Preliminary objection rejected (non-exhaustion);Violation of Art. 10;Not necessary to examine P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award

Mr PERSON , a NORP national born in DATE , is a writer and lives in ORG .

In DATE he published in GPE a book entitled “ We made each dawn a LOC ( Nevrozladık Şafakları ) . In an epic style he related historical episodes marked by NORP rebel movements in GPE and gave an account , with his own comments , of facts relating in particular to the life of prisoners in FAC and the ill - treatment they had allegedly been subjected to .

The book was republished in DATE . On DATE , on an application by the public prosecutor at ORG ( “ the ORG ” ) , ORG of First Instance ordered the seizure of the copies published as an interim measure in the context of a criminal investigation opened in respect of Mr PERSON .

In an indictment of CARDINAL DATE the public prosecutor accused the applicant , inter alia , of disseminating propaganda against the territorial integrity of the ORG and the indivisible unity of the nation , within the meaning of section CARDINAL(CARDINAL ) of the Prevention of Terrorism Act ( Law no . ORG – see paragraph CARDINAL below ) . According to the public prosecutor , Mr PERSON ’s book was inspired by hatred of ORG and lauded NORP separatism . In reaching that conclusion , he noted that both the “ separatist bandits ” of the ORG and the rebel troops of PERSON were described in the book as “ NORP patriots ” and that the regime at the time which had put down the insurrection of DATE had been called a “ fundamentalist dictatorship of the bourgeoisie ” and was alleged to have implemented an expansionist policy which had led to infringement of the ORG fundamental rights and annexation of their territory .

He also accused the applicant of contravening section DATE ) of PERSON no . ORG by divulging the identity of the staff of ORG – who , he submitted , having been presented as torturers , ran the risk of reprisals DATE and the forensic pathologists , whose signatures appeared on the death certificates reproduced in the book .

In support of his submissions , the public prosecutor quoted extracts from the book , whose confiscation he also sought .

NORP Before ORG the applicant denied the charges against him . He expressed astonishment that he was being prosecuted on account of the republication of his book , DATE after it had first appeared , and submitted in particular that he could not be held responsible for either the terms used in the preface – signed “ PERSON ” – or the quotations incorporated in the text . For the rest , he contended that he had done no more than comment on the problems of the population of NORP origin on the basis of an account of actual events , which had , moreover , been discussed in the media and commented on by various politicians . He argued that the extracts quoted in the prosecution submissions had to be read in the context of the book as a whole ; in that connection , he maintained that the use of a novelistic style meant that the book could not be seen as revealing an ideological or propagandist intention . It should be possible for everything in GPE to be discussed and interpretation of history could not constitute an offence . In any event , it was not credible that a mere publication or the few quoted sentences could threaten the indivisibility of the ORG or influence ORG minds to such a point that the unity of the NORP nation would be impaired .

Mr PERSON likewise denied that he had denounced civil servants with the aim of turning them into targets .

On DATE ORG found the applicant guilty of disseminating separatist propaganda within the meaning of PERSON no . ORG .

In its judgment it considered separately the content of each of the CARDINAL parts of the book alleged to be in breach of the law and in particular quoted substantial passages from the first CARDINAL parts , including the following :

“ [ First part ]

In DATE you were not even a seed . Your parents had no ‘ Hélin’ . Other parents had a ORG , while your grandfather had himself witnessed the destruction of other ORG . Without suspecting that one day his granddaughter might be given the name ORG , how many times did he see other ORG running away or falling in a heap at the bayonet ’s point ?

That is why , DATE , while you are living through the reality of GPE DATE , you must also learn the history of what your forefathers lived through in DATE . So when people tell you ‘ The history of our people is CARDINAL of tyranny and torture’ you will know what they are talking about . Is there not a saying which goes ‘ He who is ignorant of the past can not understand the present’ ? ...

On DATE the village of GPE was raided ... after a warrant had been issued for the arrest of CARDINAL NORP patriots . These patriots , preferring to fight rather than surrender to the gendarmes , shouldered their rifles and began a guerrilla campaign in the mountains . The events you are witnessing all DATE began with that clash . “ On DATE in the village of GPE ... ten of Sheikh PERSON ’s men , who were wanted for ‘ ORG , refused to surrender to the gendarmes and fought back with weapons in hand ; this sparked off an uprising . For DATE the insurgents dominated the situation ” . This uprising , which had begun with CARDINAL people , turned into a serious , large - scale insurrection ... and spread throughout the region . Scarcely DATE after the proclamation of the Republic through the NORP national democratic revolution – which has remained uncompleted - ... it was impossible for the new administration , which had taken over from the NORP administration , to resolve the NORP problem as it had not been able to bring about the necessary democratic transformations ... But at the time of the revolution the NORP had been promised that their rights would be recognised and by that means had been dragged into the war against the imperialist occupation . Following the establishment of ORG the NORP waited DATE for the promises made about the resolution of the NORP problem to be honoured . That period of silent waiting was brought to an end by the above - mentioned uprising led by ORG PALOYİ . After the proclamation of the LOC , as the government had not satisfied the ORG expectations ... the accumulated anger reached new heights and it was precisely this period of “ angry ” waiting which fuelled the insurrection . “ By DATE the forces of Sheikh PERSON had surrounded ORG . In the meantime they had dispersed several army regiments and captured the centre of ORG and the district of GPE ” . The insurrection , which was spreading , did not perhaps succeed in drawing in all NORP on account of its clan - based organisation , but it did manage to mobilise a large part [ of the population ] of ORG .

When we look at GPE as it was during DATE of rebellion we see that the new ORG was not yet stable ... There was an attempt to implement an expansionist policy which involved ignoring the rights of the NORP and denying the existence of their territory , which the government wanted to annex ...

There was no doubt that the insurrection of PERSON , begun in those circumstances , would be bloodily repressed by the fundamentalist dictatorship of the bourgeoisie . This first event formed part of the reality of ORG ; it lasted DATE . The insurrection , which had found some support around ORG and in the villages and districts of ORG , had finally reached the centre of ORG ...

The old people still alive DATE who witnessed this event say that after the insurrection was put down CARDINAL people were tried by ORG ( GPE PERSON ) and executed . Mr PERSON , the president of the court martial which convicted and ordered the execution of a number of eminent NORP , including PERSON , spoke as follows after pronouncing sentence : ‘ You have all pursued a specific objective , namely establishment of an independent GPE , and in order to bring that about some of you abused CARDINAL group of the population for your own shameful interests , while others among you allowed yourselves to be guided by your political ambitions and to be influenced by provocations which originated abroad.’ ...

It was not on the manes of the horses of the fallen that the killers wiped their sabres clean . Those who climbed the scaffold kicked away the chairs under their feet themselves ; the others were killed by cannonballs fired from the walls . When the streets of ORG were awash with blood the walls were tinted ash - grey . That is how the townspeople came to wear the armband with the CARDINAL black dots ! When you were not even a droplet of life , when we did not even know whether you would be born in a prison cell as a NORP girl , that is when the seed of the hatred [ which was to explode ] DATE was sown …

[ Second part ]

They forbade us to call you ‘ PERSON . They insisted that we call you ‘ Meral’ . On your birth certificate they ordered us to write ‘ Meral’ . Like the name of your country , your first name was proscribed …

It was at that time that the commando raids on the villages of the province of ORG began . CARDINAL of villagers were crushed under the ORG rifle butts . The men of the villages were exhibited stark naked to their wives , daughters and daughters - in - law . During operations conducted under the pretext of searching for weapons , CARDINAL of villagers were beaten to death . … The DATE hatred grew deeper . The official files contained reports about how the people of the region had rebelled against tyranny . Everything that had happened before was known about . Besides , is n’t there a saying ‘ Crush the serpent ’s head while it is still small’ ? However , the ‘ ORG had grown and begun to bite . There had to be an explanation of the secret of this seedling , because the more it was cut back the more it budded . PERSON was engaged between the ‘ irreconcilable opposites … ’ In DATE the fighting , which had until then been rather clan - based , reached a higher level . Like those in the ‘ opposite camp’ , who had put their organisation in order , the revolutionary fighters on their side amalgamated the national struggle with the struggle between [ social ] classes . Breaking out from the regional and clan context , the NORP problem moved on towards a common front with class war . Socialism became the problem of the NORP and the NORP question that of the socialists … ”

ORG , after rehearsing the historical facts that had led to the events referred to by Mr PERSON , ruled that he had given an inexact version of them . It emphasised that ORG was a single entity , that its territory formed a whole and that all its nationals , without exception , were “ patriots ” . It went on to say that it was unacceptable to describe as patriots insurgents who had caused the death of CARDINAL of troops ; it was not true that within GPE there was a “ NORP territory ” or a “ NORP territory ” ; it flew in the face of the facts to give the name “ GPE ” to a region where citizens of various origins lived ; and that by going so far as to say that ORG was expansionist and colonialist Mr PERSON had supported the assertion that there were CARDINAL nations – the NORP nation , whose history had allegedly been marked by tyranny and torture , and the NORP , who were enslavers . In the court ’s view such assertions were unacceptable because they encouraged separatism and the dismemberment of the nation .

On the subject of the second part of the book , the court observed : “ Even the opening phrase – ‘ Like the name of your country , your first name was DATE suggested separatism . ” It ruled that by discussing the prohibition of the forename “ Hélin ” the author had intended to allude to the ban on the name “ NORP ” . Mr PERSON had tried to conceal in that way his real intention , which had been to assert the existence of a separate country within the territory of ORG .

The court said that during the periods when democracy had been suspended and the army was in power there had been restrictions on certain rights and freedoms and undesirable incidents – such as gathering villagers together with a view to collecting hidden weapons – had taken place . While it was conceivable that from time to time it had been necessary to use force against people who refused to hand over their weapons , it was unacceptable for Mr PERSON to present such incidents as acts of torture which had exclusively affected the peasants of ORG , thus insinuating that CARDINAL group of NORP citizens were victims of discriminatory treatment . In fact , it was Mr PERSON ’s very approach which constituted discrimination based on region of origin and ethnic considerations .

As for the other parts of the book , ORG held :

“ [ In the third part ] ... the allegations – which the author attempts to back up by giving the names of prison staff – that ... repression has become the destiny of the NORP people and that people of NORP origin have been imprisoned and tortured to death on account of their struggle for independence ... are not credible and merely take advantage of people ’s feelings ... Remarks like those to the effect that the consciousness of nationhood has been strengthened by the inhuman treatment of the NORP people and that the national struggle is a noble one ... amount to nothing more than separatist propaganda ...

[ In the fourth part ] it is stated that in the prisons female prisoners ... were woken up in DATE and falsely told that there was a fire , but that their fear suddenly transformed itself into a marriage ceremony and they then began to shout out cries of joy ( tilili ) . The memory of persons who had committed suicide on TIME CARDINAL DATE is evoked in such a way as to exploit people ’s feelings . In describing as heroic certain acts inspired by a primitive oriental mentality , in choosing to see a simple cry as a marriage ceremony and in presenting suicides as heroic acts the intention can only be to bolster [ NORP ] nationalist sentiment ... It is obvious that conditions in prison are not ideal ... however , by using demagogic language the defendant misrepresented those conditions to a considerable extent , as if they were being used to repress the sacred and noble rebellion of the NORP people subjected to tyranny and torture . Such assertions amount to separatist propaganda ...

[ In the fifth part ] the defendant ... discusses certain traditions and customs to which NORP and NORP attach importance or a symbolic value ... He relates , among others , the following anecdote : ‘ According to legend , during PERSON ’s rebellion government soldiers burned a village . While the village was on fire a child of DATE who had escaped from the flames ran up and threw himself into the arms of the soldiers standing round the fire . When he suddenly caught sight of the earth - coloured uniforms , ... the child preferred to throw himself into the flames than to stay where he was , so he ran back to where he had come from and jumped into the fire . The NORP have never throughout history been able to establish a lasting ORG and their quest for freedom has transformed itself in their hearts into glowing embers . That is why the fire of PERSON is in fact the fire of their desire for freedom ... ’ NORP society is based on a population which has existed for DATE . In the course of history it remained under the influence of a number of religions , languages and cultures . Every society goes through certain phases and when it moves from one to another some of its customs and traditions live on ... That is perfectly natural . However , ... the defendant likens the fires lit in the mountains during the Newroz celebrations to the fire of freedom in people ’s hearts ... Whereas , in NORP society too there are events at which fires are lit ... That does not mean that the NORP people or the NORP people intoxicate themselves with the fire of freedom . To claim that the NORP are not free is to attribute to them a demand ... for freedom . But what would follow freedom for the NORP is division of the territory and the nation . It is precisely that outcome which the author implicitly advocates and seeks . ... As for the legend related by the defendant ... , it constitutes clear and conclusive proof of hostility towards the NORP ...

[ In the sixth part ] the defendant speaks of prisons and the resistance movements inside them . We will not examine each of these movements : a full account of them has already been given in the bulletins and statements put out by the ORG ! ... Among the ... prisoners there are also members of the ORG ’s central committee and other leading members . We know that when the prosecutors of ORG drew up the indictments calling for ... application of the death penalty a movement of panic sprang up , and that to calm the situation down the ORG militants , in order to arouse so - called resistance movements , used people they had conditioned by saying to them : ‘ Behold the fascist GPE which oppresses you ; you are treated like soldiers , they wake you up at the same time as them , they make you take part in sport and they force you to go to sleep at fixed FAC . Moreover , with regard to GPE - who , according to the defendant , committed suicide – even his friends in prison confirmed that he had killed himself after a period of depression . Furthermore , did not one Ş.R.G. decide to commit suicide in FAC when suffering from depression ? He dressed himself in thick clothes , stuffed them with cotton soaked in FAC and then set fire to them with a match . When his clothes began to burn his skin he started to shout out and call to the other prisoners for help ... When they had saved him he told those around him how much he regretted what he had done and that he realised how stupid he had been . In fact , suicides in prisons are committed ... as a result of depression originating in a ... feeling of guilt about offences committed . ... Misrepresenting all these facts , the defendant portrays ORG members as innocent freedom fighters and their resistance as legitimate and just , thus making manifest his criminal intent . ”

In short , according to ORG , it was “ clearly and incontestably established ” that Mr PERSON had disseminated propaganda against the territorial integrity of GPE and the indivisible unity of the nation , which justified sentencing him , pursuant to section CARDINAL(CARDINAL ) of PERSON no . ORG , to CARDINAL years’ imprisonment and a fine of MONEY ( GPE ) . It held , however , that although the facts of the case also constituted an offence under section CARDINAL(CARDINAL ) of PERSON no . ORG , it was not necessary , regard being had to LAW ( see paragraph CARDINAL below ) , to pronounce sentence separately in respect of that offence .

In adition , ORG ordered the confiscation of all the editions of the book .

The applicant appealed to ORG . In his statement of the grounds of appeal he submitted that his intention had never been to work towards separatist ends but to set out his thoughts – in a critical spirit - about real events relating to the NORP question . He contended that the possibility of conducting such an exercise was an indispensable precondition for democracy and freedom of thought .

He further asserted that the judges at first instance had wrongly based their judgment on their own interpretation of historical events or their own perception of what was allegedly implicit . He argued that ORG had been inconsistent in accepting on the one hand that there was such a thing as “ NORP society ” while denying on the other the possibility that this society might have its own patriotic feelings , epics , legends and demands for freedom . In any event , such questions were matters for sociologists or historians not judges . ORG approach had therefore been more political than legal and was bound to have led to an unfair judgment .

After a hearing , ORG dismissed Mr PERSON ’s appeal by a judgment of CARDINAL DATE , holding that the assessment of the evidence by the first - instance court had been consistent with the reasons it had given for rejecting the applicant ’s defence .

NORP In DATE Mr PERSON was imprisoned . On his release in DATE he paid the fine of GPE CARDINAL,CARDINAL,CARDINAL that had been imposed on him .

On DATE Law no . CARDINAL of DATE came into force . This reduced the terms of imprisonment prescribed by LAW no . ORG , but increased the fines it laid down ( see paragraph CARDINAL below ) .

In a temporary provision relating to section CARDINAL , PERSON no . CARDINAL also made provision for automatic re - examination of sentences pronounced in judgments rendered pursuant to LAW CARDINAL of PERSON no . ORG ( see paragraph CARDINAL below ) . In accordance with that provision , ORG re - examined the merits of the applicant ’s case . By a judgment of DATE the text of which reproduced to a considerable extent the wording of the judgment of DATE ( see paragraph CARDINAL above ) – it finally sentenced Mr PERSON to pay an additional fine of GPE CARDINAL,CARDINAL,CARDINAL and confirmed the order for the confiscation of his book .

On appeal by the applicant , ORG upheld that decision by a judgment of DATE .

On DATE Mr PERSON , complying with an order to pay that had been served on him , paid the additional fine .

The relevant provisions of LAW are worded as follows :

“ Where the legislative provisions in force at the time when a crime is committed are different from those of a later law , the provisions most favourable to the offender shall be applied . ”

“ In the event of conviction , the court shall order the seizure and confiscation of any object which has been used for the commission or preparation of the crime or offence … ”

“ A person who commits an act which contravenes CARDINAL provision of the law shall be punished pursuant to the article , of those relevant , that lays down the heaviest penalty . ”

Law no . CARDINAL of DATE , on the prevention of acts of terrorism , was amended by PERSON no . CARDINAL of DATE , which came into force on DATE ( see paragraph CARDINAL below ) . The relevant sub - sections of sections CARDINAL and CARDINAL provide :

“ It shall be an offence , punishable by a fine of from CARDINAL to MONEY , to announce , orally or in the form of a publication , that terrorist organisations will commit an offence against a specific person , whether or not that person ’s ... identity is divulged provided that it is done in such a manner that he or she may be identified , or to reveal the identity of civil servants who have participated in anti - terrorist operations or to designate any person as a target . ”

“ Written and spoken propaganda , meetings , assemblies and demonstrations aimed at undermining the territorial integrity of GPE or the indivisible unity of the nation are prohibited , irrespective of the methods used and the intention . Any person who engages in such an activity shall be sentenced to not CARDINAL and not more than five years’ imprisonment and a fine of from CARDINAL to MONEY . ”

“ Written and spoken propaganda , meetings , assemblies and demonstrations aimed at undermining the territorial integrity of GPE or the indivisible unity of the nation are prohibited . Any person who engages in such an activity shall be sentenced to not CARDINAL and not more than three years’ imprisonment and a fine of from CARDINAL MONEY . The penalty imposed on a reoffender may not be commuted to a fine . ”

Among the amendments it makes to LAW CARDINAL of PERSON no . ORG with regard to minimum and maximum sentences ( see paragraph CARDINAL above ) , the PERSON of DATE contains a “ temporary provision relating to section CARDINAL ” worded as follows :

“ In DATE following the entry into force of the present PERSON , the court which has given judgment shall re - examine the case of a person convicted pursuant to LAW CARDINAL of the Prevention of Terrorism Act ( Law no . CARDINAL ) and , in accordance with the amendment ... to section CARDINAL of PERSON no . ORG , shall reconsider the term of imprisonment imposed on that person and decide whether he should be allowed the benefit of sections CARDINAL and CARDINAL of Law no . CARDINAL of DATE .

NORP The relevant parts of LAW ( Law no . CARDINAL ) read as follows :

“ The term ‘ fine’ shall mean payment to the ORG of a sum fixed within the statutory limits .

If , after service of the order to pay , the convicted person does not pay the fine within the time - limit , he shall be committed to prison for a term of DATE for every MONEY owed , by a decision of the public prosecutor .

The sentence of imprisonment thus substituted for the fine may not exceed DATE … ”

The relevant provisions of LAW concerning the admissible grounds for appeals on points of law against judgments at first instance are worded as follows :

“ An appeal on points of law may not concern any issue other than the lawfulness of the impugned judgment .

Non - application or erroneous application of a legal rule shall constitute unlawfulness . ”

“ Unlawfulness is deemed to be manifest in the following cases :

CARDINAL- where the court is not established in accordance with the law ;

CARDINAL- where CARDINAL of the judges who have taken the decision was barred by statute from participating ;

The Government supplied copies of CARDINAL decisions given by the prosecutor attached to ORG withdrawing charges against persons suspected of inciting people to hatred or hostility , especially on religious grounds ( LAW ) and of CARDINAL others withdrawing charges against persons suspected of disseminating separatist propaganda against the indivisible unity of the ORG ( section CARDINAL of the Prevention of Terrorism Act ( Law no.CARDINAL ) ) . In CARDINAL of these cases where the offences had been committed by means of publications , the prosecutor based his decision on the fact that there was no evidence of some of the constituent elements of the offence .

Furthermore , the Government submitted a number of decisions of ORG as examples of cases in which defendants accused of the the above - mentioned offences had been found not guilty . These were the judgments of DATE ( no . CARDINAL ) and CARDINAL DATE ( no . MONEY ) ; DATE ( no . CARDINAL/CARDINAL ) , DATE ( no . CARDINAL ) , DATE ( no . PERSON ) , CARDINAL DATE ( no . CARDINAL/CARDINAL ) and DATE ( no . CARDINAL ) ; and CARDINAL DATE ( no . GPE ) , DATE ( no . CARDINAL ) , DATE ( no . DATE ) , DATE ( no . CARDINAL/ CARDINAL ) and DATE ( no . CARDINAL ) . In the judgments against the authors of works dealing with the NORP problem , ORG reached their decisions on account of the absence of “ propaganda ” , a constituent element of the offence .


Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in ORG . He was represented before the ORG by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

On DATE the applicant brought a civil action against company B. in ORG ( PERSON ) seeking reinstatement and salary arrears .

On DATE the case was transferred to ORG ( ORG Belom Manastiru ) which held hearings on DATE and CARDINAL DATE , CARDINAL May and DATE and DATE . The hearings scheduled for DATE and for DATE were adjourned since either the applicant or his lawyer , or both , failed to appear . The applicant also exceeded the time - limit for submitting his reply in respect of the defendant 's submission by DATE .

On DATE ORG declared the applicant 's action inadmissible for lack of locus standi on the part of the defendant .

On DATE the applicant lodged a constitutional complaint under section CARDINAL of LAW complaining about the length of the above proceedings .

Following an appeal by the applicant , on DATE ORG ( PERSON u ORG ) quashed the first - instance decision and remitted the case .

In the resumed proceedings , on DATE ORG dismissed the applicant 's action . The applicant 's subsequent appeal was dismissed by ORG on DATE .

Following an appeal on points of law ( revizija ) by the applicant , on DATE ORG ( PERSON ) quashed the lower courts ' judgments and remitted the case to the first - instance court .

On DATE ORG found a violation of the applicant 's constitutional right to a hearing within a reasonable time and attributed some of the delays in the proceedings to the applicant and some to the inefficiency of ORG . It awarded the applicant MONEY ( HRK ) in compensation and ordered ORG to give a decision in the applicant 's case as quickly as possible but in any case within DATE following the publication of its decision in ORG . ORG decision was published on DATE .

In the resumed proceedings , ORG held CARDINAL hearings and obtained an expert opinion . In a judgment of DATE it found for the applicant .

Following an appeal by the defendant , on DATE ORG upheld the first - instance judgment in part and in the remaining part quashed it and remitted to ORG .

The defendant appealed on points of law ( revizija ) to ORG . It appears that the case is still pending before ORG and ORG .

The relevant part of LAW on LAW ( Ustavni zakon o PERSON , ORG no . CARDINAL of CARDINAL DATE – “ LAW ” ) reads as follows :

Section CARDINAL

“ ( CARDINAL ) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the applicant 's rights and obligations or a criminal charge against him or her within a reasonable time ...

( CARDINAL ) If a constitutional complaint ... under paragraph CARDINAL of this section is upheld , the Constitutional Court shall set a time - limit within which the competent court must decide the case on the merits ...

( CARDINAL ) In a decision issued under paragraph CARDINAL of this section , the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the ORG budget within DATE from the date a request for payment is lodged . ”

The relevant part of LAW ( Zakon o sudovima , ORG nos . CARDINAL , CARDINAL and CARDINAL/CARDINAL ) , which entered into force on DATE , reads as follows :

III . PROTECTION OF THE RIGHT TO A HEARING WITHIN A REASONABLE TIME

“ ( CARDINAL ) A party to court proceedings who considers that the competent court failed to decide within a reasonable time on his or her rights or obligations or a criminal charge against him or her , may lodge a request for the protection of the right to a hearing within a reasonable time with the immediately higher court .

( CARDINAL ) If the request concerns proceedings pending before ORG of GPE , ORG or ORG , the request shall be decided by ORG .

( CARDINAL ) The proceedings for deciding the request referred to in sub - section CARDINAL of this section shall be urgent . The rules of non - contentious procedure shall apply mutatis mutandis in those proceedings and , in principle , no hearing shall be held .

( CARDINAL ) If the court referred to in section CARDINAL of this LAW finds the request well founded , it shall set a time - limit within which the court before which the proceedings are pending must decide on a right or obligation of , or a criminal charge against , the person who lodged the request , and shall award him or her appropriate compensation for the violation of his or her right to a hearing within a reasonable time .

( CARDINAL ) The compensation shall be paid out of the ORG budget within DATE on which the party 's request for payment is lodged .

( CARDINAL ) An appeal , to be lodged with ORG within DATE , lies against a decision on the request for the protection of the right to a hearing within a reasonable time . No appeal lies against a ORG decision , but a constitutional complaint may be lodged . ”


Preliminary objection dissmissed (non-exhaustion);Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

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

They are wife and son of ORG who died in DATE and was of NORP origin .

M.G. , ORG 's mother , who died on DATE , owned a house in the centre of GPE . She bequeathed the house to her son GPE , who was mentally ill , in order to provide for his maintenance . In her will , ORG acknowledged that ORG agreed not to claim the house . After the inheritance proceedings had been terminated , GPE became the owner of the house and ORG got a life - long right to reside in the house .

At an undetermined time , GPE was declared incapacitated due to his mental illness and was put under guardianship . In DATE he was sent to a psychiatric institution . On DATE ORG ( PERSON sodišče v Mariboru ) ordered that GPE should remain institutionalised .

On DATE GPE 's guardian asked GPE whether they would be interested in purchasing the house , because GPE had insufficient income to cover his expenses and to maintain the house .

On DATE ORG drafted a contract for the purchase of the house and taking on the responsibility of life - long care and maintenance of GPE The contract established that the payment for the house would also cover ORG 's claim against GPE originating from a loan , which was secured by a mortgage on the house .

On DATE GPE 's guardian signed the contract before ORG .

On DATE the GPE requested ORG to express his agreement with the contract by way of signing it . At an undetermined time , but apparently shortly after DATE , he complied with the request .

On DATE GPE died .

At an undetermined time , the applicants instituted non - contentious proceedings against GPE in ORG , ORG ( Temeljno sodišče v Mariboru , ORG ) seeking restitution of the house . They claimed that the house was nationalised because the contract on its purchase had been closed under duress .

On DATE ORG ( ORG sodišče v Mariboru ) gained jurisdiction in the present case due to the reform of the NORP judicial system .

On DATE the applicants lodged preliminary written submissions .

On DATE the court held a hearing and heard witnesses .

On DATE the court dismissed the applicant 's request because the applicants failed to prove that the impugned contract had been made under duress .

On DATE the applicants appealed to ORG ( PERSON ) .

On DATE the applicants lodged an appeal on points of law with ORG sodišče ) .

On DATE the court dismissed the appeal as unfounded . The decision was served on the applicant on CARDINAL DATE .

On DATE the first applicant appealed to ORG ( PERSON sodišče ) .

On DATE the court declared the application inadmissible as out of time .

On DATE there was a gas explosion in the cellar of the building where the first applicant resided , namely the house claimed by the applicants in the first set of proceedings . At the time of the explosion , the first applicant was in the cellar and sustained injuries . The liability for the explosion laid with the company MP who was responsible for maintenance of the gas pipeline in the building .

On DATE the first applicant instituted proceedings against the company MP and the insurance company GPE in ORG , ORG seeking damages in the amount of CARDINAL tolars ( MONEY ) for the injuries sustained .

On DATE the court held a hearing and decided to appoint ORG to deliver an expert opinion regarding the applicant 's injuries . The opinion was delivered in DATE .

On DATE the court held another hearing and requested the appointed expert institution to amend its opinion .

On DATE ORG ( Okrožno sodišče v Mariboru ) gained jurisdiction in the present case due to the reform of the NORP judicial system .

On DATE the court terminated the proceedings against the insurance company following the applicant 's withdrawal of the claim against this party .

On DATE the applicant submitted preliminary written observations and raised her claim .

During the proceedings , the court appointed CARDINAL more medical experts .

At the hearing held on DATE the court requested CARDINAL of the appointed experts to deliver an additional opinion .

On DATE and CARDINAL DATE the court held hearings . At the last hearing the court issued a judgment upholding the applicant 's claim in part .

On DATE the MP appealed to ORG . On DATE the applicant cross - appealed .

At an undetermined time in DATE , ORG set aside the first - instance court 's judgment and remitted the case for re - examination .

On DATE the first - instance court held a hearing and issued a judgment upholding the applicant 's claim in part . The court awarded the applicant more damages than in its previous judgment .

On DATE both parties appealed to ORG .

On DATE the court allowed the appeals in part and increased the amount of damages awarded .

On DATE MP lodged an appeal on points of law with ORG .

On DATE the court dismissed the appeal on points of law .

In the meanwhile , on DATE the applicant instituted enforcement proceedings in ORG against MP for payment of the damages awarded in ORG .

On DATE the court allowed the enforcement and the amounts due were paid to the applicant on DATE .


The applicant company , ORG ( the NORP broadcasting corporation , the “ ORG ” ) , is a public law institution ( Körperschaft des öffentlichen Rechts ) with its seat in GPE . It is represented before the ORG by PERSON , a lawyer practising in GPE .

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

On DATE the applicant company broadcast a report about a press conference of the Federal Minister of Justice ( Justizminister ) in which he presented a reform of the preliminary investigation procedure underlining its necessity by the following statement :

“ See for example the letter - bomb campaign proceedings DATE . Repeatedly investigation errors occur . Judiciary and police authorities mutually accuse each other . Finally , it turns out that the letter - bomb campaign case has been a neo - nazi case . ”

In this context the Minister mentioned as an example of investigation errors , inter alia , the name of B. , who had been acquitted of the charge of participating in the letter - bomb assassinations but convicted of offences under LAW ( GPE ) . The criminal proceedings against PERSON and the following criminal proceedings concerning the letter - bomb campaign against another accused , who had been arrested in DATE and convicted in DATE , received extensive media coverage .

When transmitting the above quotation of the Minister , the applicant company showed a picture of PERSON before his trial in DATE , without mentioning his name , his acquittal of the charge concerning the letter - bomb assassinations , the service of his sentence of offences under LAW or his release on parole DATE before the report at issue was broadcast .

On DATE B. brought proceedings under LAW ) against the applicant company , requesting that the applicant be prohibited from publishing his picture without his consent , in particular such pictures that showed him as an accused in the courtroom , firstly , if the accompanying text established a connection with the letter - bomb campaign without reference to his final acquittal or , secondly , if it was maintained in the accompanying text , or the impression was created that he was a neo - nazi , was convicted of offences under LAW without mentioning that the imposed sentence had already been served , or that he had been released on parole meanwhile .

On DATE ORG ( ORG ) dismissed PERSON 's claims .

The court observed that LAW prohibited the publication of a person 's picture if it violated that person 's legitimate interests . As regards the first claim , the court found that PERSON 's legitimate interests had not been violated as it was a matter of common knowledge that he had been acquitted of the charge of participating in the letter - bomb campaign . Since he was therefore no longer associated with these proceedings by the public , the report could not have given the impression that he had been convicted of this charge . In respect of the second claim , the court found that the report could not have violated PERSON 's interests as he was finally convicted of offences under LAW . Further the court observed that the applicant company 's interest in publishing the picture had to be balanced against B. 's interest in the protection of his image , under LAW of LAW ( Mediengesetz ) . Pursuant to this provision the legitimate interests of the person concerned had to be regarded as harmed if the publication substantially prejudiced that person 's social and professional advancement . The court found that PERSON 's interests were not infringed by the neutral and noncondemnatory publication of his picture as the real subject - matter of the report was the planned reform of the preliminary investigation procedure .

On DATE ORG ( Oberlandesgericht ) dismissed PERSON 's appeal .

It confirmed ORG finding that the report could not have given the impression that the applicant had been convicted of participating in the letter - bomb assassinations . Further it found , contrary to PERSON 's submissions , that Section CARDINAL of LAW was applicable since PERSON had been convicted of a crime and not of a lesser offence and did not therefore enjoy unlimited protection of his identity . In particular , the court found that the publication of PERSON 's picture met a need for information and it had not prejudiced his advancement as he had already found employment and as the picture of the trial had only been shown in order to demonstrate that PERSON had been a victim of investigation errors . Moreover , he had not been mentioned by name .

On DATE ORG , allowing PERSON 's further appeal , set aside the decisions of the first and second instance court and granted his claims .

It found that the publication of B. 's picture , taken before the trial concerning the charges against him at that time , had obviously interfered with his interests as it had reminded the public of B. 's court appearance DATE after his trial and after his release on parole . Further , the court found that there had been no need for such information and that the publication of the picture did not add any information to the applicant company 's report about the Minister 's press conference . The court concluded that it was not called upon to balance the conflicting interests concerning PERSON 's social and professional advancement , within the meaning of Section CARDINALa of LAW , as there was no public interest in having PERSON 's picture published . The court found that the publication had precisely the effects prohibited by LAW .

Thus , the court ordered the applicant company to refrain from publishing or disseminating B. 's picture without his consent , in particular such pictures that showed him as an accused in the courtroom , firstly , if the accompanying text established a connection with the letter - bomb campaign of DATE without reference to his final acquittal or , secondly , if it was maintained in the accompanying text , or the impression was created that he was a neo - nazi or that he was convicted of offences under LAW without mentioning that the imposed sentence had already been served , or that he had been released on parole meanwhile .

a. In DATE the ORG was established as a non - profit orientated limited liability company , whose owners were ORG ) and the ORG . The respective act ( ORG no . CARDINAL ) defined broadcasting services as public responsibility . The supervisory board ( NORP ) consisted of CARDINAL members ( CARDINAL of whom were appointed by the Länder , CARDINAL by ORG and CARDINAL by the shareholder 's assembly ( GPE ) , and it appointed the managing director ( Generalintendant ) .

b. On DATE the legislator adopted LAW concerning the safeguarding of the independence of broadcasting ( ORG , ORG no . ORG ) . LAW , as far as material , reads as follows :

Broadcasting shall be governed by more detailed rules to be set out in a federal law . Such a law must inter alia contain provisions guaranteeing the objectivity and impartiality of reporting , the diversity of opinions , balanced programming and the independence of persons and bodies responsible for carrying out the duties defined in paragraph CARDINAL .

Broadcasting within the meaning of paragraph CARDINAL shall be a public service . “

c. LAW of DATE ( Rundfunkgesetz DATE , ORG no . TIME ) transformed the ORG into a public - law corporation , a non - profit orientated legal entity . The act established the ORG 's duty to provide comprehensive news coverage of major political , economic , cultural and sporting events ; to this end , it has to broadcast , in compliance with the requirements of objectivity and diversity of views , in particular current affairs , news reports , commentaries and critical opinions ( LAW CARDINAL ) CARDINAL ) and to do so via CARDINAL television channels and CARDINAL radio stations , CARDINAL of which must be a regional station ( Section CARDINAL ) . Broadcasting time must be allocated to the political parties represented in the national parliament ( Section CARDINAL ( CARDINAL ) ) .

A supervisory board ( ORG ) rules on all disputes concerning the application of the above - mentioned LAW which fall outside the jurisdiction of an administrative authority or court ( Sections CARDINAL and DATE ) . It is composed of CARDINAL independent members , including CARDINAL judges , appointed for terms of DATE by the President of the Republic on the proposal of ORG .

The bodies of the ORG are the board of trustees ( ORG ) , the managing director , the representatives of the listeners and viewers ( Hörer- und LOC ) and ORG ) . The ORG is entitled to collect broadcasting fees .

d. In DATE the ORG was transformed into a public law foundation , a legal entity without an owner ( ORG , ORG no . ORG . The foundation has to fulfil a public - law mandate which comprises operating a certain number of programs and providing the necessary technical facilities that these programs be received in defined areas ( PERSON ) . The ORG 's bodies are ORG ( NORP ) , the Director General ( ORG ) , ORG ( NORP ) and ORG . ORG is in charge of monitoring the management and of electing the Director General . It consists of CARDINAL members ( of which CARDINAL are appointed by ORG upon proposals of the political parties represented in ORG ( PERSON ) , CARDINAL by ORG , CARDINAL by ORG , CARDINAL by ORG ( PERSON ) and CARDINAL members representing the ORG ) .

Section CARDINAL of LAW reads as follows :

“ ( CARDINAL ) Images of persons shall neither be exhibited publicly , nor disseminated in any other way in which they are made accessible to the public , where the legitimate interests of the person in question or , in the event that they have died without having authorised or ordered publication , of a close relative would be injured . ( ... )

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

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

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

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

( CARDINAL ) The legitimate interests of the victim shall in any event be harmed if the publication

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

NORP in the case of subsection ( CARDINAL , relates to a juvenile or merely to a lesser indictable offence or may substantially prejudice the victim 's advancement .


Violation of Art. 10;Pecuniary damage - claim dismissed;Non pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria

The applicant was born in DATE . At the time the application was lodged he lived in ORG ) .

At the time of the events , the applicant was spokesperson for PERSON , a left - wing NORP separatist parliamentary group in ORG .

On DATE , following an order issued by central investigating judge no . CARDINAL of FAC , the LOC of the DATE newspaper ORG were searched and then closed , on account of the newspaper ’s alleged links with the terrorist organisation ORG . CARDINAL persons were arrested , including the newspaper ’s senior managers ( members of the board and the editor - in - chief ) . After spending DATE in secret detention the persons concerned complained that they had been subjected to ill - treatment in police custody .

On DATE the President of ORG received PERSON at the opening of an electricity power station in the province of GPE .

At a press conference held DATE in GPE , the applicant , as spokesperson for the PERSON parliamentary group , outlined his group ’s political response to the situation concerning the newspaper ORG . Replying to a journalist he said , with reference to the King ’s visit to ORG , that “ it [ was ] pathetic ” , adding that it was “ a genuine political disgrace ” for the President of ORG to be inaugurating the project with PERSON of Bourbon and that “ their picture [ was ] worth CARDINAL words ” . He went on to say that inaugurating a project with PERSON , who was ORG ( ORG ) and the Commander - in - Chief of the NORP armed forces , was absolutely pitiful . Speaking about the police operation against the newspaper ORG , he added that the King was in charge of those who had tortured the persons detained in connection with the operation . He spoke in the following terms :

“ How is it possible for them to have their picture taken DATE in GPE with GPE , when PERSON is the Commander - in - Chief of the NORP army , in other words the person who is in charge of the torturers , who defends torture and imposes his monarchical regime on our people through torture and violence ? ”

On DATE the public prosecutor lodged a criminal complaint against the applicant for “ serious insult against the King ” within the meaning of LAW of LAW read in conjunction with LAW , on account of his remarks made on DATE .

NORP In the proceedings before ORG , which had jurisdiction to try the applicant because of his status as a member of parliament , the applicant argued that his remarks had constituted political criticism directed against the Head of the government of ORG . He added that to say that GPE was ORG did not imply any intention to undermine dignity or honour ; it was merely a statement of the political reality in the NORP State , where the King exercised supreme command over the armed forces . The applicant further argued that there was no insult or attempt to dishonour in saying that ORG had tortured the persons detained in connection with the closure of the newspaper ORG because that was the reality , and proceedings had been instituted in that connection before the GPE investigating judge no . CARDINAL . Numerous public figures had also commented on the subject . In sum , the applicant , as a politician , had sought to express political criticism in the context of freedom of expression , one of the foundations of the rule of law and democracy . He pointed out in that regard that politicians had greater freedom of manoeuvre when it came to informing society about matters of public interest .

In a judgment of DATE , ORG found the applicant not guilty of the charges against him . After stating that his remarks had been “ clearly offensive , improper , unjust , ignominious and divorced from reality ” , the court found as follows :

“ ... This is not an issue concerning the private life of the Head of ORG but CARDINAL of rejection of the ties of political power deriving from the hereditary nature of the institution which he personally symbolises . ... [ C]riticism of a constitutional institution is not excluded from the scope of the right to freedom of expression ; in this case the latter has the status of a constitutional right which takes precedence over the right to honour . The LAW does not guarantee the right to freedom of expression solely in relation to certain points of view that are considered correct , but in relation to all ideas , subject to the limits which it lays down ... ”

The High Court of ORG summed up as follows :

“ [ T]he [ applicant ’s ] remarks were made in a public , political and institutional setting , regard being had not only to the speaker ’s status as a member of parliament but also to the authority to which they were addressed , namely the ORG ’s highest judicial authority , and to the context of political criticism of the [ Head of the government of ORG ] for his official hospitality in receiving His PERSON I in the wake of the closure of the newspaper [ Euskaldunon ] NORP and the detention of its senior managers , and the latter ’s public allegations of illtreatment . This context is therefore unconnected to the innermost core of individual dignity protected by law from any interference by third parties . ”

NORP The public prosecutor lodged an appeal on points of law , arguing firstly that the law protected the honour of the King as a specific individual possessed of personal dignity , who had been the object of the offence of insult , and secondly that the law was aimed at ensuring respect for the symbolic content of the institution of the ORG as established by LAW and “ represented by ORG , the symbol of its unity and permanence ” . The seriousness of the offence could be inferred from the fact that the legislature had sought to afford increased protection to the dignity of the King , including vis - à - vis other public authorities ( Articles CARDINAL and CARDINAL of LAW ) . Furthermore , the inviolability of the King , as proclaimed in LAW , demonstrated the unique position occupied by the ORG in the system of DATE LAW . That constitutional position highlighted the disproportionate nature of the vexatious and insulting remarks made by the applicant . In the view of the public prosecutor , who referred several times to the case - law of ORG , it was clear that the King had been performing official duties and that he was a figure in the public eye ; however , that did not deprive him of the right to respect for his honour . In that regard , the public prosecutor pointed out that LAW ( a ) of the LAW did not protect a supposed right to proffer insults . Drawing a parallel with the special protection to be afforded under LAW to the judiciary , the public prosecutor further argued that the same protection should be afforded to the Head of ORG , who was the “ symbol of the unity and permanence of the ORG ” and was above party politics , from the “ destructive and baseless attack ” constituted by the applicant ’s remarks . Lastly , in the public prosecutor ’s view , the applicant ’s remarks could be said to amount to “ hate speech ” within the meaning of the ORG ’s caselaw , given the existing situation with regard to terrorist attacks .

NORP In CARDINAL judgments delivered on DATE , ORG set aside the judgment of the lower court , making several references to the ORG ’s case - law . It sentenced the applicant to DATE imprisonment , suspended his right to stand for election for the duration of the sentence and ordered him to pay costs and expenses , on the ground of his criminal liability for the offence of serious insult against the King . ORG considered the impugned remarks to have been value judgments rather than statements of fact . The remarks , described as “ ignominious ” by the lower court , had expressed contempt for the King and the institution he represented , affecting the innermost core of his dignity by accusing him of one of the most serious manifestations of criminal conduct in a ORG governed by the rule of law . The exercise of the right to freedom of expression had therefore been contrary to the principle of proportionality and had been unnecessary , overstepping the limits beyond which criticism could be deemed to be hurtful or upsetting . ORG further observed that the context in which the remarks had been made did nothing to alter their offensiveness . Firstly , the proceedings relating to the complaints of ill - treatment of the persons detained in connection with the operation against the newspaper ORG had been discontinued for lack of evidence . Secondly , the impugned remarks could not be construed as a reaction or response to a political debate with the King . In view of the seriousness of the insulting comments and the fact that the applicant had deliberately expressed them in public , ORG sentenced him to DATE imprisonment .

Judge PERSON issued a dissenting opinion in which he argued that the comments complained of had been of a political nature , in view of the applicant ’s status as a member of parliament and the context in which they had been made , namely the King ’s visit to ORG and the attitude of the Head of the government of ORG in that regard . The judge agreed with ORG that the remarks had not targeted the ORG ’s private life or his personal honour but had been directed solely at his institutional role as Commander - in - Chief of the NORP armed forces . The applicant had not claimed that the King was responsible for actual acts of torture , only that he was strictly liable as Head of the ORG apparatus . The judge pointed out that the limits of freedom of expression were wider with regard to institutions since the latter did not possess honour , an attribute that was confined to individuals .

The applicant lodged an amparo appeal with ORG alleging , inter alia , a breach of his right to freedom of expression ( LAW ( a ) of LAW ) and of his right to freedom of ideas ( LAW ) .

In the applicant ’s view , ORG judgment had incorrectly weighed the competing interests at stake , as the comments complained of had not contained any insulting or vexatious expressions , had been directed principally against the President of ORG rather than PERSON and , in any event , had reflected the reality of the situation and had not referred to the ORG private life or his attitudes . The statements in question had not been disproportionate in the context in which they had been uttered , namely the warm welcome extended to GPE by the government of ORG in the wake of the closure of the DATE newspaper ORG and , in connection with that closure , the detention of several individuals who had stated before the courts and ORG that they had been tortured .

In a decision ( auto ) of DATE , served on DATE , ORG declared the applicant ’s amparo appeal inadmissible as manifestly devoid of constitutional content . ORG noted at the outset that the right to freedom of expression did not encompass a right to proffer insults . It pointed out in that connection that the LAW did not prohibit the use of hurtful expressions in all circumstances . However , freedom of expression did not protect vexatious expressions which , regardless of their veracity , were offensive and ignominious and were not pertinent for the purpose of conveying the opinions or information in question .

The Constitutional Court considered that the weighing of the competing rights at stake had been carried out in an appropriate manner by ORG , as the latter had concluded that the impugned remarks had been disproportionate , while taking into account the context in which they had been made , the public nature of the act , the public interest in the subject in question ( the use of torture ) and the fact that the persons targeted ( a politician and PERSON ) were public figures . In ORG view , there was no denying the ignominious , vexatious and derogatory nature of the impugned remarks , even when directed against a public figure . That finding was all the more valid with regard to the King , who , by virtue of LAW , was “ not liable ” and was a “ symbol of the unity and permanence of the ORG ” . Regard being had to his role as “ arbitrator and moderator of the lawful functioning of institutions ” , the King occupied a neutral position in political debate . This implied that he was owed institutional respect of a kind that was “ substantively ” different from that due to other ORG institutions . ORG stated as follows :

“ ... [ I]n a democratic system which recognises freedom of ideas and freedom of expression , the fact that [ the figure of the King ] is characterised in this way does not shield him from all criticism ‘ in the exercise of his duties or on account of or in connection with them’ ... ; however , such criticism may not extend to attributing acts of public authority to the King DATE which , as indicated above , is prohibited by LAW as a pretext for gratuitous attacks on his dignity or public esteem . ”

Lastly , ORG held that the applicant ’s remarks , on account of their obviously derogatory nature , had clearly gone beyond what could be considered legitimate . It agreed with ORG that the remarks had expressed open contempt for the King and the institution he embodied , affecting the essential core of his dignity . Hence , such statements could manifestly not fall within the exercise of the right to freedom of expression .

In a decision ( auto ) of CARDINAL DATE , ORG of Justice ordered that enforcement of the applicant ’s sentence be stayed for DATE . According to the Government , his sentence was remitted on DATE .

NORP The applicant was imprisoned on DATE after ORG upheld a judgment of the Audiencia Nacional of DATE sentencing him to CARDINAL months’ imprisonment for publicly defending terrorism .

He is currently in pre - trial detention in connection with other criminal proceedings .

The relevant provisions of the Spanish Constitution read as follows :

“ NORP shall be equal before the law ; they may not be discriminated against in any way on account of birth , race , sex , religion , opinion or any other condition or personal or social circumstance . ”

“ CARDINAL . Freedom of ideas , religion and worship shall be guaranteed to individuals and communities without any restrictions on its expression other than those necessary for the maintenance of public order as protected by law .

“ CARDINAL . The following rights shall be recognised and protected :

( a ) the right freely to express and disseminate thoughts , ideas and opinions orally , in writing or by any other means of reproduction ;

The exercise of these rights may not be restricted by any prior censorship .

These freedoms shall be limited by respect for the rights secured in this Part , by the provisions of the implementing Acts and in particular by the right to honour and to a private life and the right to control use of one ’s likeness and to the protection of youth and children .

“ CARDINAL . The King shall be the Head of ORG , the symbol of its unity and permanence . He shall be the arbitrator and moderator of the lawful functioning of institutions . He shall be the supreme representative of the NORP State in its international relations , in particular with those nations belonging to its historic community , and shall exercise the functions expressly attributed to him by the LAW and the law .

The King shall be inviolable and shall not be liable . ... ”

“ It shall be incumbent on the King to :

( h ) exercise supreme command over the armed forces ;

( i ) exercise the right of clemency in accordance with the law , but without the power to grant general pardons

The relevant provisions of LAW ( as amended by LAW no . CARDINAL of DATE ) read as follows :

“ Acts or expressions which undermine another ’s dignity by attacking his or her reputation or self - esteem shall constitute insult .

Only insults which , by virtue of their nature , effects and context , are generally acknowledged to be serious shall constitute an offence ... ”

“ The offence of serious public insult shall be punishable by DATE - fine payable for DATE . Where the insult is not proffered publicly , the fine shall be payable for DATE . ”

With regard to the offence of insult against the King , LAW provides for the penalties indicated below :

Anyone who falsely accuses or insults the ORG or any of his ascendants or descendants , the Queen consort or the consort of the Queen , the Regent or any member of the GPE , or the Crown Prince , in the exercise of his or her duties or on account of or in connection with them , shall be liable to a term of imprisonment of DATE if the false accusation or insult is of a serious nature , and otherwise to a DATE - fine payable for DATE . ”

This provision is contained in Title XXI of Book II of LAW ( “ Offences against LAW ” ) , LAW ( “ Offences against the Crown ” ) .

Articles CARDINAL and CARDINAL of the Criminal Code deal with the offence of serious insult against ORG , the government or other ORG institutions . These provisions feature in Title XXI of Book II of LAW ( “ Offences against LAW ” ) , LAW ( “ Offences against ORG institutions and the separation of powers ” ) .

“ Anyone who seriously insults ORG [ ORG and ORG ] or the legislative assembly of ORG ... shall be liable to a DATE - fine payable for DATE ... ”

“ Anyone who seriously threatens , falsely accuses or insults the nation ’s government , ORG , ORG , ORG , or ORG of an ORG shall be liable to a day - fine payable for DATE ... ”

Reference should first be made to the LAW on freedom of political debate in the media adopted by ORG DATE , which provides :

“ ORG ,

Conscious that some domestic legal systems still grant legal privileges to political figures or public officials against the dissemination of information and opinions about them in the media , which is not compatible with the right to freedom of expression and information as guaranteed by LAW ;

II . Freedom to criticise the ORG or public institutions

The ORG , the government or any other institution of the executive , legislative or judicial branch may be subject to criticism in the media . Because of their dominant position , these institutions as such should not be protected by criminal law against defamatory or insulting statements . Where , however , these institutions enjoy such a protection , this protection should be applied in a restrictive manner , avoiding in any circumstances its use to restrict freedom to criticise . Individuals representing these institutions remain furthermore protected as individuals .

VI . Reputation of political figures and public officials

Political figures should not enjoy greater protection of their reputation and other rights than other individuals , and thus more severe sanctions should not be pronounced under domestic law against the media where the latter criticise political figures . ...

ORG . Remedies against violations by the media

Political figures and public officials should only have access to those legal remedies against the media which private individuals have in case of violations of their rights by the media . ... Defamation or insult by the media should not lead to imprisonment , unless the seriousness of the violation of the rights or reputation of others makes it a strictly necessary and proportionate penalty , especially where other fundamental rights have been seriously violated through defamatory or insulting statements in the media , such as hate speech . ”

Parliamentary Assembly Resolution CARDINAL ( DATE ) , entitled “ Towards decriminalisation of defamation ” , is worded as follows :

[ The ORG ] notes with great concern that in many member GPE the law provides for prison sentences for defamation and that some still impose them in DATE for example , GPE and GPE .

The ORG consequently takes the view that prison sentences for defamation should be abolished without further delay . In particular it exhorts GPE whose laws still provide for prison sentences DATE although prison sentences are not actually imposed DATE to abolish them without delay so as not to give any excuse , however unjustified , to those countries which continue to impose them , thus provoking a corrosion of fundamental freedoms .

The ORG accordingly calls on the member States to :

abolish prison sentences for defamation without delay ;

NORP guarantee that there is no misuse of criminal prosecutions ... ;

define the concept of defamation more precisely in their legislation so as to avoid an arbitrary application of the law and to ensure that civil law provides effective protection of the dignity of persons affected by defamation ;

remove from their defamation legislation any increased protection for public figures , in accordance with the ORG ’s case - law ... ”


Anatoly Kovler;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE , GPE . Currently he is serving a prison term in GPE . He was represented before the ORG by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

NORP On DATE an investigation was opened in respect of the applicant before ORG ( Županijski sud u GPE ) in connection with a suspicion that he had committed CARDINAL murders and CARDINAL attempted murder .

The investigating judge ordered the applicant ’s pre - trial detention on CARDINAL DATE on the ground that he might abscond , collude or reoffend . However , during the investigation the applicant remained at large and his whereabouts were unknown to the prosecuting authorities .

On DATE the GPE State Attorney ’s ORG ( GPE državno odvjetništvo u PERSON ) indicted the applicant in ORG on charges of triple murder and CARDINAL attempted murder .

On DATE ORG ordered that the trial be held in the applicant ’s absence , since his whereabouts had remained unknown . On DATE the court found the applicant guilty as charged and sentenced him to CARDINAL years’ imprisonment . On DATE the court issued a new order on his detention .

On DATE the applicant was extradited from GPE to GPE , where he was immediately detained , pursuant to ORG order .

On DATE ORG ( PERSON ) ordered the applicant ’s retrial , during which he was remanded in custody .

On DATE ORG found that LAW ( Zakon o općem oprostu ) was applicable to the applicant ’s case , terminated the proceedings against him and ordered his release .

On DATE the applicant was released from detention .

On DATE ORG ( Ustavni sud PERSON ) , acting on a constitutional complaint lodged by CARDINAL of the ORG relatives , quashed ORG decision of CARDINAL DATE and ordered a new trial .

On DATE a CARDINAL - judge panel of ORG again ordered the applicant ’s detention . However , the applicant remained at large because his whereabouts were unknown .

On DATE the applicant was again extradited from GPE to GPE , where he was immediately detained pursuant to ORG order .

On DATE a new trial commenced in ORG in which the applicant was accused of triple murder and CARDINAL attempted murder . During the trial the applicant was remanded in custody .

On DATE ORG found the applicant guilty as charged and sentenced him to MONEY imprisonment . On DATE the trial court ordered his detention pending completion of the firstinstance judgment .

On DATE the applicant lodged an appeal against the firstinstance judgment of ORG but on DATE ORG dismissed the appeal .

On DATE a CARDINAL - judge panel of ORG extended the applicant ’s detention for DATE under LAW . The relevant part of the decision reads :

“ The accused , PERSON , was detained ... DATE and DATE and has been detained again ... since DATE .

... given that a non - final judgment had been adopted in this case , this panel has established that , under LAW , the overall duration of detention , which until the adoption of the first - instance judgment could have lasted DATE ( LAW ) , may be extended for DATE [ of the maximum prescribed statutory limit ] until the judgment becomes final . Thus the overall detention may last for DATE and DATE . The overall duration of detention could be extended on condition that the DATE limit had not expired . In the present case , on DATE the DATE limit had not yet expired , so the accused ’s detention was lawfully extended . ”

On DATE the applicant lodged an appeal with ORG , arguing that the maximum period of his detention had in fact expired on DATE . This meant that the impugned decision by ORG had been adopted with CARDINAL days’ delay and that therefore the extension of his detention had been unlawful .

On DATE ORG dismissed the applicant ’s appeal against ORG decision to extend the applicant ’s detention for DATE .

On DATE the applicant lodged a further appeal with ORG against the second - instance judgment .

On DATE the applicant lodged a constitutional complaint against ORG decision of DATE to uphold ORG decision extending his detention , reiterating that his continued detention had been unlawful .

On DATE ORG , acting as the final court of appeal , dismissed the applicant ’s appeal against the second - instance judgment , and the applicant ’s conviction thus became final .

On DATE ORG declared the applicant ’s constitutional complaint inadmissible on the ground that in the meantime , on DATE , the applicant had been sent to prison .

On DATE the applicant lodged a further constitutional complaint against ORG judgment of DATE , challenging his conviction .

NORP The proceedings before ORG appear to be still pending .

Section CARDINAL(CARDINAL ) of LAW on LAW ( Ustavni zakon o PERSON , ORG no . CARDINAL/CARDINAL ) reads :

“ CARDINAL . Anyone may lodge a constitutional complaint with ORG if he or she deems that a decision ( pojedinačni akt ) of a ORG body , a body of local and regional self - government , or a legal person with public authority , concerning his or her rights and obligations or a suspicion or accusation of a criminal act , has violated his or her human rights or fundamental freedoms , or his or her right to local and regional self - government guaranteed by LAW ( hereinafter : ‘ constitutional right’ ) ... ”

The relevant provisions of LAW of GPE ( NORP zakon PERSON , ORG nos . CARDINAL , CARDINAL/CARDINAL , ORG , ORG ) are worded as follows :

“ ( CARDINAL ) Whoever deprives another person of his life shall be punished by imprisonment of DATE .

( CARDINAL ) NORP imprisonment of DATE or DATE :

CARDINAL ) NORP deprives another person of his life ... out of ruthless revenge ... ;

CARDINAL ) NORP deprives of his life an official in the course of performing his duties of prevention and discovery of offences , apprehension of perpetrators of the offences , securing public peace and order , or who deprives of his life an official who is guarding a person deprived of liberty or who deprives of life another person who is performing some of those duties in the function of civil protection . ”

The relevant provisions of LAW ( Zakon o kaznenom postupku , ORG nos . CARDINAL/CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL and CARDINAL ) are worded as follows :

“ ( CARDINAL ) Until the adoption of a first - instance judgment , pre - trial detention may last for a maximum of :

( CARDINAL ) DATE for offences carrying a statutory maximum sentence of CARDINAL PERSON imprisonment ;

( CARDINAL ) DATE for offences carrying a statutory maximum sentence of DATE imprisonment ;

( CARDINAL ) DATE for offences carrying a statutory maximum sentence of CARDINAL years’ imprisonment ;

( CARDINAL ) DATE for offences carrying a sentence of more than eight years’ imprisonment ;

( CARDINAL ) DATE for offences carrying a sentence of long - term imprisonment .

( CARDINAL ) NORP In cases where a judgment has been adopted but has not yet entered into force , the maximum term of pre - trial detention may be extended for CARDINAL of the term referred to in CARDINAL of paragraph CARDINAL of this provision until the judgment becomes final , and for CARDINAL of the term referred to in DATE and CARDINAL of paragraph CARDINAL of this provision .

( CARDINAL ) Where a first - instance judgment has been quashed on appeal , following an application by the ORG Attorney and where important reasons exist , ORG may extend the term of detention referred to in DATE of paragraph CARDINAL of this provision for DATE and the term referred to in DATE and CARDINAL of paragraph CARDINAL of this provision for DATE .

( CARDINAL ) Following the adoption of an appellate judgment against which an appeal is allowed , detention may last until the judgment becomes final , for a maximum period of DATE .

( CARDINAL ) A defendant placed in detention and sentenced to a prison term by a final judgment shall stay in detention until he is committed to prison , but for no longer than the duration of his prison term . ”


Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in LOC .

He is the owner of an apartment in PERSON , which he had let to GPE in DATE . The lease was due to expire on DATE , but was extended until DATE pursuant to LAW . CARDINAL .

In a writ served on the tenant on DATE , the applicant communicated his intention to terminate the lease and summoned the tenant to appear before the Mercato Sanseverino Magistrate .

By a decision of CARDINAL DATE , which was made enforceable on DATE , ORG upheld the validity of the notice to quit and ordered that the premises be vacated by DATE .

On DATE , the applicant served notice on the tenant requiring him to vacate the premises .

On DATE , he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on DATE .

On DATE , the bailiff made an attempt to recover possession , which proved unsuccessful , as the applicant was not granted the assistance of the police in enforcing the order for possession .

On DATE , the applicant made a statutory declaration that he urgently required the premises as accommodation for his daughter .

On DATE , the bailiff asked the local police to provide their assistance in enforcing the order for possession and at the same time suspended the enforcement proceedings until the assistance would be granted .

At DATE , the tenant spontaneously vacated the LOC .

The relevant domestic law is described in the ORG 's judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , § § DATE , ORG CARDINAL-V.


The applicant is a NORP citizen , a farmer residing in GPE .

A.

By an administrative decision of DATE the applicant was obliged to re - establish the previous state of the waterflow through his property , as he had executed works which altered it .

On DATE the ORG Governor upheld this decision . The applicant filed an appeal with ORG .

In its judgment of CARDINAL DATE the court established that water relations on the applicant ’s lands and neighbouring farms had been severely disturbed in DATE , which caused frequent flooding of certain plots . Following requests from farmers , in DATE the local municipality had carried out certain drainage works . However , they had proved ineffective in that the facilities had repeatedly been repaired , to no avail . The court considered that the administrative authorities had failed to establish , in particular by calling an expert , what measures should be taken in order to improve the overall situation , including that on the applicant ’s property . Accordingly , the court quashed the contested decisions and ordered the case to be reconsidered , as the administrative bodies had failed to establish correctly the facts relevant for their decisions .

Reconsidering the case , on DATE ORG established inter alia that following the ineffective drainage works carried out in DATE , the applicant had blocked the gravitational flow of rain water through his land . As a result , a road nearby , used by many farmers , had been damaged . Subsequently , a ditch had been dug along this road in order to remedy problems caused by the works done by the applicant . The applicant had reacted by building a stone dam , which had blocked the flow of water along the edge of the road . In DATE the inhabitants of the village had agreed to reinstate the status quo ante . It was , in the opinion of the administrative body , the only possible solution , as another remedy , consisting of further costly drainage works , had not been accepted by the local community . The applicant was therefore ordered to re - establish the status quo ante in order to restore natural gravitational flow of rain and ground waters on his land by demolishing a dam he had constructed .

On DATE PERSON , the owner of a farm adjacent to the applicant ’s , was ordered to re - establish the status quo ante by liquidating a ditch by which water had been directed toward the applicant ’s land .

On DATE ORG quashed the decision of DATE and ordered that the case be reconsidered .

By a decision of ORG of DATE the applicant was again obliged to restore the previous state of waterflow on his property , by demolishing the dam and by digging a ditch along the local road going through his land . The applicant appealed to the ORG Governor , who on DATE upheld the contested decision .

On DATE ORG dismissed the applicant ’s further appeal and upheld the contested administrative decisions . The court established that the drainage works carried out by the local municipality in DATE had proved ineffective . Subsequently the applicant , trying to block rain and ground waters flowing onto his property from higher located neighbouring properties , had constructed a stone dam on the border between his plot and that belonging to his neighbour . This had rendered the natural gravitational flow of rain and ground water impossible and had severely disturbed existing waterflow in that the water had repeatedly been flooding the municipal road nearby , thus making difficult the access to the fields in the vicinity , belonging to CARDINAL farmers .

The court had regard to LAW providing that an owner of property could not alter the waterflow on his or her ground , existing for DATE , if such change could negatively affect neighbouring properties . The court observed that the drainage facilities made in DATE by the municipality were so defective that it was not economically viable to repair them . Moreover , the owners of the farms concerned , including the applicant , had refused to bear the cost of any further drainage facilities . The court also noted the decision of DATE by which the applicant ’s neighbour PERSON had likewise been compelled to take measures in order to re - establish the status quo ante on his plot . Consequently , it was only the demolition of the dam constructed by the applicant that could restore the status quo ante and also minimise damage caused by the fact that the drainage works had proved unsuccessful , and by further alterations made by the applicant .

On DATE the applicant was served with a reminder to carry out the works ordered by the decisions .

On DATE the applicant was served with a decision of DATE to proceed to the enforcement of the decisions by an authorised company . He filed a complaint against the enforcement decision , which was subsequently dismissed . The applicant lodged a further appeal against the decision taken in the enforcement proceedings with ORG . In DATE a drainage ditch was dug on the applicant ’s land , in enforcement of the relevant administrative decisions .

On DATE ORG dismissed the applicant ’s appeal against the enforcement decisions . The court recalled that its jurisdiction in administrative enforcement proceedings was limited to examining whether the enforcement decisions were in compliance with the provisions of LAW of DATE . The court had regard to its considerations expressed in its judgment of DATE , namely that in the absence of any wish of the owners of the lands concerned to bear costs of new drainage facilities , the solution contested by the applicant was the only feasible CARDINAL . This judgment and the decisions on the merits contested by the applicant remained valid . It was not in dispute that the applicant had failed to take the steps indicated in these decisions . In these circumstances , the applicant ’s objections against the enforcement decisions aimed in fact at having the case reconsidered on the merits . This could not be done in the enforcement proceedings . In so far as the applicant called into question the manner in which the company had carried out the works on his land in DATE in order to secure compliance with the final decision on the merits , it remained open to him to submit relevant pecuniary claims , if any , in separate proceedings .

B. Relevant domestic law

ORG review of administrative decisions

Article CARDINAL § CARDINAL of LAW , as applicable at the relevant time , provided that an appeal could be lodged with ORG against a second - instance administrative decision on the merits on the ground that the decision was not in conformity with the law .

LAW states that ORG could set the decision aside wholly or in part if it established that the decision was issued in breach of substantive law , that the proceedings leading to the decision were flawed with a deficiency which led to the decision being null and void , or if such procedural shortcomings had occurred in the proceedings leading to the decision which would justify their reopening .

Enforcement of administrative decisions

Pursuant to LAW of DATE the administrative enforcement proceedings are instituted at the request of the creditor who is obliged to submit a valid enforcement title to the enforcement authority . In cases in which the enforcement authority is at the same time the creditor , the proceedings are instituted ex officio on the basis of an enforcement title issued by this authority .

DATE of the LAW provides that the enforcement title should identify the creditor and the debtor , specify the contents of the obligations subject to enforcement and its substantive legal basis . Further , the legal basis for conducting administrative enforcement proceedings in respect of the obligation should be indicated . If the obligation is of a pecuniary character , the exact sums must be itemised . The title must also contain the date at which it was issued , together with the name and rank of the person who issued it . A copy of a reminder to ensure compliance with the administrative decision , served on the debtor , must be attached to the title .


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

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicant is a NORP national who was born in DATE and is serving a prison sentence in GPE .

On DATE the applicant was arrested on suspicion of assault and robbery . He remained in custody pending investigation and trial .

On DATE the Moskovskiy District Court of FAC found the applicant guilty as charged and sentenced him to DATE imprisonment .

On DATE ORG quashed the applicant 's conviction on appeal and discontinued the criminal proceedings against him . He was released on DATE .

It appears that DATE after his release the applicant was arrested on suspicion of CARDINAL counts of murder .

NORP In DATE the applicant , who was at that time serving a prison sentence , sued ORG and PERSON , the trial judge who had convicted him on DATE , for compensation for damage resulting from his unlawful detention and conviction . The applicant claimed an award for non - pecuniary damage in the amount of MONEY ( RUB ) , reimbursement of his lawyer 's fee and lost earnings in the amount of RUB CARDINAL . He also sought leave to appear before the court .

On DATE the Moskovskiy District Court of GPE granted the applicant leave to appear and scheduled the hearing for DATE .

ORG heard the case on DATE as scheduled . The applicant was not transported to participate in the hearing . Mr NORP , his representative , was present . He asked the court to consider the matter in the applicant 's absence . ORG granted the applicant 's claims in part and awarded him RUB CARDINAL in compensation for non - pecuniary damage . The remainder of the applicant 's claims were dismissed .

On a complaint by the applicant , the Presidium of ORG quashed the judgment of DATE by way of supervisory review on DATE . The court noted , inter alia , that ORG had failed : ( CARDINAL ) to inform the applicant of his duty to submit documents substantiating his claim for compensation for lost earnings ; and ( CARDINAL ) to establish the circumstances with regard to the applicant 's claim concerning non - pecuniary damage .

On DATE the applicant was notified of a new court hearing , scheduled for DATE . He was also advised of his right to be represented in the proceedings before the court .

NORP In response to ORG decision of DATE to grant the applicant leave to appear , the head of the administration of the penitentiary establishment responded that it was not possible to comply with the court 's decision . On DATE ORG adjourned the hearing .

On DATE ORG asked the applicant to make written submissions in connection with his claims . The applicant asked the court to appoint the regional ombudsman to represent him in the proceedings . He further asked the court to obtain certain documents to substantiate his claims for compensation for lost earnings and reimbursement of the lawyer 's fee .

On DATE ORG adjourned the hearing of the matter pending the receipt of the documents requested by the applicant . The court scheduled the next hearing for DATE and advised the applicant of his right to appoint a representative .

Following the ombudsman 's refusal to represent the applicant , the latter asked ORG to secure his presence at the next hearing .

On DATE ORG granted the applicant 's claims in part and awarded him RUB CARDINAL in compensation for non - pecuniary damage and RUB CARDINAL by way of reimbursement of the lawyer 's fee . The court dismissed the applicant 's claims for lost earnings , noting that he had failed to submit documents proving that he had been actually employed at the relevant time . Neither the applicant nor the respondents were present . The record of the court hearing and other items from the case file were forwarded to the applicant .

NORP The applicant appealed against the judgment of DATE . In response to the applicant 's request to be present at the appeal hearing , ORG informed him that the applicable laws did not provide for the personal presence of persons serving a prison sentence at a hearing concerning the determination of their civil rights and obligations . The court further advised the applicant of his right to submit observations in writing and/or to appoint a representative .

On DATE ORG upheld in substance the judgment of DATE on appeal , increasing to RUB CARDINAL the amount awarded to the applicant in compensation for non - pecuniary damage . Neither the applicant nor the respondents were present .

NORP Parties to civil proceedings may appear before a court in person or act through a representative ( LAW in force until DATE ( “ the old ORG ” ) and LAW in force as of DATE ( “ the new ORG ” ) . A court may appoint an advocate to represent a defendant whose place of residence is not known ( LAW . LAW ( Law no . CARDINAL-FZ of DATE ) provides that free legal assistance may be provided to indigent plaintiffs in civil disputes concerning alimony or pension payments or claims for health damage ( section CARDINAL § CARDINAL ) .

The Penitentiary Code provides that convicted persons may be transferred from a correctional colony to an investigative unit if their participation is required as witnesses , victims or suspects in connection with certain investigative measures ( Article CARDINAL ) . The Code does not mention the possibility for a convicted person to take part in civil proceedings , whether as a plaintiff or defendant .

On several occasions ORG has examined complaints by convicted persons whose requests for leave to appear in civil proceedings had been refused by courts . It has consistently declared the complaints inadmissible , finding that the contested provisions of LAW and LAW did not , as such , restrict the convicted person 's access to court . It has emphasised , nonetheless , that the convicted person should be able to make submissions to the civil court , either through a representative or in any other way provided by law . If necessary , the hearing may be held at the location where the convicted person is serving the sentence or the court hearing the case may instruct the court having territorial jurisdiction over the correctional colony to obtain the applicant 's submissions or carry out any other procedural steps ( decisions no . CARDINAL-O of DATE , no . CARDINAL of DATE , and no . CARDINAL of DATE ) .