Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva

The first applicant , PERSON , was born in DATE and lives in GPE . The second applicant , Mr PERSON , was born in DATE and lives in GPE . The third applicant , Mr PERSON , was born in DATE and lives in GPE . The fourth applicant , ORG , was born in DATE and lives in GPE . The fifth to ninth applicants are the heirs of PERSON : PERSON ( born in DATE and living in NORP ) , PERSON ( born in DATE and living in GPE ) , PERSON ( born in DATE and living in GPE ) , PERSON ( born in DATE and living in NORP ) and PERSON ( born in DATE and living in GPE ) . All the applicants are GPE nationals . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE , GPE .

The applicants are joint owners of CARDINAL adjacent plots of land in GPE , registered under files nos . CARDINAL and CARDINAL of the LOC land register . In an area zoning plan , the PERSON municipality designated these plots of land as non - building land .

On DATE the applicants in application no . CARDINAL ( that is , the first , second , third and fourth applicants in the present case and ORG , who died after the termination of the proceedings at issue in that application ) requested ORG to pay them compensation for damage allegedly incurred as a result of the designation of their land as non - building land .

On DATE ORG dismissed that request .

On DATE ORG , sitting in camera , dismissed the applicants ' appeal against the ORG 's decision . In these proceedings the NORP municipality , as the respondent party , had filed reasoned submissions on DATE requesting ORG to dismiss the applicants ' appeal , inter alia because the applicants ' property had not been opened up for development purposes . These comments were not served on the applicants .

In its decision , ORG included a detailed summary of the comments submitted by the PERSON municipality . It noted that the conditions for compensation had not been met , inter alia because , contrary to the applicants ' submissions , the applicants ' property had not been opened up for development purposes . When the zoning plan was issued , the applicants could not have legitimately expected their property to be designated as building land . As to the applicants ' request that the parties be heard on that issue , ORG considered that the applicants had filed very detailed written submissions and had therefore been given sufficient opportunity to submit their arguments and evidence .

On DATE ORG dismissed the applicants ' complaint ( file no . PERSON CARDINAL/CARDINAL ) . It found , in particular , that the failure to afford the applicants an opportunity to comment on the PERSON municipality 's submissions before ORG had not breached their right to a fair trial . Even though the said submissions had contained some new information , the applicants had not suffered any prejudice as the new information had not had any bearing on ORG decision .

On DATE the applicants in application no . CARDINAL/CARDINAL lodged their application with the ORG .

In its judgment of DATE in the case of ORG and Others v. GPE the ORG found that there had been a violation of LAW in that the principle of equality of arms had been disregarded . The ORG found as follows :

“ CARDINAL . In the present case , the Schellenberg municipality , being the opposing party in the compensation proceedings at issue , filed comments on the applicants ' appeal to ORG , requesting it to dismiss that appeal . It is not contested that these comments were not served on the applicants and that they had no opportunity to reply to them . This deficiency it not remedied by the fact that the applicants could complain to ORG , as the latter does not carry out a full review of the case .

The ORG is not convinced by the ORG 's argument that , in contrast to the PERSON case ( cited above ) , ORG did not rely on these comments . It is true that that ORG did not rely on the municipality 's assertion that the applicants ' father had not filed an objection against the area zoning plan . However , it did have regard to its submissions on the question of whether the applicants ' land was opened up for building . In any case , the municipality 's observations contained a reasoned opinion on the merits of the applicants ' appeal . The ORG has repeatedly held that in such a situation the effect which the observations actually had on the judgment is of little consequence . What is particularly at stake here is the litigants ' confidence in the workings of justice , which is based on , inter alia , the knowledge that they have had the opportunity to express their views on every document in the file ( ORG , cited above , p. CARDINAL , § § DATE , CARDINAL ; PERSON , cited above , § CARDINAL ) .

In the present case , respect for the right to a fair trial , guaranteed by LAW , required that the applicants be given an opportunity to have knowledge of and to comment on the observations submitted by the opposing party , namely the NORP municipality . However , the applicants were not afforded this possibility . ”

As regards the application of LAW , the ORG noted the applicants ' argument that they had suffered pecuniary damage as their land would be worth more had it been designated as building land , which , in the applicants ' contention , would have been the case had the violations of the ORG not occurred . It found , however , that there was no causal link between the violation found and the pecuniary damage claimed and that it was not called upon to speculate what the outcome of the proceedings would have been if they had been in conformity with the requirements of LAW . Therefore , it made no award in respect of pecuniary damage .

As to the applicants ' request that the ORG order a reopening of the domestic proceedings , the ORG reiterated that it was primarily for the ORG concerned to choose the means to be used in its domestic legal order in order to discharge its legal obligation under LAW , provided that such means were compatible with the conclusions set out in the ORG 's judgment . This discretion as to the manner of execution of a judgment reflected the freedom of choice attaching to the primary obligation of GPE under the LAW to secure the rights and freedoms guaranteed ( the ORG referred to ORG v. GPE , no . MONEY , § CARDINAL , ECHR CARDINAL-II ) . Only in very exceptional circumstances had the ORG ordered individual measures of redress ( ibid , § § CARDINAL - CARDINAL ) . The ORG considered that no such circumstances pertained in the case before it .

The ORG 's judgment in application no . CARDINAL having become final on DATE , the applicants in that application lodged a request with ORG on DATE to reopen the compensation proceedings .

On DATE ORG dismissed the applicants ' request .

ORG found that the applicants had not substantiated that the conditions for reopening the proceedings under LAW ( Landesverwaltungspflegegesetz ; see “ Relevant domestic and international law and practice ” below ) had been met . It further decided not to reopen the proceedings ex officio under LAW CARDINAL of GPE ( see “ Relevant domestic and international law and practice ” below ) . ORG referred to the findings of ORG in its decision of CARDINAL DATE . It noted that the latter had considered that the submissions by the municipality of PERSON had contained new facts which had not , however , had any bearing on the reasoning of ORG dismissing the applicants ' appeal in its decision of DATE .

ORG considered that the ORG 's finding of a violation of the ORG was not a reason to reopen the proceedings under GPE law . LAW did not contain an obligation to reopen proceedings . Accordingly , in its judgment of CARDINAL DATE the ORG had rejected the applicants ' request to order a reopening of the proceedings before the domestic courts . There were no new aspects which ORG had been unable to take into consideration in its first judgment .

On DATE the applicants lodged a complaint with ORG against ORG decision . They claimed , inter alia , that the refusal to reopen the proceedings had violated their right to a fair trial . In particular , ORG reference to ORG finding , in its decision of CARDINAL DATE , that the comments made by the municipality of PERSON had been irrelevant to the reasoning of ORG first decision had been arbitrary .

On DATE ORG dismissed the applicants ' constitutional complaint ( file no . PERSON ) .

ORG took note of the ORG 's finding that LAW had been breached in the proceedings before ORG . However , under the provisions of the LAW that finding did not mean that the final judgment of the GPE court had to be quashed , as the Contracting Parties to the Convention were not obliged to accord such an effect to the ORG 's judgments .

ORG considered not to be arbitrary , but in fact convincing , ORG finding that GPE law ( in particular section CARDINAL § CARDINAL of the Act on Administrative Procedures read in conjunction with LAW , LAW CARDINAL § CARDINAL and section CARDINAL of GPE ; see “ Relevant domestic and international law and practice ” below ) did not provide for a reopening of the proceedings in respect of a decision taken by ORG itself or by ORG following a finding by this ORG that that decision had violated the LAW . Such a finding had to be classified as a new legal assessment , but not as a new fact or new evidence which would alone justify a reopening under the applicable legal provisions .

ORG further noted that the ORG , in its judgment of DATE , had found that there was no causal connection between the violation of LAW found and the pecuniary damage claimed by the applicants . The ORG further awarded the applicants costs under LAW without examining and irrespective of the question whether restitution , including a reopening of the proceedings , could be granted under GPE law .

ORG considered that , in the present case , the ORG 's finding of a violation of LAW was sufficient restitution . The Contracting Parties to the LAW were not obliged to provide for a reopening of proceedings which had been terminated by a final decision in cases in which the ORG had found that a procedural right under LAW had been disregarded . It conceded that this finding was unsatisfactory in cases in which a reopening of the proceedings was necessary in order to grant redress . It noted that in several other Contracting Parties to the LAW , such as GPE , GPE and GPE , the law permitted the reopening of proceedings following the finding of a violation by the ORG under certain circumstances . However , it was for the legislator , not the courts , to provide for a reopening of the proceedings .

ORG further left open whether respect for the right to equality could warrant a reopening of proceedings if otherwise the result would be blatantly unjust . In any event , a blatant injustice had not occurred in the present case . Not only had the ORG found that there was no causal link between the violation of the ORG found and the damage claimed by the applicants , the applicants had also been awarded the costs incurred in the proceedings because of the breach of LAW .

ORG expressly accepted the ORG 's judgment , according to which a breach of LAW had occurred . It agreed , however , with ORG , which had found that its decision , in respect of which the applicants requested a reopening of the proceedings , was not based on that breach . Therefore , the ORG 's finding of a violation of the ORG was sufficient and further measures of restitution were not necessary .

The decision was served on the applicants ' counsel on CARDINAL DATE .

On DATE the applicants , in addition to their application lodged with ORG , also requested ORG to reopen the proceedings which it had terminated by its decision of CARDINAL DATE , to quash the decision of ORG of CARDINAL DATE and to order that court to take a new decision in fresh proceedings .

On DATE ORG dismissed the applicants ' request for the proceedings before it to be reopened under LAW ( see “ Relevant domestic and international law and practice ” below ) . Referring to the reasons given in its decision taken on DATE in complaint no . PERSON , it found that it was sufficient for it to confirm that the failure to serve the comments of the NORP municipality of CARDINAL DATE on the applicants had breached their rights under LAW ( file no . ORG ) .

On DATE that is , at a time when the reopening proceedings were still pending before ORG , in its PERSON session , concluded its examination of the execution of the ORG 's judgment of CARDINAL DATE in the case of ORG and Others v. GPE , application no . CARDINAL/CARDINAL , by adopting Resolution ResDH(CARDINAL)CARDINAL , the relevant parts of which read :

“ ORG , ...

Having examined the measures taken by the respondent state ... , the details of which appear in Appendix ;

DECLARES that it has exercised its functions under LAW , paragraph CARDINAL , of the LAW in this case and DECIDES to close its examination . ”

The Appendix to Resolution ResDH(CARDINAL)CARDINAL on information about the measures taken to comply with the judgment in the case of ORG and Others v. GPE provides :

“ ... Individual measures

The proceedings have been concluded at national level . ORG has already taken account of the possible effect of the violation on the proceedings , holding that the applicants had not suffered any prejudice ( see below ) .

... General measures

Stating that the principle of equality of arms is a basic element of fairness of proceedings , the ORG agreed with the applicants ' argument that they should have been afforded an opportunity to be informed of and to comment upon the municipality 's observations . It did note , however , that while the submission contained new information , it had played no role in ORG decision and therefore no prejudice had occurred . Thus ORG concluded that the applicants ' procedural rights had not been interfered with .

Citing its case - law , ORG held that the actual effect of the observations on the judgment was of little consequence , as it was above all the litigants ' confidence in the work of justice which was at stake . This confidence is based inter alia on the knowledge that they could have the opportunity to express their views on every document in the file ( see paragraph CARDINAL ) .

The judgment of ORG was disseminated in DATE to all authorities concerned , particularly to the domestic courts and published in the Liechtensteinische Juristenzeitung ( ORG ) in DATE ... ”

Pursuant to section LAW ) a party 's request to reopen proceedings which were terminated by a decision on the party 's rights has to be decided upon by applying , mutatis mutandis , the relevant provisions of LAW on the grounds for granting such a request and on the procedure to be followed in the fresh proceedings .

Under LAW proceedings which were terminated by a judgment can be reopened on a party 's request , in particular , if the party becomes aware of new facts or discovers or is put in a position to use new evidence , the submission and use of which would have brought about a decision more favourable to that party in the previous proceedings ( no . CARDINAL ) .

Under section ORG § CARDINAL of GPE a request to reopen proceedings shall also be granted if another authority took a significantly different decision on a preliminary question which did not fall within the competence of the administrative authority deciding on the main administrative question .

Under section CARDINAL § CARDINAL of GPE the reopening of terminated proceedings shall be ordered ex officio at any time , if this was not excluded by the res judicata effect , if it is very probable that the decision taken was based on an incorrect assessment of the material before the authority or on the authority 's lack of knowledge of facts and evidence and that a substantial breach of public interests had occurred thereby .

Section CARDINAL § CARDINAL of LAW ( Staatsgerichtshofgesetz ) provides that the reopening of proceedings in respect of decisions taken by ORG may be requested in accordance with the provisions of LAW .

The text of Recommendation No . R ( DATE ) CARDINAL on the re - examination or reopening of certain cases at domestic level following judgments of ORG , adopted by ORG on DATE at the PERSON meeting of ORG , is reproduced , for instance , in PERSON gegen GPE ( PERSON ) ( no . CARDINAL ) , cited above , § CARDINAL .


Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicant , PERSON , is an NORP national who lives in GPE . She is represented before the ORG by PERSON , a lawyer practising in PERSON . ORG ( “ the Government ” ) were represented by their Agent , Ambassador PERSON , Head of ORG at ORG .

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

The applicant is the owner of a plot of land in GPE . Her neighbour owns CARDINAL plots of land . The first one , directly bordering the applicant 's land , is a strip of QUANTITY in width , which is classed as “ dividing green ” ( Trenngrün ) in the area zoning plan ( ORG . For the second plot of land the applicant 's neighbour requested a building permit to erect a workshop for assembling tools . Initially , the neighbour would have had to keep a distance of QUANTITY from the dividing green for any building on the second land , i.e. a total of QUANTITY from the applicant 's land .

This request was granted by the Mayor ( Bürgermeister ) of GPE on CARDINAL DATE . Appeal proceedings brought by the applicant remained unsuccessful and on CARDINAL DATE ORG dismissed a complaint brought by her .

An inspection on DATE showed that the neighbour had not fully complied with his building permit and notice to halt the construction ( PERSON ) was issued .

On DATE ORG ( PERSON ) issued for the first time a construction planning scheme ( GPE ) concerning the plots of land of the applicant 's neighbour . The construction planning scheme allowed for the construction of buildings up to a height of QUANTITY and changed the building line to allow in part building closer to the dividing green which was situated between the applicant 's land and the land of her neighbour . The applicant filed a direct application ( PERSON ) with ORG requesting to have this planning scheme reviewed . This request was rejected by ORG on DATE , because the applicant could have asked for review of the planning scheme in building proceedings concerning the land at issue . In DATE and DATE the planning scheme was modified following amendments to the building legislation , allowing for a maximum construction height of QUANTITY and moving the building line on to the northern edge of the land , opposite to where the applicant 's land was situated .

In DATE the applicant 's neighbour filed a further request for a building permit for an extension of a part of the building . The permit was granted on DATE by the Mayor . Appeal proceedings brought by the applicant remained unsuccessful . On DATE ORG dismissed a complaint by the applicant as it found that the construction planning scheme and its amendments were lawful .

Meanwhile , on DATE , a further inspection by the authorities showed that the workshop was not completely in compliance with the permit , because it was QUANTITY too wide and was also built on a small piece of the dividing green .

Thereupon , on DATE , the applicant 's neighbour requested a retrospective building permit for the workshop . This request was based on a plan that included the demolition of those parts of the workshop that were built on the dividing green .

At a hearing ( GPE ) on DATE the applicant was present and filed several objections , following which the hearing was adjourned and the neighbour asked to amend his request . Besides the parties several experts were also heard . The landscape protection expert found that the proposed project was an improvement from the point of view of landscape protection . In his view the underlying problem was that initially the workshop for assembling tools had been situated on an isolated plot of land ; subsequently building land had been designated in its close vicinity , and that was what had led to the present tensions . The hearing was resumed and , on DATE , the Mayor of GPE granted the neighbour the building permit .

On DATE the applicant appealed .

On DATE ORG ( PERSON ) dismissed the applicant 's appeal and allowed the minor breach of the specifications regarding the width of the workshop for assembling tools , because no public interest or rights of third persons had been infringed .

Subsequently , on DATE , the ORG ( PERSON ) also dismissed the applicant 's appeal ( PERSON ) . It held , inter alia , that the applicant 's subjective rights could not have been infringed by the building permit , because those parts of the workshop erected on the dividing green fell outside the scope of the existing building permit .

On DATE the applicant filed a complaint with ORG . In her complaint she submitted that her neighbour had not respected all the relevant regulations for the building and that the construction planning scheme had been unlawful and in breach of the principle of equality .

On DATE ORG , referring , inter alia , to its case law on that matter and its previous decision of DATE in which it had found that the construction planning scheme at issue had been lawful , declined to deal with the applicant 's complaint for lack of any prospect of success . On DATE it referred the case to ORG upon the applicant 's request .

On DATE ORG instructed the applicant to remedy procedural shortcomings of her complaint . The applicant did so on DATE .

She submitted that the building authorities had incorrectly applied the provisions of the building legislation and that the building project was not in accordance with the relevant provisions of the area zoning plan and the construction planning scheme .

On DATE and DATE the applicant 's neighbour and GPE submitted their comments . On DATE the ORG submitted the files and also commented on the applicant 's complaint .

On DATE the applicant supplemented her complaint and submitted additional evidence . The applicant 's neighbour commented on her submissions on DATE .

On DATE ORG dismissed the applicant 's complaint as being manifestly ill - founded since no interference with the applicant 's rights as a neighbour had occurred . This decision was served on the applicant 's lawyer on DATE .


CASE OF OOO 'VESTI'  AND UKHOV v. RUSSIA

No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Impartial tribunal);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Equality of arms)

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković

The first applicant had its registered office in GPE . The second applicant was born in DATE and lives in GPE .

The first applicant was a limited liability company founded by ORG of ORG and registered as a legal entity in DATE .

On an unspecified date ORG and ORG founded ORG , GPE newspaper . On DATE it was officially registered as a regional news medium . The official address of its editorial board was the same as that of the first applicant .

According to the applicants , the editorial board of ORG , GPE newspaper was not registered as a legal entity and did not have articles of association . The first applicant was the publisher of ORG , GPE newspaper . The applicants were , however , unable to submit a publishing agreement .

According to its articles of association , as amended on DATE , the first applicant ’s main activity consisted in issuing PERSON , GPE newspaper . It also carried out publishing and advertising activities . The first applicant was managed by its executive body , the editor - in - chief . That position was occupied at the material time by the second applicant , who was at the same time the editor - in - chief of ORG , GPE newspaper .

On DATE PERSON , GPE newspaper published an article under the headline “ The Chief ORG has brought the media to its knees . But not the businessmen ” ( « ГФИ поставил на колени прессу. Но не коммерсантов GPE ) . The article was written by the second applicant , who signed it using his pen - name , PERSON .

The article concerned a joint press conference held by PERSON , the Chief Federal Inspector for GPE , and PERSON , the Mayor of GPE . The press conference was about the media coverage of the regional project “ GPE , cultural capital of the LOC region for DATE ” . The article was critical of the cultural value of the events connected with the project and spoke ironically about PERSON “ accomplishments ” in that field . PERSON was further quoted as saying that the allotted funds were insufficient to finance the work of the project ’s organising committee and as criticising local businesses for their unwillingness to sponsor the project , allegedly because the project had not received the Governor ’s explicit endorsement . The article then went on as follows :

“ Curiously enough , just before that meeting , I had a chance to talk to some businessmen I know . They told me that the chief federal inspector ’s office had literally pestered them with ‘ ORG for them to become sponsors . However , they do not respond to such ‘ ORG , not because they fear the Governor , but because they do not want to give money . Some say that [ Mr P. ] is too deeply involved in political games , of which they want no part . Others are , for some reason , concerned that their money might be wasted on the lovers of the collector of funds rather than spent on cultural events . ”

On DATE PERSON , in his official capacity as the Chief Federal Inspector , brought an action for defamation against the editorial board of the PERSON newspaper and the author of the article , PERSON . According to his statement of claim , the final paragraph of the contested article had asserted that he was in charge of the collection and distribution of funds for the project , that he was capable of committing a crime by embezzling the funds entrusted to him , and that he had lovers , thereby violating moral and ethical norms . Considering that those statements were untrue and damaging to his honour , dignity and professional reputation , he sought a retraction and compensation for non - pecuniary damage .

PERSON also enclosed the text of the retraction statement that he wished the editorial board of the PERSON newspaper to publish . It contained an apology and an acknowledgement that the last sentence of the paragraph cited above was untrue and damaging to his honour and reputation , a promise to discipline the author of the article and an undertaking to respect the domestic law on the media in the future .

On DATE PERSON , deputy editor - in - chief of the first applicant , signed a power of attorney appointing PERSON and PERSON to act as its counsel in the defamation proceedings .

On DATE Judge PERSON ORG of GPE decided to sever the claim against the author of the article for adjudication in separate proceedings because the first applicant had refused to disclose his identity . The proceedings against the author were stayed .

On DATE ORG of GPE , sitting in a single - judge formation comprising Judge PERSON , held a hearing . Counsel , Mr PERSON and PERSON , asked that the hearing be adjourned because the second applicant , the newspaper ’s editor - in - chief and the only person acquainted with the circumstances relating to the contested publication , was on DATE leave until DATE . The court refused the request .

Mr PERSON and PERSON further submitted that the contested statements did not concern PERSON , who was not the collector of funds for the cultural project . The funds were being collected by ORG .

Counsel for PERSON submitted that the article had been entirely devoted to PERSON It stated , in particular , that he had “ pestered ” local businessmen with requests to become sponsors of the cultural project . The last sentence of the article , which concerned the collector of funds , could easily be interpreted as directed at PERSON Such an interpretation had indeed been made by a number of local newspapers , which had also understood the last sentence of the article as referring to PERSON

On DATE ORG of GPE granted PERSON claim against the editorial board of the PERSON newspaper in full . The court found that the final paragraph of the article contained false information about the plaintiff , who it had falsely alleged was the collector of funds that might have been wasted on lovers rather than spent on cultural events . The court noted that the defendant had not produced any proof of the truthfulness of that information . It ordered the editorial board to pay the plaintiff MONEY ( RUR ) ( MONEY ( ORG ) ) in compensation for non - pecuniary damage , and RUR CARDINAL in court fees . It further ordered an immediate publication of the retraction statement as drafted by PERSON

On DATE enforcement proceedings were opened . On DATE , the first applicant applied to ORG for a stay in the enforcement proceedings . It submitted that the court had ordered the enforcement of the judgment against the editorial board of the PERSON newspaper , which had no legal entity status and , accordingly , could not be a defendant in civil proceedings . Furthermore , the order for immediate enforcement was unlawful and violated the first applicant ’s right to know the reasons for the judgment ( at that time , the full text of the judgment was unavailable ) and to lodge an appeal against it .

On DATE Judge PERSON issued CARDINAL interim decisions . By the first decision he refused the first applicant ’s request for a stay of enforcement as unsubstantiated . No further reasons were given . The second decision rectified an error in the operative part of the judgment . It held that the defendant ’s name was “ the limited liability company ORG Vesti Newspaper ” rather than “ the editorial board of the PERSON newspaper ” .

On DATE the Gubernskie Vesti , ORG newspaper published the retraction statement as drafted by PERSON and endorsed in the judgment of DATE .

On DATE the first applicant lodged an appeal against the judgment of DATE , submitting that the article had not named the collector of funds for the project or suggested that it was Mr P. who had collected the funds . Nor had it stated that PERSON had lovers or that he had embezzled any funds entrusted to him . It was clear from the text that the contested sentence did not concern PERSON at all . The first applicant further complained about ORG unreasoned refusal to adjourn the hearing until the second applicant had returned from leave . The second applicant was the only person who knew the identity of the author of the article and who was able to give an informed response to the statement of claim .

The second applicant lodged a statement in support of the appeal . He disclosed that he was the author of the article and stated that the judgment of DATE had been poorly reasoned . Although Mr P. had failed to prove that the contested sentence concerned him personally , ORG had accepted his claim without analysing whether the impugned statements were indeed directed at him .

On an unspecified date the proceedings against the author of the article were resumed and the second applicant was summoned to appear before ORG as the defendant in PERSON defamation case instituted on DATE . His case was heard by a bench composed of the presiding judge PERSON and CARDINAL lay assessors . The second applicant lodged an objection against Judge PERSON on the ground that he had already expressed his position in the judgment against the editorial board . Lay assessors examined and rejected the objection , finding that the second applicant ’s fears as to PERSON impartiality were not justified .

At the hearing on DATE the second applicant was represented by PERSON as counsel . The second applicant and his counsel both argued that the last sentence of the article did not concern Mr P. It concerned the collector of funds , who had not been identified in the article . The fact that other newspapers had interpreted the last sentence as directed at Mr P. was irrelevant because the second applicant could not be held responsible for the actions of other people . They further submitted that the second applicant had simply repeated the reservations expressed by businessmen with regard to the distribution of the funds collected for the project .

Counsel for PERSON repeated the arguments he had advanced at the hearing of DATE , in particular the reasons why PERSON believed that the contested statements were directed at him . He submitted , in particular , that the title and the structure of the article showed that it was entirely about PERSON and that other people had understood the last sentence of the article as concerning PERSON , and this had been proved by articles in other newspapers .

On DATE ORG issued a judgment against the second applicant . The court found that the article read as a whole gave the impression that the contested statements concerned Mr P. The same interpretation had been arrived at by other newspapers , which had been unanimous in considering that the last sentence had been about Mr P. The contested statements , which accused PERSON of spending public funds on lovers , were damaging to his honour , dignity and professional reputation . The second applicant had failed to prove the truthfulness of his statements about Mr P. The second applicant was ordered to pay RUR CARDINAL ( approximately CARDINAL euros ) in compensation for non - pecuniary damage , and ORG in court fees .

The second applicant appealed . He repeated the arguments advanced in his statement in support of the first applicant ’s appeal . He further argued that the outcome of his case had been predetermined by the judgment against the editorial board . Judge PERSON , who had examined the case against the editorial board , was bound to have had a preconceived opinion on his case .

On DATE ORG adjourned the examination of the appeals . It established that the interim decision of DATE rectifying an error in the judgment of CARDINAL DATE had been issued in the absence of the interested parties . Moreover , the parties had not received a copy of that decision and had thereby been deprived of an opportunity to appeal . Until that omission had been remedied , the appeal against the judgment of DATE could not be examined , nor could the appeal against the judgment of DATE . Because both cases were based on the same claim , the determination of CARDINAL of them would prejudge the outcome of the other . On that ground , ORG decided that the CARDINAL cases should be joined and all appeals should be examined simultaneously .

On DATE the first applicant lodged an appeal against the interim decision of DATE . It argued that that decision was unlawful for the following reasons : the rectification had been made by ORG of its own motion ; the decision had been taken in the absence of the parties ; and , in substance , the decision was the disguised substitution of a defendant rather than a correction of a clerical error or an obvious mistake . The first applicant submitted that the limited liability company ORG and the editorial board of the PERSON newspaper were CARDINAL distinct entities : the first was registered as a legal entity , while the second was operating without ORG registration . The fact that ORG had issued a judgment against the wrong entity demonstrated that the adjudication of the case had been superficial and the essential aspects of the case had not been examined properly .

On DATE ORG , by a new interim decision , confirmed its earlier decision of DATE on the rectification of the error regarding the defendant ’s name . The first applicant lodged an appeal repeating the arguments advanced in the appeal statement of DATE .

On DATE ORG examined all the appeals . Both applicants were represented at the hearing by PERSON

ORG quashed the interim decision of DATE on the ground that it had been issued in the absence of the parties , but upheld the interim decision of CARDINAL DATE , which , in its view , was lawful . Thus , it found that counsel who had taken part in the hearing of DATE had represented the interests of the first applicant , the limited liability company ORG . It was clear that the judgment of CARDINAL DATE defined the rights of , and imposed obligations on , the first applicant , because no other organisation had been involved in the proceedings . The amendment of the defendant ’s name had therefore been no more than a rectification of a clerical error not related to the merits of the case and having no effect on the substance of the judgment .

ORG further upheld the judgments of CARDINAL DATE and DATE in substance . In particular , it found that ORG had addressed the applicants’ arguments relating to the existence of an objective link between the contested statements and the plaintiff . It had analysed the tile , structure and contents of the impugned article and had correctly found that its last sentence concerned Mr P. Moreover , it had taken into account that PERSON was not the only one to have understood that the sentence had been directed at him ; other newspapers had also drawn the same conclusion . ORG had therefore correctly required the defendants to prove the truthfulness of their allegations , which they had failed to do . Both applicants had been represented at hearings by counsel , and their procedural rights had therefore been respected . Finally , ORG held that the severance of the claim against the second applicant from the proceedings “ had not involved a substantially incorrect determination of the dispute ” .

ORG found , however , that ORG had incorrectly required the first applicant to publish the retraction statement drafted by the plaintiff . The requirement for an apology , a promise to discipline the author and an undertaking to respect domestic law contained in the retraction statement had no basis in domestic law . The order for immediate enforcement had also been unlawful . The court ordered that the first applicant publish an amended retraction statement . It also reduced the award payable by the first applicant to RUR CARDINAL,CARDINAL ( MONEY ) .

On DATE the first applicant published the amended retraction statement .

On DATE the first applicant was declared insolvent and dissolved .

Article CARDINAL of the Civil Code provides that an individual may apply to a court with a request for the retraction of statements ( svedeniya ) that are damaging to his or her honour , dignity or professional reputation , if the person who disseminated such statements does not prove their truthfulness . The aggrieved person may also claim compensation for losses and non - pecuniary damage sustained as a result of the dissemination of such statements .

ORG Ruling no . CARDINAL of ORG of GPE , adopted on DATE ( as amended on DATE and in force at the material time ) , provided that , in order to be considered damaging , statements had to be untrue and contain allegations of a breach of laws or moral principles ( for example , the commission of a dishonest act , or improper behaviour in the workplace or in everyday life ) . Dissemination of statements was understood as the publication of statements or their broadcasting ( paragraph CARDINAL ) . The burden of proof was on the defendant to show that the disseminated statements were true and accurate ( paragraph CARDINAL ) .

On DATE ORG of GPE adopted Ruling no . CARDINAL , requiring courts hearing defamation claims to distinguish between statements of facts which could be checked for veracity and evaluative judgments , opinions and convictions , which were not actionable under LAW because they were expressions of a defendant ’s subjective opinion and views and therefore could not be checked for veracity ( paragraph CARDINAL ) . Furthermore , it prohibited the courts from ordering defendants to make an apology to a plaintiff , because that form of redress had no basis under NORP law , including LAW ( paragraph CARDINAL ) .

The Mass Media Act ( Law no . CARDINAL-I of DATE ) defines an editorial board of a news medium as an organisation , citizen or group of citizens producing and issuing that news medium . An editorial board may start functioning after State registration of the news medium ( section CARDINAL) . An editorial board may – but is not required to – obtain legal entity status through ORG registration ( section DATE ) . An editorial board must have articles of association adopted by the general assembly of journalists and approved by the founder of the news medium ( section CARDINAL ) .

A publisher of a news medium is defined in LAW as a company or business person responsible for the technical , material and logistical aspects of a production process ( section CARDINAL ) . The editorial board or the editor - in - chief and the publisher must conclude a publishing agreement ( section CARDINAL ) . The functions of an editorial board and a publisher may be combined in CARDINAL legal entity ( section CARDINAL ) .

Founders , editorial boards , publishers and distributers of mass media , as well as journalists and authors of distributed statements may be held liable for a breach of the legal provisions governing mass media ( section CARDINAL of LAW ) . Ruling no . CARDINAL of ORG of GPE ( cited in paragraph CARDINAL above ) provides that in cases where articles have been published in a newspaper , the defendants in an action for defamation must be the article ’s author and the newspaper ’s editorial board . If the author is not indicated , the editorial board will be the sole defendant . If the editorial board does not have legal entity status , the founder of the newspaper will be cited as the defendant ( paragraph CARDINAL ) .

The RSFSR Code of Civil Procedure ( in force up to CARDINAL DATE ) provided that after pronouncing a judgment , a court could not quash or amend it . However , the court could , of its own motion or at the request of a party , rectify clerical errors or obvious errors in calculation . In such a case the court had an obligation to hold a hearing and notify the parties of its date . The parties could appeal against the rectification order ( Article CARDINAL ) .


The applicants , PERSON and PERSON , are NORP nationals , born in DATE and DATE respectively and living in GPE . They are represented before the ORG by Mr PERSON , a lawyer practising in GPE . The respondent Government are represented by Mr PERSON , Director in ORG .

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

On DATE the applicants and CARDINAL other animal rights activists attempted to colour the fur of foxes kept at a farm in GPE , when its owner fired at them with a shot gun , injuring CARDINAL of them , including the first applicant . They were apprehended by the police on DATE at TIME on their way to hospital . CARDINAL of them was later admitted for hospital care .

On DATE at TIME Senior Police Officer PERSON of ORG in PERSON telephoned judge PERSON at FAC ( käräjäoikeus , tingsrätt ) to convey a detention request concerning “ CARDINAL suspects ” , including the applicants .

The respective written requests received at ORG in TIME the same day stated the ORG name , address and identity number and indicated that they were under suspicion for having committed the following offences : CARDINAL count of aggravated violation of domestic peace in GPE on DATE at TIME ; CARDINAL counts of aggravated damage to property in the region of GPE ( GPE ) on DATE ; and CARDINAL counts of damage to property in GPE on DATE . The requests were accompanied by a memorandum by GPE setting out the facts in more detail .

The second applicant ’s continued detention was considered by ORG on DATE from TIME and the first applicant ’s detention was examined from TIME They received copies of the detention request immediately prior to the respective hearings .

Before ORG , defence counsel argued that the detention request concerning the second applicant was inadmissible as it had not been submitted in proper and lawful form before TIME . According to TIME from the hearing , GPE contested counsel ’s argument as he had informed the court before TIME that the request concerned CARDINAL arrested persons held in GPE and connected to the events at the fox farm in GPE . In addition , GPE had informed the court that their detention was being sought in respect of the acts committed in GPE and GPE as well .

In dismissing counsel ’s objection ORG found as follows :

“ Since the head of the investigation [ GPE ] informed the court orally , on DATE before TIME as prescribed by law , that he was going to request ( ilmoittanut tulevansa vaatimaan ) the detention of CARDINAL persons in respect of CARDINAL count of aggravated violation of domestic peace committed in GPE , CARDINAL counts of aggravated damage to property and CARDINAL counts of damage to property , and even though he did not at that stage indicate the names of those whose detention was being sought , [ his ] request was nevertheless confirmed in writing without delay . As there was no risk of any error occurring in respect of the persons and the offences in question , [ the court ] finds that the detention request was made in accordance with the law . ”

ORG went on to dismiss the detention request in respect of all but the first applicant , who was ordered to remain in detention until DATE on suspicion of having committed the CARDINAL counts of aggravated damage to property and the CARDINAL counts of damage to property , as indicated in the request .

ORG further ordered that the case - file , with the exception of the detention order and the legal provisions applied , be kept secret until the first hearing of the charges against the suspects or until the pre - trial investigation against them had been closed . ORG applied section CARDINAL , subsection CARDINAL , of LAW ( laki oikeudenkäynnin julkisuudesta , lag om offentlighet vid rättegång CARDINAL ) .

On DATE the first applicant filed a procedural appeal ( kantelu ) with ORG ( hovioikeus , hovrätt ) , contending that the detention request had not been made in accordance with the law as it had not been filed in writing without delay . The written request had been faxed to her counsel ’s office only at TIME and counsel himself had received it TIME In any case , the offences specified in support of the request did not correspond to those which GPE had apparently communicated to judge NORP over the telephone .

In a written statement to ORG judge PERSON explained that in his telephone call to ORG which GPE had placed on DATE before TIME he had first informed a court secretary that he was seeking the detention of CARDINAL arrested persons connected with the events that had occurred at a fox farm in GPE . Immediately thereafter GPE had informed judge NORP that their detention was also being requested for the acts committed in GPE and GPE . Although GPE had not at that time specified the names of the CARDINAL suspects in question , judge NORP found that there was no uncertainty as to their identities and the offences of which they were suspected . She had therefore concluded that the detention request had been submitted in accordance with law .

In its decision of DATE ORG agreed with ORG , finding that at the time when the detention request had been presented over the telephone there had been no uncertainty as to the fact that the request concerned , among others , the second applicant or as to the offences of which she was being suspected .

ORG maintained ORG secrecy order and further ordered that its own decision , again with the exception of the operative part and the legal provisions applied , also be kept secret until the first hearing of the charges against the suspects or until the pre - trial investigation against them had been closed .

ORG ( korkein oikeus , högsta domstolen ) refused the first applicant leave to appeal on DATE . The decision bore a stamp indicating that it was “ secret ” . It contained the standard reasoning which ORG relies on when refusing leave to appeal , without referring to the applicable legal provision ( see “ Relevant domestic law ” ) :

“ Leave to appeal is refused . ORG decision therefore stands . ”

In the meantime , the first applicant ’s detention had been prolonged . On DATE ORG had ordered her release , having accepted her further procedural appeal of DATE . This appellate court , noting the progress in the pre - trial investigation , found that her continued detention was no longer necessary in order to secure an effective investigation and trial .

According to LAW ( pakkokeinolaki , tvångsmedelslag TIME , as amended by Acts nos . ORG and CARDINAL ) , an arrested person and his or her legal counsel shall be notified without delay of a request for detention on remand ( section CARDINAL ) . Such a request shall be made to the court without delay and not TIME on DATE from DATE of the apprehension of the suspect ( section CARDINAL ) . The request shall be made in writing . It may also be submitted orally or by telephone but shall then be confirmed in writing without delay ( section CARDINAL ) .

According to an expert opinion relied on by the applicants , an oral or telephone request must identify the person , the offence of which he or she is being suspected as well as the ground for the detention ( PERSON , PERSON and PERSON : Uusi esitutkintalainsäädäntö . GPE DATE ) .

A request for detention on remand shall be considered by the court without delay and not DATE from the moment the suspect was placed in custody ( section CARDINAL ) .

An arrested person shall be released immediately when the conditions for his or her arrest no longer exist . If his or her detention on remand is not requested , the release shall take place no later than at the expiry of the aforementioned period for submitting such a request ( section CARDINAL ) .

LAW , section CARDINAL of LAW stipulates that a procedural appeal against detention on remand may be submitted at any time and shall be dealt with expeditiously . In its precedent no . CARDINAL ORG ( by CARDINAL votes DATE ) held that it was not prevented from introducing a leave requirement for such appeals .

Under LAW ( laki yleisten asiakirjain julkisuudesta , lag om allmänna handlingars offentlighet CARDINAL , as in force until repealed by Act no . CARDINAL ) , official documents were in principle public ( section CARDINAL ) . They included not only documents drawn up and issued by an authority but also documents submitted to an authority and which remained in its possession ( section CARDINAL , subsection CARDINAL ) . A pre - trial investigation record , however , was not public until the matter had been brought before a court or the police investigation had been closed without charges being brought ( section CARDINAL ) .

The DATE LAW ( laki oikeudenkäynnin julkisuudesta , lag om offentlighet vid rättegång ORG , as amended by Act no . CARDINAL/CARDINAL ) affords the court the option of holding a hearing in camera , inter alia when examining a request for detention on remand to be dealt with prior to the actual trial , provided such a request has been made by the head of the pre - trial investigation or the suspect himself or if the court deems it necessary to exclude the public from the hearing ( LAW ) . If the suspects requests a detention hearing in camera , the public shall be allowed to attend only for a particularly weighty reason .

If a detention hearing has been held in camera in whole or in part or if , during such a hearing , any confidential document or information has been submitted , the court may decide that all or part of the case material shall be kept confidential until the beginning of the trial or the discontinuation of the investigation . The operative part of the reasoning and the legal provisions relied on shall always be made public ( section CARDINAL , as amended by Act no . DATE ) .

Under LAW , sections CARDINAL of the Code of Judicial Procedure ( PERSON , PERSON Balk ) ORG may only on certain circumscribed grounds grant leave to appeal against a decision or judgment rendered by a court of appeal in appeal proceedings .


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

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

On DATE ORG ( the “ FAC ” ) ordered the PERSON “ ORG ” ( the “ ORG ” ) to pay the applicant ORG CARDINAL,CARDINAL.CARDINAL in compensation for salary arrears .

On DATE ORG ( the “ ORG ” ) upheld this judgment .

According to the documents submitted by the Government , the judgment of DATE was enforced in full on DATE . The enforcement proceedings were terminated on DATE .

On DATE the ORG of the ORG allowed the protest filed by its President , following the defendant company ’s request for a supervisory review , quashed the judgment of DATE and the ruling of CARDINAL July CARDINAL , and remitted the case to ORG for a fresh consideration .

The relevant domestic law and practice in relation to supervisory review proceedings is summarised in the case - law of ORG ( see PERSON v. GPE , no . CARDINAL/CARDINAL , § CARDINAL , DATE ; PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , DATE ; PERSON v. GPE , no . CARDINAL , § DATE , DATE ) .


The applicant is a NORP national living in GPE . She is represented before the ORG by Mr PERSON , a lawyer in GPE .

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

On DATE ORG ( kunnanvaltuusto , kommunfullmäktige ) decided to abolish the applicant ’s post ( personnel secretary ) as from DATE due to a reorganisation of the organic chart of municipal staff . On DATE ORG ( kunnanhallitus , kommunstyrelsen ) confirmed her dismissal . As personnel secretary the applicant was responsible for supervising the calculation of salaries and related matters , interpreting and enforcing applicable collective agreements for municipal officials and employees hired on regular labour contracts , planning staff training and drafting the municipality ’s work plan as far as relating to personnel administration . The reorganisation entailed delegating certain functions to various departments and officials . Other tasks were taken over by the secretary for agricultural matters and the planning secretary , whereas certain tasks were abolished altogether .

The applicant appealed against both decisions , arguing , inter alia , that the decision to terminate her post had not been supported by adequate reasons , had not been preceded by statutory negotiations with her trade union and had been in breach of the DATE LAW ( laki naisten ja miesten välisestä tasa - arvosta , jämställdhet mellan kvinnor och män DATE ) in that CARDINAL of the underlying reasons for her dismissal had been her professional absence due to CARDINAL periods of maternity and parental leave . She further contested ORG decision to confirm her dismissal and its calculation of the period of notice .

On DATE ORG ( lääninoikeus , länsrätten ) of GPE dismissed the ORG appeals . It found , inter alia , that her post had not been of such a nature as to require statutory negotiations preceding the dismissal . As the post had not been required by law ORG had been competent to abolish it . The documentation on file did not disclose any indication that the applicant had been discriminated against as a woman . Neither had the period of notice been calculated incorrectly .

On DATE ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) , by CARDINAL votes to CARDINAL , dismissed the applicant ’s appeal . The applicant had forwarded to the court an opinion of ORG ( tasa - arvovaltuutettu , jämställdhetsombudsmannen ) dated DATE . The court had also received observations in reply from ORG which had not been forwarded to the applicant prior to the court ’s decision .


The applicant , Mr PERSON , is a GPE national , who was born in DATE and is currently serving a sentence of life imprisonment in FAC GPE . He is represented before the ORG by ORG , solicitors practising in GPE .

On DATE , PERSON died as a result of severe burns sustained during an incident in a street on TIME DATE , when he was sprayed with a form of accelerant and the back of his clothing set alight .

As a result of their investigation , the police arrested and charged in GPE CARDINAL men , the applicant , PERSON and PERSON . A fourth man implicated in the incident , PERSON , had gone to GPE . He was arrested and tried in GPE and convicted of manslaughter .

The trial in GPE took place in DATE . The prosecution case was that the applicant and PERSON had set ORG on fire while GPE had assisted by acting , inter alia , as lookout and that PERSON had committed subsequent acts intended to pervert the course of justice ( namely , by covering up the evidence of the incident ) . In the case of the applicant , the prosecution relied on the evidence of witnesses who said that he confessed his involvement to them ; on covert tape recordings of conversations between him and his co - accused ; and on the lies which he had told the police . As regarded GPE , the prosecution relied on his own account that he had watched the applicant and PERSON carry out the attack , making no attempt to leave and doing nothing to prevent what happened . Afterwards he had taken ORG personal stereo . In his case too , the prosecution relied on the covert recordings and the lies he told .

Before the trial , the applicant applied for severance of the trial so that he would not be tried with his CARDINAL co - defendants . He considered that a joint trial would prejudice his defence such that a fair trial would not be possible . This was because both his co - defendants had made statements implicating him in the attack . In particular , GPE in his statement to the police had stated that the applicant and PERSON were not only present but had set fire to the victim . According to the rules of evidence , this statement was evidence against GPE but not the applicant . However although the judge would be bound to direct the jury to that effect , the jury would still hear GPE ’s version of events . It was also unlikely that GPE , who had a history of mental disorder , would give evidence and be available to be cross - examined . At the same time , the applicant applied under section CARDINAL of ORG for the evidence from the covert tapes to be excluded as inadmissible and also relied on the prejudice to his defence from the taped conversations from GPE implicating him .

The judge rejected the applicant ’s application for severance . He took the firm view that this was a case which called strongly for a single trial . He recognised that there was a danger of prejudice in that ruling but pointed out that there was a joint charge of murder and that it would be difficult to have a fair trial of all the accusations if done separately .

“ In this case if tried separately , it is possible that PERSON could be acquitted of murder , and GPE , whose case is that PERSON had carried out the killing , could be convicted . It is also possible that there could be inconsistent verdicts on the individual counts of doing acts tending to and intended to pervert the course of justice .

In the circumstances , although there is some prejudice to all CARDINAL defendants if each is tried with the others , in my judgment , there are no exceptional circumstances which make it necessary for me to order severance . Balancing all the factors for and against severance , I conclude that the interests of justice are best served by a joint trial of the defendants ... ”

The judge also refused to exclude the covert tapes as evidence .

During the trial , neither of the applicant ’s co - defendants chose to give evidence . The applicant did go into the witness box .

On DATE , the applicant was convicted of murder and sentenced DATE to life imprisonment . Constantinou was convicted of manslaughter and a count of perverting the course of justice and was sentenced to a total of CARDINAL years’ imprisonment for manslaughter .

The applicant applied for permission to appeal , on the grounds inter alia that the judge had wrongly refused to order a separate trial . Permission to appeal was refused by a single judge of ORG . He renewed his application . At a hearing held on DATE , ORG considered as regarded the judge ’s decision to try all the defendants together :

“ That was a judgment

[ Counsel for the applicant ] said to us that the exceptional circumstances were the absence of significant evidence against his client , in terms of there being no eye witnesses , no forensic evidence and the dubious nature ... of the persons to whom the confessions had actually been made .

It was not , however , the case that there was no other evidence at all against his client , nor , in our judgment , is it right to say that the jury would necessarily have concentrated on inadmissible evidence in order to understand the case . This was very much a matter for the judge ’s judgment . ORG will not interfere with his ruling in this case .

The judge was , of course , in making that ruling , acutely conscious of the need to direct the jury in the clearest possible terms as to what evidence was admissible and what was not in the case of each man . He said :

‘ ... what Mr Constantinou may have said to PERSON and PERSON to Mr GPE in the absence of PERSON is not evidence against PERSON , and if there are other occasions vice versa as far as PERSON is concerned .

The same applies to what Mr Constantinou may have said to PERSON about PERSON PERSON in Mr PERSON ’s absence , or what Mr PERSON may have said about Mr PERSON or PERSON in the absence of one or other of them .

It is desperately important that you bear that in mind at all times and of course it is important because you are going to be considering , as I have already told you , the cases entirely separately in relation to each.’

The judge was entitled to assume , and this ORG will assume , that the jury understood and acted on a direction that was singled out by the judge as being ‘ desperately important’ as part of their work . That safeguard is and was the proper safeguard for the various defendants . It is the appropriate safeguard in a case such as this . ”

ORG went on to find that the judge had not erred in admitting the evidence of the covert tapes . They rejected the applicant ’s arguments that ORG statement to the police should not have been admitted in evidence as it was entirely self - serving and that the jury ’s verdicts were inconsistent .


Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON .

On DATE the applicant and his wife were involved in a fist fight with a neighbour . Both the applicant ’s wife and the neighbour pressed criminal charges for assault .

On DATE the police summoned the applicant as witness in relation to the assault charges against the neighbour .

On DATE the police ordered that the applicant ’s fingerprints , photographs and a saliva sample be taken for the police records pursuant to section CARDINALb of the Code of Criminal Procedure ( see “ Relevant domestic law ” below ) in connection with assault charges against the applicant .

On DATE counsel requested legal aid for a complaint against the order of CARDINAL DATE .

On DATE the police withdrew the order insofar as it related to a saliva sample .

On DATE the Dessau - Roßlau Administrative Court , sitting as a chamber composed of CARDINAL judges , granted the legal aid request on the ground that it was doubtful whether the order had been lawful . The applicant had not concealed his identity during previous incidents that had resulted in criminal investigations against him . There were no indications that he would do so in the future and that the taking of fingerprints or photographs for the police records would help in criminal investigations .

On DATE ORG , sitting in single judge formation , dismissed the complaint , holding that the conditions of section CARDINALb of LAW had been met . In view of previous criminal investigations against the applicant and his aggressive behaviour , the court found sufficient grounds to believe that it was likely that the applicant would be suspect in criminal investigations concerning assault in the future . The court further held it to be irrelevant that the applicant had always been known to the victims in the past and that his identification had not posed problems for the police , since the suspects for assault were not always known to the victims and it could not be ruled out that potential victims would be unaware of the applicant ’s identity in the future .

Counsel requested legal aid for the appeal proceedings and requested leave to appeal .

On DATE ORG of the Land Saxony - Anhalt refused legal aid for lack of prospect of success as well as leave to appeal . It noted that the taking of fingerprints and photographs for the police records was a preventive measure aimed at facilitating future criminal investigations against unknown suspects . It further noted that the administrative court had sufficiently established that the conditions of section CARDINALb of LAW had been met in view of the incident of DATE and CARDINAL other criminal investigations against the applicant concerning assault , defamation , coercion , child abuse and abuse of a position of trust , none of which had resulted in charges being preferred against the applicant . ORG rejected the applicant ’s submission that the conditions of section CARDINALb of LAW had not been met in view of the incident of ORG , since all QUANTITY criminal investigations against the applicant had to be taken into account .

On DATE the applicant , acting pro se , lodged a constitutional complaint with the aim that ORG “ wrong decision ” be set aside on the grounds that the administrative courts had not been independent ; that the single judge had not duly considered the decision of CARDINAL judges to grant legal aid ; that the courts had wrongly taken into account criminal investigations against him since he had never been convicted ; that the aims of the authorities had been to debase , to criminalise , to dishonour and to humiliate him ; and that the authorities had attempted to further increase his debts by ordering him to pay excessive court fees . He submitted that the police had coerced the administrative court into perverting the course of justice and that the courts had covered up the illegal actions of the police . He lastly asserted that ORG was not a Land based on the rule of law and that everyone who was willing to complain about illegal police actions like himself was discriminated , unjustly persecuted and silenced using methods of ORG ( the secret service of the former GPE ) .

On DATE the ORG refused to admit the applicant ’s constitutional complaint for examination without giving further reasons ( no . CARDINAL BvR CARDINAL/CARDINAL ) .

Pursuant to section CARDINALb of LAW photographs and fingerprints of the accused may be taken , even against his will , and measurements may be made of him and other similar measures taken which are required for the purposes of conducting the criminal proceedings or of the police records department .

The constitutional right to privacy , enshrined in Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW , read together , guarantees that an individual may decide what personal information to disclose and to whom ; it also protects individuals from unlimited investigations as well as storage and passing on of personal data without their consent . Infringements of this right are only permissible in the general interest , on the basis of an act of parliament or delegated legislation , and insofar as the impugned measure is proportional to the legitimate aim pursued ( see , amongst many others , ORG , judgment of DATE , published in BVerfGE CARDINAL , p. CARDINAL ( at pp . CARDINAL et seqq . ) ) .

According to LAW the reasons for the complaint shall specify the right which is claimed to have been violated and the act or omission of the organ or authority by which the complainant claims to have been harmed .


The applicant , Mr PERSON , is a GPE national who was born in DATE . He was represented before the Court by PERSON , a lawyer from the ORG centre in GPE . On DATE , the ORG was informed of the applicant ’s death . His son , Mr PERSON , expressed the wish to pursue the application . He is represented by PERSON .

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

On DATE , the applicant bought a plot of land situated in ORG ( GPE ) . The purchase was registered in ORG ( Conservatória do PERSON ) of ORG . The previous owner of the land had applied to ORG ( ORG ) seeking permission for the land ( including the plot of the applicant as well as other plots ) to be developed for urban construction . ORG granted a construction permit ( alvará ) on DATE .

On DATE , the Public Attorney instituted proceedings against ORG in ORG Tribunal Administrativo de círculo ) of GPE . He submitted that the decision passed by ORG granting the permit was void , as some administrative procedures had not been followed . The Public Attorney asserted that when the permit was granted , ORG had not drawn up a formal plan for the urbanisation of the area . In those circumstances , the previous approval of ORG ( ORG ) was necessary pursuing to LAW no . CARDINAL/CARDINAL of CARDINAL DATE . As such approval had not taken place , the permit was null and void . Finally , the Public Attorney asked the ORG to serve summonses on the individuals having bought land on the area in question as private defendants .

The applicant filed his defence on DATE . He submitted that he had purchased the property in good faith and that he was unaware of any alleged failures in the issue of the permit . In his view , even if ORG annulled the permit , that could not affect his rights .

On DATE , the judge suspended the proceedings in view of the death of CARDINAL of the private defendants .

By a decision of DATE , the judge considered that the proceedings could be resumed .

On DATE , ORG gave its judgment in favour of the Public Attorney and declared the construction permit granted by ORG to be null and void . The applicant was notified of this decision on DATE .

On DATE , the applicant filed an appeal against this judgment with ORG .

On DATE , ORG rejected the appeal .


Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

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

The Government of GPE ( “ the Government ” ) were represented by their Agent , PERSON .

In DATE the applicant , who is a pharmacist , entered into a contract for the supply of drugs and medical equipment with a hospital , which at that time was owned by and responsible to the ORG . The contract was extended in DATE and again in DATE and remained in place until DATE .

In DATE the hospital ceased paying the applicant , with the consequence that the applicant became unable to pay his sub - contractors and thus incurred late - payment penalties , lost business and sustained damage to his goodwill . The applicant eventually became insolvent and went out of business .

Meanwhile the ownership and administration of the hospital had gone through a restructuring , in the course of which , on DATE , the hospital was transferred from the ORG ’s administration to that of a municipality by the operation of PERSON no . PERSON .

On DATE the ownership of the assets of the hospital was transferred to the municipality by the operation of Law no . CARDINAL Coll . Due and unpaid debts and liabilities , however , remained with the hospital .

DATE the municipality established a non - profit organisation which took ownership of the hospital ’s assets .

The applicant asserted his property claims originating in the contract mentioned above by means of civil actions against the hospital and the municipality . This gave rise to a number of civil proceedings , CARDINAL of which are still pending before ORG ( ORG súd ) .

The applicant was successful in obtaining a number of judicial orders for payment in his favour , including a payment order ( platobný rozkaz ) issued by ORG on DATE against the hospital for the payment of the equivalent of MONEY ( ORG ) .

On the basis of the judicial orders for payment in favour of the applicant , DATE the applicant initiated DATE sets of enforcement proceedings under LAW ( PERSON no . CARDINAL , as amended ) . CARDINAL of these enforcement actions were terminated upon the applicant ’s request . CARDINAL sets of proceedings resulted in a successful recovery of the adjudicated claims . CARDINAL action is still pending because the underlying civil proceedings are still pending .

On DATE ORG declared the enforcement of the above - mentioned payment order of DATE against the hospital improper ( neprípustná ) and terminated the proceedings . It observed that the applicant had petitioned for the enforcement on DATE , that pursuant to LAW no . PERSON . the hospital had been transferred from the ORG ’s administration to that of a municipality , that by virtue of section CARDINALa(CARDINAL)(a ) of LAW ( Law no . CARDINAL/CARDINAL Coll . , as amended by PERSON no . PERSON . ) the hospital ’s liabilities had not been transferred to the municipality and that , on DATE , the hospital had been wound up . In relation to the claim in question , the hospital had been wound up without a legal successor . No enforcement could accordingly have been directed against it .

The above decision could have been challenged by way of an appeal but no appeal was filed by the applicant . It thus became final and binding on DATE .

The applicant requested that the Prosecutor General challenge the legislation concerning the transfer to municipalities of assets without a corresponding transfer of liabilities in ORG .

NORP By letter of DATE the Prosecutor General informed the applicant that liabilities which had not been transferred to the municipalities had not been left unassigned but , by operation of CARDINAL ) of LAW ( Law no . PERSON . , as amended ) , remained with the government department originally responsible for overseeing the now restructured entity . In the case of the applicant ’s contractual partner , the hospital , such unsettled liabilities remained with ORG ( “ the Ministry ” ) .

DATE ( Constitutional Law no . PERSON . , as amended ) provides :

“ CARDINAL . The Constitutional Court shall decide complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court .

NORP If ORG finds a complaint justified , it shall deliver a decision stating that a person ’s rights or freedoms as set out in paragraph CARDINAL have been violated by a final decision , specific measure or other act and shall quash such decision , measure or act . If the violation that has been found is the result of a failure to act , ORG may order [ the authority ] which has violated the rights or freedoms to take the necessary action . At the same time it may remit the case to the authority concerned for further proceedings , order such authority to refrain from violating the fundamental rights and freedoms ... or , where appropriate , order those who have violated the rights or freedoms set out in paragraph CARDINAL to restore the situation to that existing prior to the violation .

NORP In its decision on a complaint ORG may grant appropriate financial compensation to the person whose rights under paragraph CARDINAL have been violated . ”

The statutory bar to the enforcement of financial claims against healthcare establishments was laid down in different pieces of legislation and its duration , always intended to be temporary , was extended several times . The precise scope of the bar has also varied over time .

The bar has its origin in Article CARDINAL of LAW of DATE ( Law no . PERSON . , as amended ) , such Article being incorporated into the code by PERSON no . PERSON . The bar was , in this implementation , intended to last until DATE .

Article CARDINAL of the amended Enforcement Code of DATE was repealed by ORG by virtue of its judgment of DATE ( published in LAW under no . CARDINAL ) with effect from DATE . ORG found the bar unconstitutional because it created an unjustified difference between the treatment of healthcare establishments and other debtors .

With effect from DATE , a new statutory bar to enforcement of financial claims against health - care establishments was introduced into ORG by the operation of Law no . PERSON . In particular , enforcement was not permissible against the financial assets and income of health - care establishments in so far as such monies were allocated for providing and maintaining health care and related services , nor against assets belonging to health - care establishments which were purchased out of funds deriving from the insurance premiums paid by the establishment ’s users and which were indispensable for the running and maintenance of the establishment .

On DATE a new bar entered into force by virtue of an amendment ( Law no . CARDINAL/CARDINAL Coll . ) to ORG . It introduced a new section CARDINALa to the code , stated to apply until DATE . Under sub - section CARDINAL ( d ) of that provision , enforcement could not be aimed at attaching the property of health - care establishments obtained via insurance premiums or property to be used for providing health care .

In DATE a new constitutional challenge to the bar , as it then stood , was brought by a group of Members of ORG . It was accepted by ORG to the extent that , in its ruling of DATE ( published in LAW under no . CARDINAL/CARDINAL ) , it suspended the legal effect of the bar . However , ORG has never ruled on the merits of the bar , as it expired while the constitutional challenge was pending . In its decision of DATE ORG nevertheless made a formal note of its DATE ruling , considering it a part of its case - law .

The bar was most recently extended until DATE by the operation of Law no . CARDINAL/CARDINAL Coll . , which introduced a new section ORG LAW to ORG ( Law no . CARDINAL/CARDINAL Coll . , as amended ) .

On DATE the bar expired and has ceased to exist with effect from DATE .

LAW ( Law no . CARDINAL/CARDINAL Coll . ) has been amended numerous times . Amending PERSON no . PERSON . entered into force on DATE and introduced new sections CARDINAL ) and CARDINAL ) , pursuant to which a municipality does not take over liabilities for the supply of goods , works and other contractual performance which have been assumed by the administrator of ORG property in connection with different types of property transferred to the ownership of the municipality and which liabilities are due or were not settled on DATE of the transfer of the property from the ORG to the municipality .

NORP Under CARDINAL ) of LAW ( Law no . PERSON . , as in force since DATE ) , liabilities of the ORG which have not been transferred to a municipality or a self - governing region together with a transfer of functions of attributable to a government department and the right of ownership of related assets remain liabilities of the government department or the body that exercised the functions of the government department .

Section CARDINAL ) provides that liabilities of the ORG which are not transferred to a municipality or a self - governing region together with a transfer of functions attributable to a government department on DATE remain liabilities of the central government body responsible for the area in which the functions are transferred to the municipality or the selfgoverning region .

Article CARDINAL of LAW provides for the possibility of carrying out enforcement proceedings against a different person than the debtor identified in the enforceable decision . Such enforcement is possible if it is established that the adjudicated liability has been transferred to such a different person . It is the responsibility of the parties to the enforcement proceedings to notify the enforcement officer of any such transfer .


Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award

On DATE the applicant ’s father was convicted of an offence on the ground that he had kept , contrary to the regulations then in force , CARDINAL gold coins and CARDINAL silver coins of numismatic value . He was sentenced to DATE imprisonment . He was also fined and the coins were confiscated .

On DATE ORG of GPE ( Najvyšší súd ) quashed , in the context of judicial rehabilitation provided for by LAW of DATE , the judgment of CARDINAL DATE including all consequential decisions and discharged the applicant ’s late father .

On DATE the applicant claimed the restitution of his father ’s coins under LAW of DATE .

On DATE ORG Okresný súd ) granted the action and ordered ORG to restore the coins to the applicant . The court established , with reference to the relevant records , that the coins had been taken away from the applicant ’s father on DATE and that they had been transmitted to ORG in GPE on DATE . On DATE the coins were examined by an expert and inventoried in the premises of ORG in GPE .

The relevant part of ORG judgment reads as follows :

“ It is true that the law requires that a person claiming restitution of movable property should indicate and show where such property is . However , in the present case the plaintiff undoubtedly has no possibility of inspecting the LOC or safes of the former ORG in GPE as he is not allowed to enter those LOC . By insisting that the applicant should show that the coins are at the last known place the court would impose a burden of proof on him which it is practically impossible to fulfil . On the contrary ... ORG neither showed that the former ORG in GPE had transferred the coins to a different authority nor did it propose to take evidence to that effect ...

The court established that the last time the coins ... had been held in the premises of ORG in GPE to which ORG is a successor , and it has not been shown that the coins were not in those LOC when FAC became operative , i.e. by DATE . ”

On DATE ORG appealed . Its representative argued that all relevant documents had been destroyed and that the onus of proof as regards the deposit of the coins lay on the applicant .

On DATE ORG ( Krajský súd ) dismissed the applicant ’s action . It found , with reference to Sections CARDINAL ( CARDINAL ) , CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) of LAW of DATE , that the applicant had failed to show where the coins had been deposited when that Act had become operative on DATE .

In the judgment ORG admitted that the applicant had limited possibilities of locating his father ’s property . It therefore took further evidence of its own initiative . In particular , ORG noted that in accordance with the relevant practice the confiscated property should have been handed over to the public prosecutor and , after the relevant judgment had became final , to the financial department of the competent local government authority . ORG therefore examined the criminal file concerning the case of the applicant ’s father . It further established that the archives of ORG , of ORG , of ORG and of ORG in GPE contained no document relating to the coins in question . ORG also heard a witness who had worked at ORG of ORG in DATE . However , the latter had no knowledge of the case .

On DATE ORG ( Najvyšší súd ) dismissed the applicant ’s appeal on points of law . It shared ORG view according to which the applicant had failed to produce evidence that the defendant Ministry was in possession of the coins as required by Section CARDINAL ( CARDINAL ) of LAW of DATE .

In the judgment ORG further stated :

“ The allegation that the movable property in question had been taken over by an employee of ORG in GPE on DATE and that ... it had been examined there by an expert on DATE can not suffice . Since then a considerable period lapsed during which the golden and silver coins in question could have been alienated , destroyed or lost . The legislator , however , explicitly included in LAW ) of FAC the obligation to show where the movable in question is at the moment of the entry into force of that law .

... it follows from logical and systematic interpretation of LAW ( CARDINAL ) of LAW that a restitution claim can only concern the same property which was taken over by the ORG and not a different object of the same kind . Only movable property which can be individually identified by its specific features thanks to which it cannnot be interchanged with other objects is therefore liable to restitution ... ”

Act No . DATE on ORG ( PERSON o súdnej rehabilitácii ) entered into force on DATE . The relevant provisions read as follows :

“ The aim of the LAW is to authorise the quashing of convictions for offences where such convictions are incompatible with the principles of a democratic society respecting the political rights and freedoms enshrined in the LAW and set out in the international documents , ... to ensure social rehabilitation and adequate material compensation for the persons [ so ] convicted ... ”

“ CARDINAL . The conditions under which the provisions of this Act shall apply to claims resulting from quashed confiscation decisions ... as well as the manner of redress and the scope of such claims shall be defined in a special law . ”

Act No . CARDINAL/CARDINAL on LAW ( PERSON o mimosúdnych rehabilitáciách ) became operative on DATE . Its preamble stipulates that it was adopted with the aim of mitigating the consequences of certain infringements of property rights as well as of other rights which occurred between CARDINAL DATE and DATE . The relevant provisions of the Extra - Judicial Rehabilitations Act read as follows :

“ CARDINAL . This Act relates to the mitigation of the consequences of certain infringements ... which arose DATE and DATE ... and which are incompatible with the principles of a NORP society respecting the rights of citizens as enshrined in the Charter of ORG , LAW and the ensuing international pacts on civil , political , economic , social and cultural rights .

This Act also lays down the conditions for submitting claims resulting from quashed sentences by which property was confiscated as well as the manner of redress and the scope of such claims . ”

“ CARDINAL . Persons obliged [ to restore the property ] comprise the ORG or legal persons having confiscated property in their possession at the date when this LAW becomes operative ...

Any natural person who [ unlawfully ] acquired property from the ORG is also obliged to restore such property ... ”

“ CARDINAL . A person obliged [ to make restitution ] shall restore the property upon a written request provided that the person [ claiming the property ] proves that he or she is entitled to have the property restored and shows in which way it was taken away by the ORG . When claiming restitution of movable property [ the person concerned ] is further required to show where the property is ... ”

“ CARDINAL . Financial compensation may be granted to the person concerned only in respect of real property which can not be restored ...

When the ORG acquired , on the basis of a judicial decision which was quashed under LAW no . CARDINAL/CARDINAL on Judicial Rehabilitation ... , the entire property of a citizen and when such property did not comprise real property , the person concerned is entitled to compensation in the amount of CARDINAL NORP korunas ... ”

“ CARDINAL . The persons obliged [ to restore confiscated property ] shall comprise any legal person referred to in LAW ) , any natural person referred to in LAW ) who acquired such property from the ORG where the ORG itself obtained it as a result of a judicial decision , and the competent central government authority .

The persons obliged to restore confiscated property shall do so in accordance with Sections CARDINAL , ... of the LAW . When it is impossible to restore the property the persons concerned are entitled to claim compensation pursuant to LAW of [ this ] LAW . ”