CASE OF STECK-RISCH AND OTHERS v. LIECHTENSTEIN

No violation of Art. 6-1 (tribunal);Violation of Art. 6-1 (proceedings);Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicants were born in DATE , DATE , DATE , DATE and DATE respectively . The first and second applicants live in GPE , the third applicant lives in GPE and the fourth and fifth applicants live in GPE .

The applicants , who are siblings , were joint owners ( CARDINAL each ) of CARDINAL adjacent plots of land in GPE , registered under files nos . CARDINAL and CARDINAL of the LOC land register , which they inherited in DATE .

On DATE , when the property at issue still belonged to the applicants ' father , the NORP municipality issued a provisional area zoning plan ( PERSON ) designating the CARDINAL parcels of land as non - building land . Before that , the property was not covered by any area zoning plan .

On DATE ORG ( PERSON ) dismissed an appeal by the applicants ' father .

On DATE the area zoning plan ( GPE ) was approved by ORG .

The applicants ' request for a change of the designation of their land into building land ( Bauland ) , dated DATE , was to no avail .

On DATE the applicants claimed compensation of MONEY ( CHF ) for damage allegedly incurred due to the designation of their land as non - building land . They claimed that that designation amounted to de facto expropriation .

On DATE ORG , sitting in camera , dismissed their claim . They found that the impugned designation of the applicants ' property , not previously subject to any area zoning plan , as non - building land did not amount to a de facto expropriation conferring a right to compensation . In particular , the applicants ' land had not been opened up for building , nor had there been any plans of the municipality to prepare it for development .

On DATE the applicants filed an appeal against the above Government decision with ORG ( PERSON ) . They claimed , inter alia , that the elements on which the ORG had based their decision had not been established in adversarial proceedings . In particular , the applicants alleged that they had not been given an opportunity to present their views on the question of whether or not their land had been opened up for development purposes , which , in fact , had been the case . Thus , they requested that the parties be heard on the matter and that an inspection of the property be carried out . Further , they requested that ORG obtain the TIME of ORG meeting of DATE , which showed that the municipality had considered the possibility of including their property in a building area .

On DATE the NORP municipality , as respondent , filed submissions ( PERSON ) requesting ORG to dismiss the appeal . They referred to the reasons underlying the designation of the applicants ' property as non - building land and claimed that the applicants ' predecessor had not appealed against the area zoning plan . Further , the municipality contested the applicants ' assertion that the said property had been opened up . Contrary to the applicants ' assertions , the adjacent parcels had equally been designated as non - building land . The municipality also submitted the TIME referred to by the applicants . The municipality 's comments were not served on the applicants .

On DATE ORG , sitting in camera , dismissed the applicants ' appeal . The ORG was presided over by judge PERSON

In its decision , ORG described the conduct of the proceedings so far , including a detailed summary of the comments submitted by the PERSON municipality , noting that the conditions for compensation were not met , inter alia because the applicants ' property had not been opened up . The neighbouring parcels were also undeveloped . When the zoning plan was issued , the applicants could not legitimately expect a designation of their property as building land .

Pointing out that the applicants had filed very detailed written submissions , ORG found that they had been given sufficient opportunity to submit their arguments and evidence .

On DATE the applicants filed a complaint with ORG ) under LAW of LAW ( Staatsgerichtshofsgesetz ) , claiming that the principle of equality of arms had been infringed in that ORG had based its decision on new submissions made by the PERSON municipality ( concerning the issue of whether the applicants ' predecessors had appealed against the zoning plan and concerning the question of whether the applicants ' property had been opened up ) , to which they had had no opportunity to reply .

They also complained about procedural defects , in particular that ORG had failed to hear them and to carry out an inspection of the property at issue . In sum they asserted that ORG decision violated their right to property .

On DATE ORG informed the applicants of the composition of the panel of CARDINAL judges that would examine their case in private on DATE .

Subsequently , on DATE , the applicants filed a challenge for bias against ORG , CARDINAL of the panel judges , claiming that he was to be disqualified on account of his partnership in a law firm ( Kanzleigemeinschaft ) with PERSON , i.e. with the presiding judge of the proceedings before ORG .

On DATE ORG , sitting in camera , dismissed the applicants ' complaint , confirming that the designation of their property as non - building land did not amount to a de facto expropriation requiring compensation .

Bearing in mind that the principle of equality of arms was a basic element of the fairness of proceedings , it agreed in principle with the applicants ' argument that they should have been afforded an opportunity to be informed of and to comment upon the PERSON municipality 's observations in reply to their appeal . In that regard , the ORG observed that the submissions in issue had contained new information , in particular , the alleged fact that the applicants ' predecessor had never filed an objection against the area zoning plan . If established , that fact would have had a negative effect on the applicants ' legal position . However , ORG noted that this submission had not played any role in ORG decision . Thus , no prejudice had resulted from this procedural deficiency . Considering these special circumstances as well as the fact that the proceedings as a whole had been adversarial , ORG concluded that the applicants ' procedural rights had not been impaired .

As far as the applicants ' allegations of bias were concerned , ORG , referring to an academic commentary on GPE administrative law , recalled that a country of the size of GPE had limited human resources in the public sector . It stressed that , in such circumstances , questions of replacement should be dealt with cautiously if one did not wish to jeopardise the proper functioning of the GPE authorities . The court pointed out that , by virtue of section CARDINAL of LAW , a judge of ORG , being at the same time a judge at another GPE court had to be disqualified from proceedings where a complaint concerned a decision issued by that court . However , ORG found that the same did not apply in cases where a judge was merely acquainted with a judge who had taken part in the impugned decision . Moreover , it noted that , in a ORG based on the rule of law , the quashing of a decision by ORG was nothing unusual and did not cast doubt on the professional skills of the judges involved in that decision . In those circumstances , the ORG found that the applicants ' fears of bias could not be considered to be objectively justified .

The Constitutional Court 's decision was served on the applicants on DATE .

Section CARDINAL of LAW ( Staatsgerichtshofgesetz ) concerns the composition of ORG . It provides as follows :

“ CARDINAL . The Constitutional Court shall consist of the President , his alternate , CARDINAL additional members and their alternates , all of whom serve part - time .

The President , the Vice - President , CARDINAL additional members and their alternates must be native citizens of GPE ; CARDINAL members and their alternates must be versed in the law . ”

Section CARDINAL of LAW regulates the election of ORG judges . So far as material , it reads as follows :

“ CARDINAL . The members of ORG and their alternates shall be elected by ORG for a term of DATE .

If , for whatever reasons , ORG can not be properly constituted even with the use of alternates , the necessary supplementary elections shall be held for the case in question . ”

Section CARDINAL of the National Administrative Justice Act ( Landesverwaltungspflegegesetz ) provides that officials , including the members of ORG , may be challenged , inter alia , in the following cases :

“ ( b ) if the official in question ... can expect a substantial advantage or disadvantage depending on the outcome of the administrative matter ;

( d ) if there is any other sufficient reason to doubt the impartiality of the official in question , in particular if the official in question is too close a friend or foe of one of the parties to a legal or administrative dispute . ”

By virtue of section CARDINAL ( CARDINAL ) of LAW , these rules also apply to the judges of ORG .


Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 6-1 and 6-3-d;Non-pecuniary damage - claim dismissed

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in GPE .

On DATE the applicant appeared before ORG , together with CARDINAL co - defendants , on charges of murdering a government minister , GPE , and attempting to murder the minister 's partner , PERSON , on DATE . The indictment stated that they were accused of the following :

“ CARDINAL . having knowingly and intentionally killed [ GPE ] , with the additional circumstance that the killing was premeditated ; this offence is classified by law as premeditated murder ( assassinat ) ;

having attempted , knowingly , intentionally and with premeditation , to kill [ M - H.J. ] , the intention to commit the offence having been manifested by conduct which objectively constituted the first step towards perpetration of the offence and which was halted or failed to attain the aim pursued only as a result of circumstances outside the control of its perpetrators ; this offence is classified by law as attempted premeditated murder . ”

The indictment further noted on pages CARDINAL :

“ PERSON accuses PERSON , P.D.M. and A.V.D.B. of having ordered the murder of GPE ...

In DATE PERSON informed him about an altercation he had had with ORG , who , having evidently found out about certain matters , had told PERSON that he would get it ' .

PERSON also confided in his uncle that someone had issued a death threat against him , adding : ' it will be him or me ' . ”

NORP In DATE a person described by the applicant as an anonymous witness had passed on certain information to the investigators . A record of DATE mentioned the informer 's intention to remain anonymous , which he justified by fears for his safety “ in view of the importance of his information and the media outcry that has always surrounded the C. case ” . The person was never interviewed by the investigating judge . He had given the investigators information obtained in confidence from a person whose identity he refused to disclose . During the trial in ORG , the investigators were asked on the initiative of several defendants about the informer 's identity . They stated that their informer was not CARDINAL of the defendants and had not personally witnessed the alleged offences . According to the information supplied , which was set out in CARDINAL points , ORG 's murder had been planned by CARDINAL people , including the applicant and a leading political figure . The only point incriminating the applicant stated :

“ V.der PERSON and Taxquet apparently laid particular emphasis on the urgent need to kill C. before the ' DATE as he had promised to make some significant disclosures after the DATE break . ”

On DATE ORG sentenced the applicant ( and his co - defendants ) to DATE imprisonment .

The jury had been asked to answer QUANTITY questions from the President of ORG . CARDINAL of them concerned the applicant and were worded as follows :

“ Question DATE PRINCIPAL COUNT

Is the accused PERSON , who is present before this court , guilty ,

as principal or joint principal ,

– either through having perpetrated the offence or having directly cooperated in its perpetration ,

DATE or through having , by any act whatsoever , lent such assistance to its perpetration that without it the offence could not have been committed ,

DATE or through having , by gifts , promises , threats , abuse of authority or power , scheming or contrivance , directly incited another to commit the offence ,

DATE or through having , by means of speeches in a public place or assembly , or by means of any written or printed matter , image or emblem displayed , distributed or sold , offered for sale or exhibited in a place where it could be seen by the public , directly incited another to commit the offence ,

of having knowingly and intentionally killed [ ORG ] in GPE on DATE ?

ANSWER : yes

Question DATE AGGRAVATING CIRCUMSTANCE

Was the intentional homicide referred to in the previous question premeditated ?

ANSWER : yes

Question DATE PRINCIPAL COUNT

as principal or joint principal ,

of having attempted knowingly and intentionally to kill [ M .- H.J. ] in GPE on DATE , the intention to commit the offence having been manifested by conduct which objectively constituted the first step towards perpetration of the offence and which was halted or failed to attain the aim pursued only as a result of circumstances outside the control of its perpetrator ?

ANSWER : yes

Question DATE AGGRAVATING CIRCUMSTANCE

Was the attempted intentional homicide referred to in the previous question premeditated ?

ANSWER : yes ”

On account of the numerous events occurring in the course of the trial , ORG delivered CARDINAL interlocutory judgments :

( CARDINAL ) judgment of CARDINAL DATE noting the absence of certain defendants and directing that they were to be tried in absentia ;

( CARDINAL ) NORP judgment of DATE on the submissions of a co - defendant on the issue of cassette recordings of a video link ;

( CARDINAL ) NORP judgment of DATE concerning the examination of witnesses without CARDINAL of the co - defendants being present ;

( CARDINAL ) NORP judgment of DATE on the civil parties ' submissions as to the examination of certain witnesses ;

( CARDINAL ) judgment of DATE on the examination of a witness in camera ;

( CARDINAL ) judgment of DATE setting aside the order for a co - defendant to be tried in absentia ;

( CARDINAL ) judgment of CARDINAL DATE refusing a request by the prosecution for a hearing in camera ;

( CARDINAL) judgment of DATE on the examination of certain witnesses in camera ;

( CARDINAL ) judgment of DATE on the submissions of a co - defendant objecting to the showing of a recording made by video link ;

( CARDINAL ) judgment of DATE on the submissions of a co - defendant as to the issue of witnesses who had failed to appear and witnesses to be reheard ;

( CARDINAL ) judgment of DATE on the submissions of a co - defendant as to the issue of the anonymous witness ;

( CARDINAL ) NORP judgment of DATE on the applicant 's submissions as to the issue of the anonymous informer ;

( CARDINAL ) judgment of DATE on the applicant 's submissions as to the issue of witnesses who had failed to appear and witnesses to be reheard .

With regard to the request for an investigating judge to hear or rehear evidence from the person who had anonymously supplied information noted down by CARDINAL non - commissioned gendarmerie officers , ORG held :

“ This information , obtained anonymously by members of the police force , has no probative value as such . In the present case it simply constituted information capable of giving fresh impetus or a new slant to the investigation and leading to the independent gathering of lawful evidence .

When examined at the hearing as witnesses , [ the CARDINAL non - commissioned gendarmerie officers ] stated that their informer was not CARDINAL of the defendants and that he himself had not witnessed any of the acts he described ; he had merely relayed information he said he had received in confidence from a person whose identity he refused to disclose .

In the investigators ' view , the process of drawing up an official record of information given to them by an anonymous informer did not in itself constitute any infringement of the defence rights of the persons named by the informer . All that was involved at that stage was the disclosure , with a view to its analysis and verification , of information that might be of interest to the investigation and might assist in clarifying the facts . Viewed in isolation from any objective data that might subsequently confirm it , this information did not constitute evidence of the acts allegedly carried out by the persons whose identity was mentioned by the informer .

Lastly ... it is not possible to speak of rehearing when it does not appear from the case file or the oral proceedings that [ the person described as an anonymous witness ] gave evidence under oath to an investigating judge .

With regard to the request for cross - examination of that person , firstly , the court is unaware of his identity and , secondly , regardless of the grounds relied on by the investigating judicial authorities in that respect , it does not appear useful for establishing the truth and would delay the proceedings needlessly without giving the hope of more certain results . ”

In another interlocutory judgment delivered DATE , ORG held as follows in relation to the applicant 's request for a second examination of certain witnesses :

“ The witnesses ORG , GPE , GPE and PERSON gave evidence to ORG , and the defendant PERSON and his counsel had the opportunity to put to them any questions they wished and to challenge freely all the evidence adduced by the prosecution and the civil parties .

In any event , as matters stand a second examination of those witnesses is unlikely to assist in establishing the truth and would tend to prolong the proceedings needlessly without giving cause to hope for more certain results .

Lastly , the requested examination of the witness ORG , who was called but refused to appear , and of a new witness , GPE , are likewise not necessary for establishing the truth and would tend to prolong the proceedings needlessly without giving cause to hope for more certain results , since the jury already has all the information required to form its verdict . ”

The applicant appealed on points of law against his conviction of DATE by ORG and against all the interlocutory judgments given by that court .

In a judgment of DATE ORG dismissed the appeal . It held , in particular , that :

– the belated appearance of a co - defendant could not infringe the appellants ' defence rights as they had been able to challenge freely both the statements made by that defendant during the preliminary investigation and relayed at the hearing by the persons to whom they had been given , and the statements made directly by the defendant before the jury .

– ORG had rightly ordered that CARDINAL witnesses should be examined in camera , fearing that they might not be able to express themselves freely if the hearing were public , which would have hindered the proper administration of justice ;

– in refusing to show the film of the confrontation between witnesses on the ground that it might delay the proceedings needlessly , ORG had not breached the principle of respect for the rights of the defence or the principle that hearings must be conducted orally , since the refusal had been based on the fact that those taking part in the confrontation , having appeared at the hearing , had been afforded the opportunity to be brought directly face to face with the defendants ;

– in directing that the proceedings should continue on the ground that the examination of certain absent witnesses ( who had been duly summoned to appear in court ) was not necessary for establishing the truth , and in holding that a further appearance by certain other witnesses “ would tend to prolong the proceedings needlessly without giving cause to hope for more certain results ” , ORG had not breached LAW and the principle that hearings must be conducted orally ;

– since the presumption of innocence related above all to the attitude of judges called upon to determine a criminal charge , the comments made by an investigator and the press reports , even if inaccurate , malevolent or resulting from a criminal offence , could not in themselves cause the trial to breach LAW and CARDINAL of the Convention ;

– it could not be inferred from the alleged inexperience of the jurors , the speed with which they deliberated or the lack of reasons given for their verdict that they were incapable of impartial adjudication in a case that had attracted considerable press coverage ;

– the procedure for appointing members of the jury and the fact that they reached their verdict as to guilt without having discussed the issue with the court did not mean that ORG was not an independent and impartial tribunal established by law within the meaning of LAW or that the presumption of the accused 's innocence could not be lawfully rebutted in that court ;

– neither LAW guaranteed the right of appeal ;

– neither LAW and DATE ( b ) of the Convention nor LAW ( b ) of LAW , nor LAW , even when read in conjunction with the above - mentioned treaty provisions , placed any obligation on a jury to state reasons for its answers ;

– the ground of appeal relating to LAW ( b ) of the LAW ( inability to confer freely with his lawyer as a result of his detention DATE before the trial had begun ) was inadmissible as it did not appear from the evidence in the file that the applicant had alleged before ORG that there had been a violation of the right to have adequate facilities for the preparation of his defence ;

– Articles CARDINAL and CARDINAL of the LAW , LAW did not state that reasons had to be given for a guilty verdict , or lay down the right of appeal or the right to appear before courts made up solely of career judges ; the discretion of the lay jury , which , moreover , was restricted by ORG CARDINAL , CARDINAL , CARDINAL and CARDINAL bis of the Code of Criminal Procedure , did not give rise to an arbitrary difference in treatment for the purposes of LAW .

As to the argument that the appellants ' conviction had been decisively or incidentally based on the statements of an anonymous informer , ORG stated :

“ In so far as they challenge the observation that ORG was unaware of the identity of the person whose examination was being requested and could therefore not order it , these grounds of appeal , being directed against an obiter dictum , are immaterial .

On that account , they are inadmissible .

As to the other submissions , the presence in a criminal case file of a record containing information from an unidentified source does not require the trial court to ensure that the informer is identified and examined in accordance with the procedure set forth in Articles CARDINAL bis and CARDINAL bis of LAW in order for the prosecution to be valid or admissible ; those provisions leave it open to the trial court to appoint an investigating judge to that end if such a step appears useful for establishing the truth .

The judgments consider , on the basis of a factual assessment which this court is not empowered to overrule , that the examination requested would delay the proceedings needlessly without giving cause to hope for more certain results .

The judgments also observe that the information obtained anonymously did not correspond to the evidence obtained lawfully and independently against the defendants .

It does not appear from ORG reply to the appellants ' submissions that the trial courts contested their right to rebut the evidence produced at the trial .

On that account , these grounds of appeal can not be allowed .

As to the remaining grounds , a breach of LAW ( d ) of the LAW ... does not result from the mere fact that the trial court considered it unnecessary , or impossible , to order the cross - examination of the anonymous informer whose disclosures provided helpful guidance for the investigation .

On that account , these grounds of appeal have no basis in law . ”

Addressing a further ground of appeal , ORG noted :

“ The appellant [ another co - defendant ] submitted that before the start of the trial , the President of ORG , acting by virtue of the powers conferred on him by LAW , had ' called a series of witnesses who , according to the criminal file , had been connected with with the matter of the anonymous witness ' ; the appellant observed that the session had , however , opened without those persons being examined and concluded that his trial had therefore not been fair within the meaning of LAW ...

However , the investigative measures described by the appellant could also have been ordered after the start of the trial , even under a different procedure , by the President of ORG acting by virtue of his discretionary power .

It does not appear from the evidence in the file that the appellant requested the President of ORG to order the examinations that , according to the ground of appeal , were not carried out .

Since this ground of appeal can not be raised for the first time before this court , it is inadmissible . ”

ORG includes a President and CARDINAL other judges ( assesseurs ) ; it sits with a jury . For the investigation and trial of civil actions , the court sits without a jury ( Article CARDINAL ) . Persons appearing on the list of jurors must be registered on the electoral roll , enjoy full civic and political rights , be aged at least thirty and CARDINAL and be able to read and write ( Article CARDINAL ) . Members of the jury are chosen by lot from the list of persons on the electoral roll ( Article CARDINAL ) . The procedure for compiling the list of jurors consists of several stages .

Article CARDINAL provides that the mayor ( bourgmestre ) is required to carry out a survey of all the voters on the preliminary list in order to determine whether they can read and write , whether they are capable of following the proceedings in ORG in the language of the region concerned , whether they are in active employment and , if so , in what capacity , whether they occupy a public office , whether they are a minister of a religion , whether they are a member of the armed forces in active service , what academic qualifications they have obtained , whether they have previously held elected office at national , provincial or municipal level , whether they are a member of CARDINAL of the committees listed in point ( CARDINAL ) of LAW , and whether there are any impediments preventing them from carrying out the duties of a juror . Persons on the electoral roll must accurately complete the form drawn up for this purpose .

NORP The prosecution is responsible for ensuring that , CARDINAL before the opening of the oral proceedings , the list of jurors is served on each accused person , and the documents relating to the survey provided for in LAW in respect of the actual jurors and the additional jurors called for service are attached to the criminal file , where they remain until the trial jury is formed ( LAW .

Before the opening of the oral proceedings in each case , on DATE appointed for that purpose , the jurors are called before ORG in the presence of ORG and the defendant , who is assisted by counsel ( Article CARDINAL ) . The president of ORG draws the names of the jurors CARDINAL by CARDINAL . First the defendant , then ORG , may challenge an equal number of jurors . Neither the defendant nor ORG may disclose their grounds for challenging a juror ( LAW . The jury is formed as soon as the names of CARDINAL jurors have been drawn by lot without being challenged . The president of the court then draws the substitute jurors by lot ( Article CARDINAL ) . The examination of the case begins immediately after the formation of the jury ( Article CARDINAL ) .

The president addresses the members of the jury , who stand , and asks them to take the following oath : “ You will swear and promise to examine with the most scrupulous attention the charges which will be made against ... ; not to betray either the interests of the accused or those of society which accuses him ; to communicate with no one until after your verdict ; to allow no hatred , spitefulness , fear or affection to influence your judgment ; to reach your decision in the light of the charges and the submissions in defence , according to your conscience and your innermost conviction , with the impartiality and resolution which befit a free and upright person ” ( Article CARDINAL ) . Each member of the jury , called on individually by the president , raises his hand and replies “ I so swear ” , on pain of nullity .

The president may order the clerk to read out the judgment by which the defendant was committed for trial . He orders the distribution to each juror of a copy of the bill of indictment and the statement of defence , if one has been filed . ORG reads out the indictment and the defendant or his counsel the statement of defence ( LAW .

A witness whose identity has been kept secret in accordance with Articles DATE bis and CARDINAL ter can not be summoned to appear in court as a witness without his consent . The president reads out the witness statement at the hearing and mentions that details of the witness 's identity have been kept secret in accordance with Articles CARDINAL bis and QUANTITY . If the witness agrees to give evidence at the trial , he retains full anonymity . In that eventuality , the president takes the necessary steps to guarantee the witness 's anonymity . The president may direct the investigating judge , either of his own motion or on an application by the prosecution or by the defendant , the civil party or their counsel , to rehear evidence from the witness or to interview a new witness in accordance with Articles CARDINAL bis and CARDINAL ter with a view to establishing the truth . The president may decide to be present when the witness is interviewed by the investigating judge ( Article CARDINAL ) .

Following the witness 's depositions , the civil party and ORG address the court . The defendant may make submissions in reply and the civil party and ORG are allowed to reply to the defence submissions , but the defendant always has the final word . The president then declares the oral proceedings closed ( LAW .

NORP The president reminds members of the jury of the duties they will have to discharge . He then puts questions to them . The question arising from the indictment is put in these terms : “ Is the defendant guilty of committing this murder , this theft or this other crime ? ” ( Articles CARDINAL and CARDINAL ) .

After asking the questions , the president hands them to the jury , represented by the foreman ; at the same time , he hands over the bill of indictment , the reports establishing the offence and the documents in the file other than the written witness statements . He advises the jury that if the defendant is found guilty on the principal count by a simple majority , this must be mentioned at the top of their verdict . ( Where appropriate , the president advises the jury that evidence obtained under ORG CARDINAL bis and CARDINAL ter can not be admitted unless it is corroborated to a decisive extent by other evidence ( Article CARDINAL ) . )

Once the questions have been put to and handed to the members of the jury , they retire to deliberate in private . The foreman is either the first member of the jury drawn by lot or is appointed by the jury with his consent . Before the deliberations begin , the foreman reads out the following instruction , which is also displayed in large type in the most visible place in the deliberation room : “ The law does not ask jurors to account for how they reached their personal conviction ; it does not lay down rules on which they are to place particular reliance as to the completeness and sufficiency of evidence ; it requires them to ask themselves questions , in silence and contemplation , and to discern , in the sincerity of their conscience , what impression has been made on their rational faculties by the evidence against the defendant and the submissions of the defence . The law does not tell them : ' You will hold every fact attested by this number of witnesses to be true ' ; nor does it tell them : ' You will not regard as sufficiently established any evidence that does not derive from this report , these exhibits , this number of witnesses or this many clues ' ; it simply asks them this CARDINAL question , which encompasses the full scope of their duties : ' are you inwardly convinced ? ' ” ( LAW ) .

NORP The members of the jury may leave their room only when they have arrived at their verdict ( LAW .

If the jury finds the defendant guilty , ORG makes submissions as to the application of the law . The defendant may file a defence ; however , he can no longer dispute the facts but can merely submit that a particular act is not prohibited or defined in law as an offence , or that he does not deserve the sentence sought by the prosecution ( Article CARDINAL ) .

The court , consisting of the judges and the jury , subsequently deliberates on the sentence to be imposed in accordance with the criminal law . The court then delivers its judgment ( Article CARDINAL ) .


Violation of Art. 6-1;Violation of Art. 13;Violation of P1-1;Remainder inadmissible;Pecuniary and non-pecuniary damage - financial award

The applicant was born in DATE and lives in the village of GPE , GPE .

On DATE and CARDINAL DATE the ORG ( hereafter “ the ORG ” ) awarded the applicant a total of ORG CARDINAL,CARDINAL against the PERSON Elektroispolnitelnyh Mekhanizmov Company ( hereafter “ the Company ” ) in salary arrears . Both judgments became final and were sent to the GPE ORG ( hereafter “ the Bailiffs ” ) for compulsory enforcement .

On DATE ORG rejected the applicant ’s complaint about the Bailiffs’ alleged inactivity . The court pointed out that the judgments given in the applicant ’s favour could not be executed in due time and in full on account of the debtor ’s lack of funds , the moratorium on the forced sale of the property of ORG - owned enterprises and a lien placed on the company ’s assets to secure the payment of taxes . On DATE the ORG of Appeal quashed this decision and remitted the case for fresh consideration . On DATE the proceedings were discontinued on the applicant ’s request .

On DATE the judgment of DATE was enforced in full . On DATE the sum awarded to the applicant by the judgment of CARDINAL DATE was transferred to his account . However , the amount of ORG was deducted by the bank as a processing fee .

The relevant domestic law may be found in the judgment of CARDINAL DATE in the case of ORG v. GPE ( no . CARDINAL/CARDINAL , § § DATE ) .


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

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

The applicants are journalists and were employed by the local DATE newspaper GPE .

On DATE the first applicant published an article criticising several criminal convictions he and another journalist had incurred for defamation . The article was entitled ‘ They have not punished us much for what we are’ ( ‘ PERSON nas kaznili , kakvi smo’ ) and , in so far as relevant , read as follows :

“ Where will our souls go , we wonder . Are we PERSON [ the most prominent villain from the ‘ PERSON Ford’ comic book ] of PERSON , who take from the poor and give to the rich ? Are we arrogant spendthrifts who waste money belonging to all NORP citizens , so that poor people have to pay our fines for offensive writing ? Has the judge LOC .... punished us too mildly and should n’t he have satisfied the request of the lawyer PERSON and deservedly ripped us off to the tune of MONEY ? But could n’t our prosecutor , who is surely not a blonde , but is being whistled at by workers on strike , have asked for more , since [ another column in the PERSON newspaper ] ruined his reputation acquired DATE , and in particular over DATE or CARDINAL , when he so ‘ ORG drafted dismissals to all the [ ‘ ] non - workers [ ‘ ] and the opposition from [ a local factory ] ? And what should the citizens who finance our public company do and think ? Could they also wonder who gave us the right to write insulting texts so that the judges of ORG must punish us ? ... Do we have the right to deny that people are tired of such a behaviour of ours ... ? Do we have the right to deny our fellow citizens their wish for a quiet life , free of stress and various court proceedings ? Do we have a soul , we wonder out loud , and if we do , where will it go after we ’ve prepared another scandal ? We should be ashamed of ourselves . ”

In the same issue , the second applicant was the editor of the page entitled ‘ Amusement’ , consisting of anagrams , jokes , a crossword and a horoscope . In the top middle section of the page there was a photo of a blonde woman in her underwear , next to which there was a text , which , in its relevant part , read as follows :

“ ORG and the manager were visited by a blonde the other day . For that occasion the blonde was whistled at by the workers who were not on strike . And she was n’t even a lawyer ... ”

On the left of the photograph , there was a small box containing CARDINAL anagrams , the first of which was an anagram of PERSON ’s name .

Shortly after publication of the above , PERSON instituted private criminal proceedings for insult against the applicants in ORG .

On DATE the court convicted the applicants of insult . The court fined each of them MONEY ( ORG , approximately LAW ) , ordering them jointly to pay PERSON CARDINAL ( approximately EUR CARDINAL ) in respect of the costs of the proceedings .

In its judgment , the first - instance court defined insult as a statement or an action objectively humiliating to a certain individual , constituting an attack on his or her honour . Acknowledging that PERSON was a public figure , the court explained that under domestic law an action done by way of a joke was not a criminal offence as long as that joke did not overstep acceptable boundaries and become insulting . The applicants must have known that PERSON considered their articles insulting , since they had previously been convicted of using identical terms about him . The court took particular note of the fact that the applicants mentioned PERSON directly and indirectly on several different pages of the same newspaper , and concluded that PERSON had proved that those texts had insulted him just by instituting the private criminal proceedings . In particular , the court held as follows :

“ Such writing by the defendants demonstrates the intention to demean the private prosecutor [ PERSON ] . This is so because it is clear that the defendants , in different ways and in different sections [ of the newspaper ] , compared the private prosecutor to a female , which comparison is objectively insulting in society . Namely , in our mentality it is insulting to feminise a man , and jokes about blondes are not in the least flattering , because they portray blondes as stupid people subject to mockery . ”

NORP On appeal , on CARDINAL DATE ORG upheld the first - instance judgment and its reasoning .

The relevant provisions of LAW ( ORG ; published in ORG – OG RS – no . CARDINAL ) read as follows :

“ A constitutional appeal may be lodged against individual decisions or actions of ORG bodies or organisations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by LAW , if other legal remedies for their protection have already been exhausted or have not been prescribed . ”

LAW ( NORP zakon PERSON ; published in OG RS CARDINAL . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL and CARDINAL ) , in so far as relevant , reads as follows :

“ CARDINAL . Whoever insults another shall be fined or punished by imprisonment not exceeding DATE .

Whoever commits an act described in [ the above ] paragraph ... through the press ... or at a public meeting shall be fined or punished by imprisonment not exceeding DATE . ”

“ CARDINAL . ... [ no one ] ... shall ... be punished for insulting another person if he [ or she ] does so in a scientific , literary or artistic work or a serious critique , in the performance of his [ or her ] official duties , his [ or her ] journalistic profession , as part of a political or other social activity or in defence of a right or of a justified interest , if from the manner of his [ or her ] expression or other circumstances it is clear that there was no [ underlying ] intent to disparage .

In situations referred to above , ... [ the defendant ] ... shall not be punished for claiming or disseminating claims that another person has committed a criminal offence prosecuted ex officio , even though there is no final judgment to that effect ... , if he [ or she ] proves that there were reasonable grounds to believe in the veracity of ... [ those claims ] ... ”

The General Criminal Code ( Osnovni krivični zakon ; published in ORG of ORG . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , ORG of GPE - OG FRY - nos . CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL and ORG no . CARDINAL/CARDINAL ) , in so far as relevant , reads as follows :

“ ... CARDINAL . If the fine can not be collected , the court shall order a day of imprisonment for each QUANTITY of the fine , provided that the overall term of imprisonment does not exceed DATE .

NORP If the convicted person pays only a part of the fine [ imposed ] , the rest shall ... be converted into imprisonment , and if the convicted person [ subsequently ] pays the remainder of the fine , his [ or her ] imprisonment shall be discontinued . ”


BRADEŠKO AND RUTAR MARKETING D.O.O. v. SLOVENIA

André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens

NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE . The applicant company , ORG , is a limited liability company registered in GPE . They were represented before the ORG by PERSON , PERSON and PERSON , lawyers practising in GPE .

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

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

The applicant is the director of ORG , which is a furniture store owned by the applicant company .

On DATE and DATE ORG of GPE ( hereinafter referred to as “ the Inspectorate ” ) carried out inspections at FAC .

On DATE the ORG issued a decision stating that the applicant company had failed to pay interest to customers who had put down an advance deposit to reserve their orders with the store . The decision illustrated the applicant company ’s practice by listing CARDINAL examples which concerned in total MONEY ( ORG ) . It was found guilty of violating section CARDINAL of LAW . In addition , the applicant was found guilty of failing to fulfil his supervisory role so as to prevent the above violation from occurring . The applicant company was fined approximately ORG CARDINAL,CARDINAL and the applicant approximately ORG CARDINAL .

On CARDINAL DATE the applicants made an application for judicial review in which they alleged that the ORG had wrongly established the facts ; in particular , they argued that by signing a contract which included the general terms and conditions of purchase , the customers had waived their statutory right to the payment of interest . The applicants contended that the ORG should have checked with each individual customer whether they had waived the right to the payment of such interest before imposing the fines . Consequently , they alleged that the relevant law had been wrongly applied and requested that ordinary court proceedings be opened .

On DATE ORG , in summary proceedings ( see paragraph CARDINAL below ) , delivered a judgment rejecting the application for judicial review as unfounded . Referring to the ORG ’s decision , reports of the ORG concerning the aforementioned inspections , a written statement by the applicant company of DATE relating to one of those reports ( dated DATE ) , and a report the ORG had drawn up after the application for judicial review had been made , the court found that the facts had been properly established by the ORG and that the application was unfounded . In particular , the court observed that the rights enjoyed by the consumers by virtue of LAW could not be excluded or limited by contract . Moreover , it found that the customers had not been given the option to pay for the goods in full on delivery . The applicant company was ordered to pay ORG CARDINAL and the applicant LAW in court fees . The judgment , which included an instruction that there would be no right of appeal , was served on them on DATE .

On DATE the applicants requested to ORG to lodge a request for the protection of legality ( extraordinary appeal ) before ORG . They argued , in particular , that the sanction had been disproportionate and unlawful . As regards the latter , they argued that the minimum fines prescribed for the offence in question had been reduced to ORG CARDINAL,CARDINAL for a company and LAW for an individual by LAW to LAW , which had entered into force on DATE . The court , in their submission , had failed to take that into account and to impose a lower fine in accordance with the legislation or , alternatively , give the applicants a right of appeal against the judgment which , under LAW , was permitted in cases where the fine imposed was higher than the minimum fine prescribed . The applicants made no complaints with regard to the lack of an oral hearing before the local court .

On DATE ORG replied to the applicants , informing them that he had no intention of lodging a request for the protection of legality in their case . He explained that although they were correct in arguing that a lower fine should have been imposed on them in line with the amended LAW , their case was not important enough for the development of jurisprudence , nor had they argued that it had had any serious consequences for them .

Section CARDINAL of the Consumer Protection Act reads , in its relevant part , as follows :

“ ( CARDINAL ) If the company expressly or implicitly provides for the purchase of goods or services subject to a full or partial deposit and delivers the goods or service after the receipt of that deposit , it is obliged to pay ... interest to the customer ... ”

Section CARDINAL provides , in so far as relevant :

“ ( CARDINAL ) ... a company shall be issued with a fine of CARDINAL [ approximately LAW ] and CARDINAL NORP tolars if :

it does not specify in the final invoice , and pay the customer , the interest due on the deposit paid at the interest rate ... ( section CARDINAL ) ;

( CARDINAL ) As punishment for the offence mentioned in the preceding paragraph , the director of the company ... shall be issued with a fine of CARDINAL [ approximately ORG CARDINAL,CARDINAL ] and CARDINAL NORP tolars . ”

Section CARDINAL of the LAW to the Customer Protection Act , which entered into force on DATE , amended section CARDINAL as follows :

“ ( CARDINAL ) ... a company shall be issued with a fine of between ORG CARDINAL,CARDINAL and ORG CARDINAL if :

( CARDINAL ) As punishment for the offence mentioned in the preceding paragraph , the director of the company ... shall be issued with a fine of between ORG CARDINAL,CARDINAL and ORG CARDINAL . ”

For details of the relevant provisions of LAW , in particular those concerning “ summary proceedings ” , see NORP v. GPE ( ( dec . ) , no . CARDINAL/CARDINAL , CARDINAL DATE ) . As regards the right of appeal in such proceedings ‒ an issue of particular relevance to the present case ‒ section CARDINAL ) reads , in so far as relevant , as follows :

“ An appeal may be lodged against ... decisions of the court of first instance ... in cases where the fine imposed was higher than the minimum fine prescribed for that offence ... ”

Such an appeal may be lodged on any grounds , except points of fact .

A request for the protection of legality is an extraordinary appeal that may be lodged by ORG , either proprio motu or on the initiative of a party to the proceedings or another person entitled to do so under LAW , against any final judicial decision issued in the minor offences proceedings . It can be used to complain about a violation of the rules of substantive or procedural law . These requests are dealt with by a CARDINAL - member panel of ORG .

The DATE Amendment to LAW , which entered into force on DATE , limits the availability of constitutional appeals by , inter alia , excluding in principle the possibility to challenge decisions issued in proceedings concerning minor offences . However , in exceptional circumstances such cases can be examined if they raise an important constitutional question extending beyond that particular case . The relevant provisions of the LAW read as follows :

“ ( CARDINAL ) A constitutional appeal shall not be admissible if the violation of human rights or fundamental freedoms [ alleged ] did not have significant consequences for the complainant .

( CARDINAL ) It is deemed that there has been no violation of human rights or fundamental freedoms having significant consequences for the complainant with regard to individual decisions :

- issued in small - claims disputes ... ;

- concerning costs of proceedings , where such decision alone is challenged in the constitutional appeal ;

- issued in trespass to property disputes ;

- issued in minor offence cases .

( CARDINAL ) Irrespective of the preceding paragraph , ORG may in particularly justified cases decide exceptionally on a constitutional appeal against the individual decisions referred to in the preceding paragraph , notably where the decision appealed against concerns an important constitutional question which goes beyond the importance of the actual case . ”

“ ( CARDINAL ) A constitutional appeal shall be rejected :

- if it does not concern an individual act by which a state authority , local authority , or a holder of public power decided on the rights , obligations or legal interest of the complainant ;

- if the complainant does not have a legal interest in a decision on the constitutional appeal ;

- if it is not admissible , except in the instance referred to in the third paragraph of the preceding section ;

- if it was not lodged in due time ;

( CARDINAL ) A constitutional appeal shall be accepted for consideration :

- if there has been a violation of human rights or fundamental freedoms which has had significant consequences for the complainant ; or

- if it concerns an important constitutional question which goes beyond the importance of the actual case .

ORG held in its decision no . CARDINAL of CARDINAL DATE that the guarantees of a fair trial applicable to criminal proceedings should , in principle , also apply to minor offences proceedings , in particular as regards the right of the accused to participate in the proceedings and express their views on all relevant factual and legal issues . The court ’s views were confirmed on a number of occasions in its subsequent case - law , notably in decision no . Up-CARDINAL/CARDINAL of DATE , in which it found that the applicant should have been given the opportunity to exonerate himself from the charges by producing a witness who could confirm that he had not been present at the scene of the minor offence at the time it had been committed .

In that decision ORG explicitly stated :

“ Regardless of the fact that the court is not obliged to accept all the evidence submitted by the defence , it must accept the evidence which is relevant from the perspective of substantive law and for which the defence has shown with a sufficient degree of probability that it exists and is legally relevant . The court may dismiss evidence submitted if taking further evidence is redundant because the case is clear , if the fact to be proved by the evidence submitted has already been proved or has no influence on the case , or if the means of evidence are unsuitable or unattainable . ”

Moreover , in decision no . Up-CARDINAL/CARDINAL of DATE the court found a violation of the LAW on the grounds that the local court had refused to hold an oral hearing , which had deprived the applicant of an opportunity to have examined the incriminating witnesses on whose statements the decision had been based . Similar issues were also examined in another recent decision , no . Up-CARDINAL/CARDINAL of DATE . Finally , decision no . Up-CARDINAL/CARDINAL of CARDINAL DATE , also adopted under the new admissibility criteria , included , inter alia , an examination of the penalty imposed for the minor offence in question .