemed to be operating profitably .

On DATE the GPE ORG ordered another search , which was carried out on DATE .

On DATE and on DATE expert PERSON , having regard to further balance sheets seized , found that the funds examined had in fact yielded considerable profits .

On DATE ORG discontinued the proceedings against the applicant , partly pursuant to LAW ( see paragraph CARDINAL below ) , and partly pursuant to LAW of that LAW ( see paragraph CARDINAL below ) . It found that the prosecution of a part of the offences of which the applicant was suspected was time - barred . As to the suspicion that the applicant was guilty of a breach of fiduciary duty , ORG found that mismanagement of the funds concerned had not been proved , as the funds disposed of assets of a considerable value . There prevailed a suspicion of fraud in respect of part of the funds , as apartments had been bought for the funds at prices far above their market value . The proceedings should , however , be discontinued pursuant to LAW in this respect . The said apartments constituted only a small part of the assets of the fund , so the damage caused had to be considered minor . Moreover , the commission of the offences dated back a long time .

By a letter dated DATE ORG , having obtained the consent of ORG to discontinue the proceedings pursuant to LAW , notified the applicant that the investigation proceedings no . CARDINAL PERSON CARDINAL/CARDINAL against him had been discontinued .

LAW governs the discontinuance of criminal proceedings on the ground of insignificance . During the investigation proceedings ORG may discontinue the criminal proceedings if they concern an offence for which it is not mandatory to impose a sentence of DATE imprisonment ( PERSON ) , if the defendant ’s guilt would be of a minor nature and if there was no public interest in criminal prosecution . The court which has jurisdiction to open the main proceedings must consent to discontinuing the proceedings unless they concern offences which are not subject to an increased minimum penalty and the consequences ensuing from the offence are minor .

Pursuant to LAW , ORG may discontinue criminal proceedings concerning offences for which the regular minimum penalty is DATE imprisonment at the investigation stage with the defendant ’s consent , if the latter complies with certain conditions . These conditions must be suitable to remove the public interest in criminal prosecution and may not be in conflict with the severity of the defendant ’s guilt . Such conditions notably entail the payment of a sum of money to a non - profit - making organisation or to the ORG . The court which has jurisdiction to open the main proceedings must consent under certain circumstances . If the indictment has already been preferred with that court , the latter may discontinue the proceedings under the conditions set out in LAW with the consent of both ORG and the defendant ( LAW ) .

Article CARDINAL § CARDINAL of the Code of Criminal Procedure provides that ORG may dispense with prosecuting an offence if the penalty in which the prosecution might result is not particularly significant compared to a penalty which has been imposed with binding effect upon the defendant for another offence or which he has to expect for another offence . It may also dispense with prosecuting an offence if a judgment in respect of that offence is not to be expected within a reasonable time and if the penalty which has been imposed on the defendant with binding effect or which he has to expect for another offence appears sufficient to have an influence on the offender and to defend the legal order . Pursuant to LAW , the court may provisionally discontinue proceedings upon the request of ORG at any stage if charges have already been preferred . If the proceedings have been discontinued provisionally on account of a penalty which was to be expected for another offence , the proceedings may be resumed , unless barred by limitation in the meantime , within DATE after the judgment delivered in respect of the other offence has become final ( Article CARDINAL § CARDINAL of LAW ) .

Article CARDINALa § CARDINAL of LAW authorises ORG to limit prosecution to certain parts of an offence or certain breaches of the law if , in particular , other separable parts of the offence or other breaches of the law committed by the same act are not particularly significant for the penalty to be expected . The court may order such limitation with the consent of ORG at any stage of the proceedings after the bill of indictment has been filed ( Article CARDINAL § CARDINAL ) . The court may reintroduce into the proceedings those parts of the offence or breaches of the law which have not been considered at any stage of the proceedings ( Article CARDINALa § CARDINAL ) .

Pursuant to LAW ORG discontinues the criminal investigation proceedings if investigations show that there are not sufficient reasons to prefer an indictment . It notifies the accused of this if he has been questioned as accused , if an arrest warrant has been issued against him , if he has requested to be notified or if it is obvious that there is a special interest in notification .

Compensation for damage caused by wrongful prosecution is covered by LAW ( PERSON über die PERSON für Strafverfolgungsmaßnahmen ) .

Pursuant to section CARDINAL of that Act , a defendant is notably entitled to compensation for damage incurred by certain specified measures of criminal prosecution if he is acquitted , if the proceedings against him are discontinued or if the court refuses to open the main proceedings against him . The measures of criminal prosecution for which compensation may be granted notably comprise pre - trial detention and searches and seizures of property .

In cases in which proceedings have been discontinued pursuant to a provision allowing for discontinuance at the discretion of the prosecution or the court , the person concerned may be granted compensation for the measures listed in section CARDINAL if this issection CARDINAL of that Act ) . Compensation may be refused if the proceedings against the defendant have been discontinued due to an impediment to the proceedings ( see section CARDINAL § CARDINAL no . CARDINAL of that Act ) .

Section CARDINAL § CARDINAL of the Act on Compensation for Measures of Criminal Prosecution stipulates that pecuniary damage incurred as a result of the criminal prosecution measure is compensated for , as well as non - pecuniary damage in the event of a deprivation of liberty by a court decision . Once the court ’s finding that the ORG is under a duty to compensate has become final ( see section CARDINAL of the said Act ) , a compensation claim must be submitted within DATE to ORG which was last in charge of the investigations at first instance ( section CARDINAL § CARDINAL of the said Act ) .

Pursuant to LAW , taken in conjunction with LAW , an individual has the right to be compensated by the ORG for any damage arising from a breach of official duty committed by a public servant . These provisions are also applicable to a breach of duty in giving judgment on an action if the breach consists of a refusal to discharge a function or a delay in performing it contrary to professional duty .

Damages are afforded to the individual concerned in accordance with Articles CARDINAL et seq . of LAW . By LAW , in the version in force until DATE and applicable to damage caused up to that date , compensation for non - pecuniary damage can be awarded only if it is provided for by law . In this connection , LAW CARDINAL of LAW , in force until DATE , provided for non - pecuniary compensation only in the event of physical injury , damage caused to someone ’s health or deprivation of liberty . According to the established case - law of ORG , a claim for non - pecuniary damage can , moreover , arise in case of a serious violation of a person ’s personality rights ( ORG ) which can not be compensated for in another manner ( see , inter alia , ORG , no . III ZR CARDINAL/CARDINAL , judgment of DATE , ORG ( ORG ) DATE , pp . CARDINAL et seq . with further references ) . The new LAW , in force since DATE , which replaced LAW , has not introduced any amendments relevant to the matters in issue in the instant case .

According to the settled case - law of ORG , LAW , read in conjunction with the principle of the rule of law as enshrined in LAW of LAW , guarantees the right to expeditious criminal proceedings ( see , inter alia , that court ’s judgment of DATE , no . CARDINAL BvR CARDINAL/CARDINAL , § CARDINAL ; decision of DATE , no . CARDINAL BvR CARDINAL , § CARDINAL ; and decision of CARDINAL DATE , nos . CARDINAL BvR CARDINAL/CARDINAL , CARDINAL BvR CARDINAL/CARDINAL and CARDINAL BvR CARDINAL/CARDINAL , § CARDINAL ) . Moreover , penalties imposed on a defendant have to comply with the constitutional right to liberty guaranteed by LAW of LAW , read in conjunction with the principle of proportionality enshrined in the rule of law ( see , inter alia , ORG decision of CARDINAL DATE , nos . CARDINAL BvR CARDINAL/CARDINAL , CARDINAL BvR CARDINAL/CARDINAL and CARDINAL BvR CARDINAL/CARDINAL , § DATE ; decision of DATE , no . CARDINAL BvR CARDINAL/CARDINAL , § CARDINAL , and decision of CARDINAL DATE , no . CARDINAL BvR CARDINAL/CARDINAL , § CARDINAL ) .

As the legislator did not lay down any rules on the consequences of a violation of the right to expeditious proceedings , the criminal courts and the prosecution authorities are , as a rule , called upon to draw the necessary conclusions from undue delay in the proceedings . They may discontinue the proceedings pursuant to ORG CARDINAL and CARDINALa of the Code of Criminal Procedure , limit criminal prosecution pursuant to ORG CARDINAL and CARDINALa of LAW , terminate the proceedings either by dispensing with a penalty or by a warning with sentence reserved ( PERSON ) or take the length of the proceedings into account as a mitigating factor when fixing the penalty ( see ORG , judgment of CARDINAL DATE , no . CARDINAL BvR CARDINAL/CARDINAL , § § CARDINAL ; decision of CARDINAL DATE , nos . CARDINAL BvR CARDINAL/CARDINAL , CARDINAL BvR CARDINAL/CARDINAL and CARDINAL BvR CARDINAL/CARDINAL , § § DATE ; decision of DATE , no . CARDINAL BvR CARDINAL/CARDINAL , § § CARDINAL , and decision of DATE , no . CARDINAL BvR CARDINAL/CARDINAL , § § DATE ) . In exceptional cases , in which the delay in the proceedings was particularly serious and had led to a particular burden for the person concerned and in which the said options provided by the criminal law and the law on criminal procedure were insufficient , the proceedings may be discontinued because of a constitutional impediment to the proceedings ( see ORG , judgment of CARDINAL DATE , no . CARDINAL BvR CARDINAL/CARDINAL , § CARDINAL ; decision of DATE , no . CARDINAL BvR CARDINAL , § CARDINAL ; decision of CARDINAL DATE , nos . CARDINAL BvR CARDINAL/CARDINAL , CARDINAL BvR CARDINAL/CARDINAL and CARDINAL BvR CARDINAL/CARDINAL , § CARDINAL , and decision of DATE , no . CARDINAL BvR CARDINAL/CARDINAL , § CARDINAL ) . In the latter case , ORG may discontinue the proceedings itself ( see , inter alia , that court ’s decision of CARDINAL DATE , nos . CARDINAL BvR CARDINAL/CARDINAL , CARDINAL BvR CARDINAL/CARDINAL and CARDINAL BvR CARDINAL/CARDINAL , § CARDINAL , and decision of DATE , no . CARDINAL BvR CARDINAL/CARDINAL , § DATE ) .

Pursuant to section QUANTITY of LAW , complainants must exhaust the remedies available in the domestic courts prior to lodging a constitutional complaint . However , ORG may decide on a constitutional complaint lodged before the exhaustion of these remedies if the complaint is of general importance or if the complainant would otherwise suffer a serious and unavoidable disadvantage .


George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

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

CARDINAL .

On DATE a seventeenyearold NORP teenager was murdered at the Brussels Central train station . CARDINAL individuals , who attempted to steal his MPCARDINAL player , stabbed him CARDINAL times causing his death .

The applicant , who had been identified by surveillance cameras as CARDINAL of the attackers , at that time also DATE , fled GPE and was arrested in GPE on DATE . A NORP arrest warrant ( the EAW ) was issued against the applicant by the NORP authorities .

On DATE ORG ( PERSON ) decided to agree to the applicant ’s surrender to GPE on the basis of the ORG provided that after the trial he would be returned to GPE in order to serve his sentence . The decision was upheld on DATE by ORG .

The applicant was transferred to GPE on DATE .

On DATE the applicant was convicted by the first - instance court in GPE of armed robbery resulting in death and sentenced to DATE imprisonment .

On DATE the judgment was upheld by ORG .

The NORP authorities informed the NORP authorities that the applicant ’s sentence would come to an end on CARDINAL January DATE and that he could apply for conditional release as of DATE .

On DATE the applicant was transferred to GPE for the purpose of continuing his imprisonment .

On DATE ORG gave a ruling on the legal qualification of the offence under NORP law and on the enforcement of the sentence . It considered that the offences of which the applicant had been convicted in GPE fulfilled the description of offences prohibited by Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW Criminal Code . The court further considered that it was bound by the sentence imposed abroad , although DATE imprisonment did not appear in the range of penalties possible under NORP law . Finally , the court decided not to rule on the matter of conditional release as the NORP judgment did not include a provision on the length of the sentence the applicant would have to serve before he was eligible to apply for conditional release . Therefore , NORP rules on enforcement of sentences would apply to the case .

NORP The applicant appealed against the judgment . He complained in particular about the decision not to apply regulations pertaining to conditional release that were binding in the sentencing country , GPE .

On DATE ORG upheld the judgment . The court considered that matters of conditional release related to enforcement of the sentence and thus should not be dealt with at the instant stage . ORG reiterated that the sentencing judgment did not contain a provision regulating the date on which the applicant was eligible to apply for conditional release . Moreover , according to both NORP and NORP law , conditional release was facultative and depended on a positive criminological prognosis of the prisoner and his behaviour during the serving of the sentence . Conditional release should not be considered as a right automatically acquired if the conditions provided by law were fulfilled . The judgment is final .

Relevant articles of LAW ( the ORG ) read at the material time :

Article CARDINALs § MONEY the ORG :

“ ... In its decision the court indicates the qualification of the offence according to NORP law . The court is bound by the sentence given ... ”

Article CARDINAL t of the ORG :

“ CARDINAL . If the NORP arrest warrant was issued with the purpose of conducting a criminal prosecution of a person who is a NORP national or benefits from asylum in GPE , the surrender may be subject to the condition that the person is returned to GPE after final termination of the proceedings in the issuing Member ORG .

NORP If in the situation described above the person is sentenced to a penalty of deprivation of liberty ... the provisions of LAW shall apply . ”

Article CARDINAL § CARDINAL of ORG of DATE on the NORP arrest warrant and the surrender procedures between Member GPE ( LAW ) , dealing with guarantees to be given by the issuing Member ORG in particular cases , states as follows :

“ where a person who is the subject of a NORP arrest warrant for the purposes of prosecution is a national or resident of the executing Member ORG , surrender may be subject to the condition that the person , after being heard , is returned to the executing Member ORG in order to serve there the custodial sentence or detention order passed against him in the issuing Member ORG . ”