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

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

NORP The facts of the case , as submitted by the parties and as apparent from documents available to the public , may be summarised as follows .

NORP In response to a rise in violent crime in the city of GPE the GPE ( PERSON ) of that city gave an order designating certain areas as security risk areas ( veiligheidsrisicogebieden ) . Relying on section CARDINALb of LAW ( PERSON ) , the PERSON designated most of the old centre of GPE as a security risk area for DATE on DATE . By virtue of such a decision , a public prosecutor ( PERSON ) was empowered , in accordance with section PERSON ) of LAW ( LOC en GPE ) , to order that for a randomly selected period of TIME any persons present in the designated area might be subjected to a search for the presence of weapons . The process came to be known as “ preventive searching ” ( preventief fouilleren ) .

The reasoning on which the order was based referred to statistics of incidents involving the use of weapons ( shootings , knifings , robberies , fatal and non - fatal casualties ) in each of the areas concerned . It was observed that such incidents occurred most often in the old centre of the city , especially around the PERSON ( the red - light district ) , the central station and around the concentrations of restaurants , bars and places of entertainment .

By order of CARDINAL DATE the PERSON designated the same area as a security risk area for DATE based on the fact that weapons were still being confiscated during searches and there had been insufficient decrease in the number of violent crimes .

On DATE the applicant , while in the designated security risk area , was stopped by police acting on orders of the public prosecutor to conduct searches of every person present in the security risk area . The applicant refused to submit to a search . He was then arrested ( aangehouden ) and taken to a police station , where he refused to give a statement ( verklaring ) .

On DATE a single - judge chamber ( politierechter ) of ORG ( rechtbank ) convicted the applicant of failing to obey a lawful order under LAW ) . He was sentenced to a fine of CARDINAL ( ORG ) .

The applicant lodged an appeal with ORG ( gerechtshof ) , which acquitted him of all charges on DATE . ORG considered that section CARDINALb of LAW imposed stringent requirements with regard to the decision to designate an area as a security risk area , especially in the light of NORP freedom of movement and respect for the right to privacy . The PERSON ’s decisions ( including the CARDINAL dated DATE ) did not meet the requirements of section CARDINALb as the PERSON had failed to give any reasons why the security risk area had to be designated for such lengthy periods and cover such a large area . Accordingly , the decisions were not in conformity with LAW either .

The Advocate General ( PERSON ) at ORG lodged an appeal on points of law ( cassatie ) with ORG ( PERSON ) against the judgment of ORG .

After the applicant submitted his application to the ORG , ORG , on DATE , granted the appeal lodged by ORG . ORG held that in considering the validity of the designation order the criminal judge should follow the approach of administrative courts in the matter . On that basis , and quoting from a judgment of ORG of ORG ( GPE bestuursrechtspraak PERSON ) of DATE ( Administrative Law Reports ( ORG ) DATE , no . CARDINAL ) , it found that the PERSON had a wide margin of appreciation ( beoordelingsmarge ) in assessing the need for any such order after consultation with the public prosecutor . It was for him or her to balance the interests involved , including public order and individual private life , against each other . The designation order should be limited in time and in area to what was necessary ( noodzakelijk ) to maintain public order . The PERSON ’s choices had to be properly reasoned and proportionate to the interference with the private life of anyone present in the area concerned . The role of the criminal courts was limited to assessing the lawfulness and reasonableness of the PERSON ’s decision .

Considering the case in this light , ORG held that ORG had correctly considered that the PERSON ’s decision of DATE had to be read in conjunction with his original decision of DATE . Nevertheless , in finding that insufficient reasons had been given for the decision of CARDINAL DATE ORG had failed to take into account the extensive report which had formed the basis for the DATE decision . ORG therefore quashed the judgment of ORG and remitted the case to ORG for re - hearing .

NORP In a judgment of CARDINAL DATE , ORG found that the PERSON had given sufficient reasons for his decision of DATE by referring to the considerations contained in the original decision of DATE . ORG further considered that any interference with the applicant ’s rights under LAW had taken place in the interests of the protection of public order and in accordance with the margin of appreciation awarded to GPE . For those reasons ORG found the applicant guilty of failing to obey a lawful order , but imposed no sentence on him .

The applicant did not lodge an appeal on points of law against this judgment .

By decision of DATE the PERSON again designated the same area as a security risk area for DATE as weapons were still being confiscated even though the number of violent crimes had decreased significantly .

On DATE the PERSON again designated the same area of the centre of GPE as a security risk area , this time for a period of DATE .

On DATE , the PERSON , taking into account the judgment of ORG ( see paragraph CARDINAL above ) , issued a decision altering the original decision of DATE by designating the same area as a security risk area for DATE instead of the original CARDINAL . The PERSON also set out more extensive reasons for his decision , including a breakdown of the decrease in weapon - related crimes following the introduction of preventive searching in the security risk areas . For GPE city centre alone , it was noted that numbers of weapons - related incidents had dropped to CARDINAL DATE and DATE , down from CARDINAL ; DATE and DATE , from CARDINAL to CARDINAL ; DATE and DATE , from CARDINAL to CARDINAL . In PERCENT of all preventive search operations until then CARDINAL weapon had been found .

On DATE the applicant lodged an objection ( bezwaar ) against the decision of the PERSON of DATE . The applicant submitted that the designated security risk area was too large and that there were insufficient reasons for including the different districts , considering the impact on people ’s right to respect for their privacy and freedom of movement . The applicant further alleged that the percentages used by the PERSON to support his decision had been calculated in such a way as to make his policy seem more effective than it really was .

On DATE , whilst awaiting the outcome of his objection , the applicant also applied for a provisional measure ( voorlopige voorziening ) on the same grounds as his objection .

On DATE the provisional - measures judge ( voorzieningenrechter ) of ORG declared the applicant ’s request inadmissible on the ground that the applicant did not appear to have a direct interest in the decision of the PERSON dated DATE and that presumably the applicant ’s objection would be declared inadmissible for the same reason .

On DATE the PERSON declared the applicant ’s objection inadmissible as the applicant could not be regarded as a person with a direct interest ( belanghebbende ) as required by article CARDINAL:CARDINAL of LAW ( Algemene wet bestuursrecht ) . The PERSON held that a person could only be said to have a direct interest if that interest was strictly personal , real and direct and could be identified objectively . According to the PERSON , the applicant neither lived in the security risk area nor had a paid job which required him to be in the area at regular set times . The fact that the applicant claimed to be engaged in volunteer work and paid social visits to friends in the designated area did not suffice to give him a direct interest .

The applicant did not appeal against this decision to ORG ; the reason he gives is that the designation order of DATE was due to expire on DATE .

The municipality of GPE commissioned ORG ( ORG Instituut voor Veiligheids- en ORG ) , a body based in GPE , to produce a series of evaluation reports on preventive searches in the security risk areas . The ORG has studied CARDINAL of these , which contain data pertaining to the time of the events complained of .

On CARDINAL DATE ORG published a report entitled “ Evaluation of preventive body searches in GPE : The current situation ” ( Evaluatie Preventief Fouilleren in GPE : PERSON stand van zaken ) . It covered the period DATE .

NORP In GPE city centre , DATE and DATE CARDINAL weapon had been found for every CARDINAL persons searched . DATE and DATE one weapon had been found for every CARDINAL persons searched ; DATE and DATE , again , CARDINAL weapon for every QUANTITY persons searched ; and DATE , CARDINAL weapon for every CARDINAL persons searched . In GPE , which has a far more modern and open layout than the old city centre , there were generally far fewer weapons found until the search operations were planned to cover times and places at which the risk of violent incidents was highest ; the number of weapons found then rose to CARDINAL per CARDINAL persons searched . The report mentioned that the operations that had had the greatest effect in relation to the police manpower invested had lasted for TIME or less , which could be explained by the loss of the advantage of surprise as an operation dragged on for longer .

The number of incidents involving the use of weapons had dropped during this period . In GPE city centre , DATE and DATE there had been CARDINAL such incidents ; DATE , only CARDINAL , or PERCENT fewer . The number of muggings in this area dropped from CARDINAL to CARDINAL , a reduction of PERCENT . In GPE , the number of weapons - related incidents had dropped by PERCENT in comparison of the same periods . Within the area of jurisdiction of the GPE - Amstelland Police Force as a whole , the total decrease had been PERCENT ; if the security risk areas were excluded , it had been PERCENT .

The evaluation report mentions the applicant ’s case , which at the time the report was published was still pending before ORG .

NORP The report recommended that random searches be continued in the same CARDINAL areas , given their obvious effectiveness . It also made further proposals aimed at increasing efficiency .

In DATE the ORG published a report entitled “ Evaluation of preventive body searches in GPE : Gains , incidents involving weapons and hot spots ” ( Evaluatie Preventief Fouilleren in GPE : Opbrengsten , wapenincidenten en hot spots ) . It was noted that searches had become more efficient , which had allowed more persons to be searched within a given time . DATE and DATE CARDINAL weapon had been found for every CARDINAL persons searched in GPE centre ; in GPE , the corresponding figure was one weapon for every CARDINAL persons searched .

Numbers of weapons - related incidents had continued to decline . As compared to the period from DATE until DATE , DATE there were PERCENT fewer such incidents ( CARDINAL , down from CARDINAL ) ; in GPE , PERCENT fewer ( CARDINAL , down from CARDINAL ) .

The frequency of weapons - related incidents had increased by PERCENT in GPE outside the security risk areas ; within the area of jurisdiction of the GPE - Amstelland Police Force as a whole , there had been a reduction of PERCENT .

The report identified CARDINAL “ hot spots ” outside the existing security risk areas where incidents involving the use of weapons were frequent . In CARDINAL of them the problem was so serious that preventive searches should be carried out there too .

By letter dated CARDINAL DATE the applicant informed the ORG that the same area had been designated as a security risk area for the seventh consecutive time .

Article CARDINAL of LAW , in its relevant part , provides :

“ CARDINAL . Any person who intentionally fails to comply with an order or demand made in accordance with a statutory regulation by an official charged with supervisory powers or by an official responsible for the detection or investigation of criminal offences or duly authorised for this purpose , and any person who intentionally obstructs , hinders or thwarts any act carried out by such an official in the implementation of any statutory regulation , shall be liable to a term of imprisonment not exceeding DATE or a second - category fine . ... ”

Section CARDINALb of LAW provides :

“ CARDINAL . The local council ( raad ) may by municipal bye - law authorise the PERSON to designate an area , including buildings open to the public ( and their grounds ) situated therein , as a security risk area in the event of a public order disturbance caused by the presence of weapons , or if there is a serious fear of such a disturbance occurring . In a security risk area a public prosecutor may exercise the powers referred to in LAW , subsection CARDINAL , section CARDINAL , subsection CARDINAL and LAW , subsection CARDINAL of LAW .

NORP The PERSON shall not designate a security risk area without first consulting with the public prosecutor in the consultations referred to in section CARDINAL of the DATE LAW ( Politiewet DATE ) .

The designation of a security risk area is of a limited duration and covers a geographical area that is no greater than strictly necessary for maintaining public order .

NORP The decision to designate a security risk area must be recorded in writing and state both the area to which it applies and its period of validity . If the situation is so urgent that the PERSON is unable to record the decision in writing in advance , he or she must both record the decision in writing and make it public as quickly as possible .

The PERSON shall notify the local council and the public prosecutor referred to in subsection CARDINAL of the designation of a security risk area as quickly as possible .

As soon as the public order disturbance caused by the presence of weapons or the serious fear of such a disturbance occurring as referred to in subsection CARDINAL has abated , the PERSON shall revoke the designation of the security risk area . Subsection CARDINAL applies mutatis mutandis . ”

Section QUANTITY of LAW , in its relevant part , provides :

“ CARDINAL . Any member of the council may put questions orally or in writing to the LOC and Aldermen or the PERSON as the case may be ( PERSON lid van de raad kan het college of de burgemeester mondeling of schriftelijk vragen stellen . ) ... ”

Section CARDINALa of LAW , in its relevant part , provides :

“ CARDINAL . The council may , at the proposal of CARDINAL or more of its members , order an investigation into the administration carried out by the LOC and Aldermen or the PERSON as the case may be ( het door het college of de burgemeester gevoerde bestuur ) . ... ”

Section DATE LAW provides :

“ The PERSON and the public prosecutor shall hold regular consultations with the head of the territorial unit of the regional police force within whose territory the municipality or part of it is located , and if necessary with the regional police force commander ( korpschef ) , about the discharge by the police of their duties . ”

Section CARDINAL(CARDINAL ) of LAW provides :

“ In areas that have been designated by the PERSON as security risk areas in accordance with section CARDINALb , subsection CARDINAL of LAW , the public prosecutor may order that any individual can be subjected to a search of his clothing to establish whether he has firearms , ammunition or offensive weapons in his possession . The public prosecutor ’s order shall describe the designated area and state the order ’s period of validity , which may not exceed TIME . The order shall also explain the facts and circumstances that form the basis for concluding that it is necessary to exercise the power to subject any individual to a search of his clothing to establish whether he has weapons or ammunition in his possession . ”

At the relevant time , the DATE general municipal bye - law ( PERSON ) of GPE applied . Its section CARDINAL.CARDINALA provided :

“ In the event of a public order disturbance caused by the presence of weapons , or if there is a serious fear of such a disturbance occurring , the PERSON may designate public highways and buildings ( and their grounds ) situated along them as a security risk area . ”

According to section CARDINAL:CARDINAL of LAW ( PERSON ) , anyone with a legal interest may challenge an administrative decision before ORG , provided that he or she has first lodged an objection with the administrative body that has taken the decision in issue ( section CARDINAL ) . A further appeal lies to ORG of ORG ( at the relevant time , section CARDINAL of ORG ( Wet op de Raad van State ) ) .

ORG has held that a conviction under LAW is possible only if the order disobeyed by the accused was given by an official within the limits of his or her lawful authority ( see its judgment of DATE , ORG ( PERSON ) DATE , no . CARDINAL ) . From this it follows that the criminal court has a responsibility of its own to determine whether the statutory regulation on which the order is based is actually binding , and whether the order has been lawfully given ; if the issue is raised by the defence , the criminal court must answer it , irrespective of whether or not the accused has first addressed these matters before the competent administrative tribunals ( see ORG judgment of DATE , GPE Law Reports DATE , no . CARDINAL ) .

In a decision of DATE , Administrative Law Reports DATE , no . CARDINAL , ORG of ORG dismissed an appeal lodged against the designation of much of the centre of the town of PERSON as a security risk area on DATE and DATE TIME . Identifying the designation order as delegated legislation ( besluit van algemene strekking ) , it held that persons wishing to contest such an order had to demonstrate an individual interest which sufficiently distinguished them from others . It noted that the appellant did not reside , or work , or carry on a business in that area ; was not compelled for any other reason to remain there for any length of time ; and had no rights to immovable property there either . In view of , in particular , the times at which the designation order was in force , the stated fact that the appellant had been a resident of PERSON for DATE ; went out in the area concerned ; and was wo nt to visit friends and family there was insufficient to distinguish her individual interest from that of others .

NORP Moreover , no violation of LAW No . CARDINAL to the Convention could be found since there was no certainty that the appellant would ever actually be searched , and since in any case there was no particular need for the appellant to be within the area concerned with any regularity ; any interference with her rights was therefore so uncertain that it could not be considered a reasonably foreseeable consequence of the designation order . That being so , there was no “ arguable claim ” for the purposes of LAW either .

In its above - mentioned decision of CARDINAL DATE ( Administrative Law Reports DATE , no . CARDINAL ) , ORG allowed an appeal brought by the PERSON of GPE against the suspension of a designation order by the provisional measures judge ( voorzieningenrechter ) pending reconsideration of the order on its merits . It found that the PERSON had a wide margin of appreciation in assessing the need for any such order after consultation with the public prosecutor . It was for him or her to balance the interests involved , including public order against individual private life , against each other . The designation order should be limited in time and in area to what was necessary to maintain public order . The PERSON ’s choices had to be properly reasoned and proportionate to the interference with the private life of anyone present in the area concerned .

In the particular case , these requirements had been met , given the frequency of incidents involving the use of firearms in the area and the number of weapons found during earlier searches . Although searches constituted an interference with the right to respect for “ private life ” within the meaning of LAW , given the margin of appreciation of the domestic authorities the PERSON could reasonably consider such measures in pursuit of the interests of public safety and the prevention of disorder or crime to answer a “ pressing social need ” and to meet the requirement of proportionality .


ESTATE OF KRESTEN FILTENBORG MORTENSEN v. DENMARK

The NORP national , Mr PERSON , ( “ KFM ” ) , was born in DATE and died on DATE . His estate is the applicant in the present case , represented by his son , PERSON PERSON , ( “ N ” ) , who was represented before the Court by Mr FAC , a lawyer practising in PERSON .

ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , of ORG , and their co - Agent , PERSON of ORG .

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

At the time of ORG ’s death , he was divorced and had CARDINAL legitimate son , N , born on DATE .

During his marriage , KFM had a relationship with a married woman , J , who gave birth to CARDINAL sons , B and P , in DATE and DATE respectively . From DATE until her death in DATE , J lived with ORG , who had by then divorced his first wife .

Following ORG ’s death in DATE , B and P requested ORG ( ORG ) , under LAW ( Retsplejeloven ) , to establish their paternity , since in their view their father was KFM and not the man to whom their mother had been married .

At a hearing before ORG on DATE , B and P testified that they had been told by their mother , PERSON , that ORG was their biological father as opposed to their legal father . Their legal father testified that he had divorced J because he suspected her of adultery and that J ’s family had told him that he was not the father of B and ORG testified that ORG had never said anything to him about having children with J and that when PERSON died in DATE , ORG had remarked that things were now settled “ with ORG family ” .

By decision of DATE ORG decided , in view of the evidence adduced , that it could not be ruled out that ORG was the biological father of B and P , and that the estate of ORG should therefore be a party to the paternity proceedings in accordance with LAW . Moreover , in accordance with the said provision , forensic genetic tests should be carried out , as they might be expected to produce evidence of considerable weight for or against ORG being the biological father of B and ORG estate appealed against both decisions before ORG of Western Denmark ( ORG ) , which found against it on DATE .

Accordingly , blood samples were taken from B and P , their legal father , CARDINAL of J ’s siblings , and a sister of ORG . N did not wish to participate in the genetic tests .

Subsequently , on the basis of the samples provided , ORG ( ORG ) found it established that B and P ’s legal father , with a probability that exceeded PERCENT , was not their biological father . Moreover , it found that the results suggested that ORG , rather than some random man , was B and P ’s biological father , with probability ratios of ORG and CARDINAL respectively .

CARDINAL testimonies were submitted before ORG by KFM ’s siblings , colleagues and acquaintances , all of whom endorsed the notion that ORG was B and P ’s father .

On DATE B died .

On DATE ORG answered CARDINAL questions put by ORG as to the likelihood of obtaining valid DNA results from the tissue of a deceased person .

On DATE ORG decided , in accordance with section PERSON ) of ORG , that ORG body was to be exhumed for the purpose of taking DNA samples , as such samples were assumed to be of significant , and probably decisive , importance in establishing paternity , and were the only remaining option .

ORG estate appealed against the decision before ORG which , by decision of DATE , amended ORG decision . It stated that the estate of the deceased was party to the paternity suit and that it was therefore obliged , pursuant to section CARDINAL ( k ) of ORG , to participate in tests which entailed providing blood samples or similar , if the court decided that such tests were necessary . Furthermore , it followed from section CARDINAL ( l ) of the LAW that the court could decide to use the various measures mentioned in LAW to compel parties to participate in such tests if they refused to do so voluntarily . ORG found , however , that in paternity cases neither ORG nor any other provision of NORP law provided a basis for taking body samples by the use of physical force , as opposed to measures to compel living persons to give samples . Hence , ORG found that tests of the kind ordered by ORG constituted interference with the sanctity of the grave and that such interference was comparable with the measures to compel living persons to give samples . ORG concluded that such interference could not be effected by force for the purpose of obtaining evidence in a paternity suit without an explicit legal basis , which ORG found did not exist in domestic law . Accordingly , ORG refused to order the exhumation of ORG and the taking of samples from his corpse for use in the paternity suit .

P was granted leave to appeal against the judgment before ORG ( Højesteret ) , which on DATE permitted the taking of biological material from ORG ’s corpse . In reaching its decision , ORG stated as follows :

“ By decision of DATE ORG upheld ORG decision that the estate of [ KFM ] was a party to the paternity suit . That decision is not under review by ORG in the present case .

Since [ P ] was born in DATE , it is the provisions inserted into ORG . CARDINAL of CARDINAL DATE in chapter CARDINAL ( a ) concerning the proceedings in paternity suits that are applicable , pursuant to the provisions on the entry into force of the Act contained in section CARDINAL(CARDINAL ) of Act No . CARDINAL of CARDINAL DATE amending ORG . The provisions of the said LAW concerning the court ’s duty to elucidate the case which are relevant in the present case are broadly similar to the provisions of ORG ( chapter DATE ( a ) ) currently in force . Hence , if the court considers forensic genetic testing of the parties to the case to be necessary , it may order such tests under section CARDINAL ( l ) of LAW , sections CARDINAL ( k ) and CARDINAL ( l ) of the DATE Act and section CARDINAL ( h ) ( CARDINAL ) of the current LAW . The reference therein to the provisions of ORG on measures to require witnesses to comply must be understood as specifying the measures which can be taken against a party who is alive , and are therefore without relevance if the test is to be carried out on a party who is deceased . ”

The majority of ORG ( CARDINAL judges ) went on to state :

“ The fact that ORG does not contain any specific rules on forensic genetic testing of deceased persons should not lead to the existing rules , according to which [ in a paternity case ] the court may decide to compel the parties to undergo genetic testing , being narrowly construed to mean that the [ existing ] legal basis does not cover testing of deceased persons .

Pursuant to section CARDINAL ( CARDINAL ) of the LAW on PERSON ’s Inquests , Post - Mortem Examinations and Transplantation , etc . ( PERSON om ligsyn , obduktion og transplantation m.v . ) , interference with a corpse , other than the kind mentioned in LAW ( on post - mortem examinations ) and in chapter CARDINAL ( on transplantation ) , may be carried out only if the deceased person , having turned DATE , consented thereto in writing . According to the preparatory notes ( GPE DATE , tillæg A , spalte CARDINAL ) , the above provision concerns interference with a scientific or educational purpose which is not carried out in connection with a post - mortem examination . It is not mentioned , however , whether the provision applies to other forensic tests under chapter DATE ( a ) of ORG [ that is , to paternity cases ] or to other civil proceedings involving the estate or a surviving relative in which it becomes necessary to carry out forensic tests on a deceased person in order to gather evidence .

In these circumstances we consider that section CARDINAL of the Act on Coroner ’s Inquests , Post - Mortem Examinations and Transplantation does not restrict the legal basis provided by chapter CARDINAL ( a ) of ORG [ to the effect ] that , if deemed necessary , the court may decide that forensic genetic tests should be carried out , even on a deceased party . In its assessment , however , having regard to the principle of proportionality , the court must balance the extent of such interference with the need to elucidate the particular case .

[ N ] having refused to participate in forensic genetic testing , tests have been carried out on all possible living persons [ in the case ] . In view of the fact that these tests , and the information submitted in the case , have confirmed [ P ’s ] allegation that [ KFM ] is his father , and in the light of the content of ORG letter of DATE , we uphold ORG decision of DATE authorising the taking of tissue samples from the deceased [ KFM ] . ”

The minority of ORG ( CARDINAL judges ) found :

“ Without the existence of clear support in section CARDINAL ( g ) and CARDINAL ( l ) of ORG [ No . CARDINAL of CARDINAL DATE , in force at the relevant time , when P was born ] or the preparatory notes , we find it insufficiently established that these provisions confer authority to take blood samples or carry out other tests on the deceased .

In our opinion it is a matter for the legislator to decide whether it should be possible to carry out such testing , and in the affirmative to indicate the specific conditions governing it . Accordingly , we vote in favour of upholding ORG decision . ”

Following ORG decision , ORG ’s corpse was exhumed and tissue samples were taken . However , ORG was unable to make a typological classification of the samples , apparently owing to the time that had elapsed since ORG ’s burial .

On DATE ORG of Holstebro delivered the following judgment :

“ The forensic genetic tests carried out and the content of the written statements corroborate the claim that [ KFM ] is the father of [ B and P ] . The court does not find , however , that the test results and the statements can be given such weight as to prove with sufficient certainty that [ KFM ] had intercourse with the mother at the time of conception . Therefore , the court finds in favour of the defendant [ the estate of KFM ] . ”

Accordingly , N , as the only legitimate son of KFM and sole heir , inherited the estate .

ORG was amended by Act No . CARDINAL of DATE when a special chapter DATE ( a ) on paternity suits was inserted . The relevant provisions of this chapter read as follows :

“ The court shall ensure of its own motion that the [ paternity ] case is elucidated . Anyone who , according to information which emerges during the proceedings , could have made the woman in question pregnant shall be made a party to the case by the court .

The court itself shall decide on the calling of parties and witnesses to give testimony , and the obtaining of expert statements and other evidence . ... ”

If , in order to elucidate the case , the court finds it necessary to require blood - type determination of the mother , the child or the respondent(s ) , it shall ensure that the necessary tests are carried out . When the circumstances strongly support such action and it can be taken without significant disturbance to the person in question , the court may also take steps to have other tests carried out on these persons , who shall be required to present themselves for tests , provide blood samples , etc . If they refuse , the measures in sections CARDINAL and CARDINAL shall be applicable . ”

The above - mentioned provisions of ORG were amended by Act No . CARDINAL of CARDINAL DATE . This Act contains the following section CARDINAL concerning scope and transitional period :

“ This Act shall enter into force on DATE . It shall not apply to LOC or GPE . The Act shall apply only to cases concerning children born after its entry into force [ ... ] . ”

Sections CARDINAL ( k ) and CARDINAL ( l ) of the current ORG read as follows :

“ If , in order to elucidate the case , the court finds it necessary to require blood - type determination or other tests to be carried out on the parties , it shall ensure that such tests are carried out . The persons concerned shall be required to undergo the tests , give blood samples , etc . ”

“ The measures set out in section CARDINAL shall be applicable with regard to the parties’ obligations set out in the present chapter . ”

The measures to ensure compliance referred to in section CARDINAL ( l ) above of ORG as amended in DATE ( sections CARDINAL and CARDINAL ) are broadly similar to those found in the current ORG , section CARDINAL , which reads as follows :

“ If for no legitimate reason a witness fails to appear ... or for no legitimate reason refuses to testify , the court may

impose a fine on the witness

fetch the witness with the assistance of the police

order the witness to reimburse costs occasioned by him or her

impose a DATE fine , for a period not exceeding DATE in the same case , continuously or in total

impose police detention or impose on the witness the measures prescribed in section CARDINAL , until the person appears before the court to give testimony or until the witness agrees to testify . Such measures may not be applied for a period of DATE in the same case , continuously or in total .

Section CARDINAL ( CARDINAL ) of the Act on Coroner ’s Inquests , Post - Mortem Examinations and Transplantation , etc . , reads as follows :

“ Interference with a corpse , other than that mentioned in chapters DATE , may take place only if the deceased person , having turned DATE , gave his or her consent in writing . ”


Violation of Art. 10;Not necessary to examine Art. 6;Just satisfaction dismissed (out of time)

The applicant was born in DATE and currently lives in GPE . At the relevant time , he was employed as a tax inspector and has , CARDINAL , been the Vice President of the local branch of ORG stranka ORG ) .

On DATE ORG ( PERSON ) in GPE convicted the applicant of criminal defamation ( kleveta ) and ordered him to pay a fine in the amount of MONEY ( “ ORG ” ) plus an additional YUD CARDINAL in costs .

In the operative part of this judgment the court established : ( i ) that on DATE the applicant had taken part in a “ public gathering ” ( javni skup ) in FAC ; ( ii ) that this “ gathering ” was attended by the Deputy Prime Minister of GPE , the Deputy Minister for ORG and ORG , as well as CARDINAL municipal councillors and other leading local figures ; and ( iii ) that on this occasion the applicant had publicly stated that Mr PERSON , at that time the Mayor of Babušnica , “ was not the right person for this job ” , given that he had already “ embezzled CARDINAL NORP Marks ” ( jer je proneverio CARDINAL CARDINAL DM ) . The court then concluded that this statement was “ untrue ” and , as such , capable of “ damaging the reputation and honour ” of Mr PERSON , a well - known and respected local businessman and public servant ( društveno - politički radnik ) , and proceeded to find the applicant guilty as charged .

In its reasoning , inter alia , ORG relied on CARDINAL witnesses who , “ though members of different political parties ” , had heard the applicant state that the Mayor had “ embezzled ” CARDINAL,CARDINAL NORP Marks ” in DATE , as director of a major ORG - owned company , but dismissed , as unconvincing , the testimony of CARDINAL others who had stated that the applicant had said that the Mayor had “ deprived ” ( oštetio ) the State of the same amount in revenue . The court further held that the official TIME of the meeting in question , containing language to the same effect , were of “ no greater probative value ” because they were composed by a person who was himself merely a “ witness ” , and , finally , that a criminal complaint filed against the Mayor for tax evasion in DATE had not ultimately resulted in his conviction ( see paragraphs CARDINAL and CARDINAL below ) .

On DATE ORG ( Okružni sud ) in PERSON rejected the applicant 's appeal and , on the same facts , found him guilty of the crime of insult ( uvreda ) , rather than criminal defamation ( kleveta ) , holding that the meeting at issue could not be deemed a “ public gathering ” within the meaning of LAW . The sentence imposed by ORG , however , was upheld in its entirety and thereby became final .

On an unspecified date in DATE , the Mayor filed a separate civil compensation claim with ORG in GPE , seeking MONEY ( “ ORG ” ) for the mental anguish suffered due to the applicant 's statement referred to above .

On DATE ORG ruled partly in favour of the Mayor , without having heard him in person , and , in so doing , ordered the applicant to pay ORG CARDINAL in compensation , together with default interest , plus costs in the amount of ORG CARDINAL . At that time , this was equivalent to MONEY ( “ EUR ” ) , or , in more concrete terms , the applicant 's total net salary for DATE .

NORP In its reasoning , the court relied on the applicant 's criminal conviction , as well as the findings of the criminal courts , and held that the Mayor 's reputation had indeed been harmed , causing him serious and continuing mental anguish . The court noted that the plaintiff in this case was both a Mayor and a leading local businessman and concluded that adequate financial compensation was called for .

On DATE ORG in PERSON rejected the applicant 's appeal and , in so doing , fully accepted the reasoning of ORG , whose judgment thereby became final . The applicant received a written copy of ORG decision on DATE .

On DATE the applicant paid a total of ORG CARDINAL in respect of the compensation awarded against him , the interest accrued and the costs of the civil proceedings .

According to the official TIME of the meeting held in FAC on DATE , the Deputy Prime Minister stated that the purpose of this meeting was to “ asses the functioning of the municipality ” as a whole . He invited the participants to openly share their “ critical views ” in this respect and explained that , if needed , the ORG would consider imposing specific measures aimed at tackling any serious issues .

The minutes , thereafter , reflected that the applicant had accused the Mayor of not being “ the right person for the job ” and that “ this ... country deserved someone better ” . He then added that in DATE , in his capacity as a tax inspector , he had found “ numerous irregularities ” with respect to “ PERSON , a major ORG - run company headed by the Mayor , and that he had thus filed a criminal complaint , alleging that the Mayor had “ deprived the ORG of CARDINAL NORP Marks ” in revenue .

The applicant provided the ORG with the said criminal complaint , dated DATE , as well as CARDINAL separate decisions issued by ORG ( ORG uprava javnih prihoda ) : CARDINAL of CARDINAL DATE and DATE , respectively , ordering “ PERSON to pay its overdue taxes , and the third , of DATE , fining the company for its failure to do so .

Article CARDINAL defines different grounds for claiming civil compensation .

Article CARDINAL § CARDINAL provides that a legal entity , which includes the ORG , is liable for any damage caused by CARDINAL of “ its bodies ” .

Articles CARDINAL and CARDINAL , inter alia , state that anyone who has suffered mental anguish as a consequence of a breach of his or her honour or reputation may , depending on its duration and intensity , sue for financial compensation before the civil courts and , in addition , request other forms of redress “ which may be capable ” of affording adequate non - pecuniary satisfaction .

Articles CARDINAL and CARDINAL provide , inter alia , that a domestic court may decide to reduce the compensation award taking into account , ex officio , the specific financial circumstances of the respondent .

Article CARDINAL provided that a civil court was bound by a final decision of a criminal court in respect of whether or not a crime had been committed , as well as the criminal responsibility of the defendant .

A civil court dealing with a compensation claim shall be bound by the criminal court 's assessment of the defendant 's criminal responsibility . It “ shall not [ however ] be bound ” by any of its other findings ( Rev. CARDINAL ) and shall be entitled to “ assess independently ” the defendant 's civil liability ( Gž . CARDINAL/CARDINAL ) .

Articles CARDINAL § CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL provide that the Public Prosecutor shall , ex officio or in response to a party 's specific proposal , within DATE , have the right to lodge a ORG against a final civil court decision , if it transpires that the decision in question was “ based on the parties ' unlawful dispositions ” ( nedozvoljeno raspolaganje stranaka ) , i.e. those undertaken in breach of the “ binding provisions of domestic law , public order or the rules of morality ” ( prinudni propisi , javni poredak i pravila morala ) . Should the Public Prosecutor refuse to lodge a request of this sort within the prescribed deadline , the party who had urged him to do so shall , within DATE , have the right to file its own ORG with ORG .

LAW entered into force on DATE , thereby repealing LAW DATE . LAW and CARDINAL of LAW , however , provides that the DATE Act shall remain in force , inter alia , in respect of all proceedings where the first instance judgment was rendered prior to DATE and , further , that any pending Requests for ORG shall be dealt with on the basis of LAW .

Article CARDINAL of LAW ( Ustav PERSON ) published in ORG of GPE - OG SRS - no . CARDINAL provided as follows :

“ Everyone shall be entitled to compensation for any pecuniary and non - pecuniary damages suffered due to the unlawful or improper conduct of a ORG official , a ORG body or a public authority , in accordance with the law .

Such damages shall be covered by GPE or the public authority [ in question ] . ”

This LAW was repealed on DATE , which is when LAW , published in ORG no . CARDINAL , entered into force .

The substance of LAW of the “ new LAW corresponds , in its relevant part , to the above - cited text of DATE LAW .

The relevant provisions concerning the succession of ORG and GPE are set out in GPE judgment ( no . CARDINAL , § § DATE , DATE ) .


Preliminary objection rejected (non-exhaustion);No violation of Art. 6-1

Mr PERSON and his wife PERSON , née PERSON , are NORP nationals who live at Pomigliano d’Arco , near GPE .

On DATE they bought a CARDINAL - room flat in GPE from Mr PERSON and his wife ( their aunt ) for a down payment of MONEY ( ORG ) followed by DATE payments of ORG CARDINAL to the vendors during their lifetimes and to the survivor of the CARDINAL , without any reduction on the death of the first . The amount of the DATE payments was to be increased if the national family consumer price index rose by PERCENT or more . If a single instalment was not paid on the due date and a formal notice to pay remained without effect DATE , the contract would automatically be rescinded if those to whom the payments were due so wished .

On DATE the applicants were served with a formal notice to pay arrears and co - ownership service charges , about FRF CARDINAL in all , but they did not act on it .

On DATE Mr and PERSON summoned PERSON and PERSON before the GPE tribunal de grande instance . They asked the court to declare that the sale was automatically rescinded through the fault of the defendants . The latter filed pleadings on CARDINAL DATE and the plaintiffs - who had been granted CARDINAL extensions of time by the judge responsible for preparing the case for trial - did so on DATE .

On DATE the applicants filed pleadings in reply . Their lawyer died and they instructed another one .

On DATE Mr PERSON died . On DATE his widow asked the court to formally acknowledge her wish to continue with the proceedings . On DATE the judge responsible for preparing the case issued an order certifying that it was ready for trial .

The public hearing took place on DATE . In a judgment of DATE the court refused to declare that the contract of sale was rescinded .

On DATE CARDINAL PERSON appealed to the FAC - en - ORG of Appeal and the case was entered in the court ’s list on DATE . The respondents filed their pleadings on CARDINAL DATE and the appellant filed hers on DATE and DATE . The order certifying that the case was ready for trial was made on DATE , and the hearing took place on DATE .

On DATE the Aix - en - Provence Court of Appeal reversed the decision of the court below and granted a declaration that the sale was rescinded through the fault of the applicants .

On DATE , this judgment having been notified to them , PERSON and PERSON appealed to ORG .

On DATE they filed their supplementary pleadings , and on DATE these were served on the respondent , who replied on DATE . DATE , the case was allocated to ORG and the reporting judge appointed . The latter produced his report on DATE and ORG to be responsible for the case was assigned on DATE .

On DATE ORG dismissed the appeal on the following grounds :

Having found that PERSON and PERSON had not within DATE complied with the formal notice to pay of DATE , which ontained a reminder of the clause providing for automatic rescission of the contract , and had not within the same period made any genuine , serious offers to pay at least the sums which they acknowledged they owed , the court below , in response to the submissions and except for the misinterpretation of the detailed figures produced by PERSON and PERSON , legitimately decided that the sale was rescinded .

Moreover , having noted that by the terms of the contract of sale ny instalments due or other sums paid by DATE of the formal notice to pay would , in the event of rescission of the sale , remain the property of the beneficiaries by way of compensation , without prejudicing their right to sue for recovery of any amounts due , the court below applied these contractual provisions without misinterpreting them .

For these reasons , ORG decision was justified in law .

ORG The Government relied on the following CARDINAL provisions of LAW :

" The proceedings may be voluntarily resumed in the manner prescribed for the submission of the grounds of defence .

If they are not resumed voluntarily , they may be recommenced by way of summons . "

" If counsel for CARDINAL of the parties has not carried out the procedural steps within the time allowed , referral of the case to the court and termination of the preparation of the case for trial may be ordered by the judge [ responsible for preparing the case for trial ] of his own motion or on an application by another party ; in the latter case the judge shall have a discretion to refuse the application in an order setting out his reasons and which shall be final . "

" The case shall be prepared for trial under the supervision of a judge of the division of the court to which it has been allocated , as provided in Articles CARDINAL - CARDINAL and in the following provisions .

( D[ecree ] no . CARDINAL , DATE , Art . CARDINAL , with effect from DATE ) Where a case appears to be urgent or to be ready for trial within a short time , the presiding judge of the division to which it has been allocated shall fix the date and time at which it will be called ; on DATE , matters shall proceed as provided in LAW . "

By LAW ,

" The ORG shall be under an obligation to compensate for damage caused by any malfunctioning of the system of justice . This liability shall be incurred only in respect of gross negligence or a denial of justice .

This provision can be relied on not only in a non - contentious application ( recours gracieux ) to the Minister of ORG , but also - subsequently or at the outset - for the purpose of instituting contentious proceedings .

According to ORG statistics , ORG received CARDINAL applications DATE . CARDINAL of these were successful ; CARDINAL were refused ; no action was taken on CARDINAL of them ; and CARDINAL were still under consideration at DATE . In CARDINAL applications - of which CARDINAL had failed and CARDINAL was pending - the complaint concerned the length of proceedings .

During the same period , likewise according to ORG , CARDINAL cases came before the courts . The plaintiffs were unsuccessful in CARDINAL cases and successful in DATE , the compensation awarded totalling ORG CARDINAL . CARDINAL claims had been settled and CARDINAL applications remained to be heard .

In a bankruptcy case which had lasted for DATE ( Fuchs c. Agent judiciaire du Trésor public ) ORG ordered the ORG to pay ORG CARDINAL in damages . Its judgment of CARDINAL DATE contained the following reasons :

" The court ’s delay in giving judgment and the persistent silence maintained by the bankruptcy judge and the court vis - à - vis the receiver of the PERSON company amounted to a breach of duty , and the decision subsequently given on DATE stemmed from an error in assessing the situation as submitted to the court .

The breach of duty and the error in assessment are particularly serious on account of the factual and procedural circumstances with which the court was fully acquainted and which clearly made it imperative to terminate rapidly a bankruptcy that was no longer justified . These were flagrant breaches amounting to gross negligence in the functioning of the system of justice and they entail the ORG ’s liability ;


Violation of Art. 6-1;Not necessary to examine Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

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

In DATE he requested , pursuant to newly adopted legislation , that a flat in which he lived and which was located in a block of flats in Dubnica nad Váhom , GPE should be sold to him .

The applicant alleged that his neighbours and other individuals subsequently disturbed him by their noisy behaviour , mockery and threats . On several occasions the door and windows of his flat and his letter box were damaged . The applicant considers that the purpose of those interferences was to dissuade him from buying the flat .

On several occasions the applicant asked the police department in Dubnica nad Váhom to investigate the disturbances and to prosecute the persons responsible . He cited , inter alia , family B. The police informed him that the facts he had complained of could not be established and that accordingly the investigation of his complaints had been closed . On DATE the police department , acting pursuant to section CARDINAL of the DATE LAW , notified the Dubnica nad Váhom local office ( ORG úrad ) about the complaints brought by the applicant ( see paragraph CARDINAL below ) .

On DATE the local office found that the applicant had committed a minor offence ( priestupok ) under section CARDINAL ) of LAW in that without justification he had accused family B. of causing a nuisance . The decision was based on the evidence submitted by the police department in Dubnica nad Váhom and on the facts which were established in the course of the proceedings before the local office .

The applicant was fined CARDINAL NORP korunas ( SKK ) and ordered to pay SKK CARDINAL in respect of the costs of the proceedings . The decision of the local office was signed by the head of its legal department . The applicant appealed against that decision to the LOC district office ( ORG úrad ) .

On DATE the district office dismissed the appeal and upheld the decision of the local office . The applicant 's case was examined by the legal department of the district office which rejected his appeal in a decision signed by the head of that department .

On DATE the applicant brought a complaint before ORG ( Ústavný súd ) . In his submissions to that court he alleged , inter alia , a violation of LAW in that there had been no fair and public hearing in his case and that the administrative authorities dealing with it had not been impartial .

On DATE ORG dismissed the applicant ’s complaint as being manifestly ill - founded . It held , inter alia :

“ A minor offence is characterised , in general , by a wrongful breach of law or legal obligations in different spheres of public administration which represents a minor danger to the society . Because of its character , a minor offence is not subject to examination by a court ... In accordance with LAW , the examination of minor offences falls within the competence of administrative authorities . Pursuant to section CARDINAL of LAW , in conjunction with Articles CARDINAL et seq . of ORG , the lawfulness of administrative organs ' decisions on minor offences can be reviewed by courts only in cases where a fine exceeding SKK CARDINAL has been imposed , the exercise of a certain activity has been prohibited for a period exceeding six months or an object of a value exceeding SKK CARDINAL has been confiscated . The aforesaid provision of the special Act governing minor offences is fully binding also on ORG of GPE . ”

On DATE ORG rejected the applicant 's request for the review of its decision of DATE .

DATE LAW guarantees to everyone who claims to have been denied his rights as a result of a decision made by a public administrative authority the right to appeal to a court of law and have the legality of the decision reviewed , unless otherwise provided by law . The review of decisions on matters of fundamental rights and freedoms may not be excluded from the jurisdiction of courts of law .

Article CARDINAL entitles the government to grant pardons in matters concerning minor offences .

Pursuant to LAW ORG decides on complaints concerning final decisions made by , inter alia , local government authorities and local self - governing bodies in cases concerning violations of the fundamental rights and freedoms of citizens , unless the protection of such rights falls under the jurisdiction of another court .

At the time of the offence the legislation read as follows .

Section CARDINAL of LAW defines its purpose in the following terms :

“ Administrative authorities of GPE and municipal organs shall encourage citizens to respect legal rules and the rights of other citizens . They shall ensure , in particular , that citizens do not impede the conduct of the administration ... and contravene public order and civic propriety . ”

Section CARDINAL(CARDINAL ) provides the following definition of a minor offence :

“ A minor offence is a wrongful act which interferes with or causes danger to the public interest and is expressly classified as a minor offence in this LAW or another law , unless such an act represents a separate administrative offence punishable under special legal rules or a criminal offence . ”

Section CARDINAL entitles the competent authorities to impose sanctions ( sankcie ) on the perpetrators of minor offences . It reads as follows :

“ ( CARDINAL ) The following sanctions may be imposed for a minor offence :

( a ) reprimand ,

( b ) fine ,

( c ) prohibition to exercise a certain activity ,

( d ) confiscation of an object .

( CARDINAL ) A sanction can be imposed either separately or in combination with another sanction ; a reprimand can not be combined with a fine .

( CARDINAL ) It is permissible to decide not to impose a sanction if the mere fact that the minor offence was examined is sufficient to reform its perpetrator . ”

Section CARDINAL(CARDINAL ) , as relevant , provides :

“ When determining the type and amount of the sanction , the seriousness of the minor offence and , in particular , the way and the circumstances in which it was committed , its consequences , the degree of guilt , the motive and the character of the perpetrator including whether or not he or she has already been punished for the same act in ... disciplinary proceedings should be taken into account . ”

Section CARDINAL of the Act governs minor offences against civic propriety . Pursuant to section CARDINAL(CARDINAL)(d ) a minor offence is committed by a person who deliberately offends against civic propriety by threat of bodily harm , by causing minor bodily injury , by unjustifiably accusing another person of a minor offence , by annoyances or other rude behaviour . Under section CARDINAL ) such a minor offence is punishable with a maximum fine of SKK CARDINAL .

According to section CARDINAL the proceedings concerning minor offences are governed , unless otherwise provided , by LAW .

Section CARDINAL provides that the following administrative authorities are entitled to examine minor offences : ( i ) local offices , ( ii ) police authorities if a minor offence was committed in breach of the generally binding legal rules relating to the security of road traffic and ( iii ) other organs of ORG administration if a special law so provides .

Pursuant to section CARDINAL(CARDINAL)(b ) cases involving minor offences against civic propriety , which are directed against the security of persons , are investigated by the police authorities subordinated to ORG .

Section CARDINAL ) provides that minor offences are to be investigated either on the basis of an investigation carried out by the competent police authority or upon a notification submitted by an individual , an organisation or an authority .

Under section CARDINAL(CARDINAL ) the police authority should submit to the competent administrative organ a report on the outcome of its investigation of a case . Such a report ought to comprise , inter alia , a description of the relevant facts and specify which minor offence they are alleged to constitute .

Section CARDINAL reads as follows :

“ ( CARDINAL ) A citizen is accused of a minor offence as soon as the administrative authority has taken the first procedural step against him or her . Such a person shall be considered innocent until his or her guilt has been established by a final decision .

( CARDINAL ) A person accused of a minor offence has the right to comment on all facts that are imputed to him or her as well as on the evidence related to these facts , to present facts and evidence in his or her defence , make submissions and have recourse to remedies . He or she can not be forced to make statements or to plead guilty . ”

Section CARDINAL , as relevant , provides :

“ The operative part of a decision by which an accused of a minor offence is found guilty shall comprise also the description of the act including the place and time when the minor offence was committed , the finding of guilt , the type and amount of the sanction or , as the case may be , the decision not to impose a sanction ... ”

According to section LOC decisions on minor offences imposing a fine exceeding SKK CARDINAL , prohibiting the exercise of a certain activity for a period exceeding six months or confiscating an object having a value exceeding SKK CARDINAL can be reviewed by the courts . In such cases the provisions of Articles CARDINAL et seq . of ORG on administrative jurisdiction are applied .

Section CARDINAL(CARDINAL ) of PERSON no . PERSON on ORG , as amended , empowers district offices and local offices to carry out local administration falling within the competence of the ORG . The exercise of local administration by the aforesaid authorities is managed and controlled by the government .

Under section CARDINAL ) the head of a local office is appointed and dismissed by the head of a district office .

According to section CARDINAL(CARDINAL ) the head of a district office is appointed by the government on the proposal of ORG .

The officers of local and district offices are subordinated to the heads of those offices and their contracts of employment are governed , as in the case of other salaried employees , by the provisions of LAW .

In DATE this PERSON was repealed and replaced by PERSON no . ORG .

NORP Under the terms of LAW are bound , inter alia , by the decisions of the competent authorities that a criminal offence , a minor offence or another administrative offence punishable under special rules has been committed .

Article CARDINAL § CARDINAL of LAW defines a criminal offence as an act which is dangerous to society and whose characteristics are laid down in LAW . However , according to LAW , an act whose dangerousness is negligible is not a criminal offence even if it has its attributes .

According to LAW the degree of dangerousness of an act is determined , in particular , by the importance of the protected interest affected by that act , by the circumstances and the way in which the act was committed and its consequences as well as by the character of its perpetrator , the degree of his guilt and his motives .

The Criminal Code refers to repressive measures imposed for committing a criminal offence as penalties ( tresty ) .


Remainder inadmissible;Violation of Art. 3;Violations of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant was born in DATE and lived until his arrest in GPE .

On DATE a statue of GPE ’s last Tsar , PERSON , was blown up near the village of GPE in LOC of LOC .

On DATE the mass media reported that an organisation called “ ORG ” ( « Революционный Военный Совет DATE hereafter “ the ORG ” ) had claimed responsibility for the destruction of the monument . In TIME of DATE newspapers published a statement by the ORG , which claimed that its members were planning to perform “ a conditional destruction ” of the statue of another Russian Tsar , PERSON . According to the ORG , packets of plastic explosives had been planted inside the statue to protest against plans to bury ORG leader PERSON ’s body . The ORG had planned to explode the bombs at TIME but had eventually dropped its plans for fear of injuring innocent victims .

Responding to the ORG ’s warning , the police found CARDINAL explosive devices planted under PERSON the Great ’s monument near the FAC in GPE . On DATE , following the discovery of the explosive devices , ORG of ORG ( “ the ORG ” ) instituted criminal proceedings .

According to the applicant , since DATE he and his wife had been under surveillance by the ORG .

On DATE , at TIME , a group of armed ORG officers arrested the applicant in his office in ORG for the Fight against Organised Crime of the Ministry of Internal Affairs of GPE and brought him to ORG in GPE where he was questioned about his participation in the bombings on DATE and DATE . An investigator apprised the applicant of his rights as a defendant , including the right to remain silent , and insisted that the applicant should not testify . However , the applicant considered that his silence could be interpreted as “ a confession ” and decided to make a statement . He claimed that he had nothing to do with the bombings .

On DATE the applicant was charged with terrorism and unlawful production of weapons and explosive devices . His detention on remand was authorised and he was escorted to the FAC remand prison , run by ORG . The applicant ’s detention was subsequently extended on several occasions . His office and flat were searched and his personal belongings and money were seized .

On DATE the applicant was additionally charged with organising a criminal undertaking , abuse of position , unlawful possession of weapons , abetting forgery of documents and actions aimed at a violent overthrow of the ORG .

On DATE the pre - trial investigation was completed and the applicant and his lawyers were granted access to the case file . They finished examining the file on DATE .

On DATE a deputy prosecutor of GPE approved the bill of indictment and the case file was sent to ORG for trial .

On DATE ORG fixed the first hearing for DATE . That hearing was postponed until DATE because the presiding judge was involved in other unrelated proceedings . The following CARDINAL hearings were adjourned because a co - defendant , PERSON , failed to attend .

On DATE ORG remitted the case to ORG office for additional investigation . ORG held that the investigating authorities had violated the right of the applicant ’s co - defendant to present his defence . That decision became final on DATE , following an appeal to ORG of GPE .

On DATE ORG in GPE received the case file . On DATE the applicant was released on his own recognisance .

On DATE the new round of pre - trial investigation was completed . Between CARDINAL May and DATE the applicant and his lawyers studied the case file . On DATE ORG approved the bill of indictment and the applicant was committed to stand trial before ORG . According to the Government , the case file contained information classified as ORG secrets .

On DATE ORG , relying on Article CARDINAL of LAW and without giving any reasoning , decided to hold the trial in camera . ORG also dismissed the applicant ’s request for a jury trial because other defendants had objected to that request .

DATE and DATE no hearings were held because the presiding judge , PERSON , was involved in other unrelated proceedings .

On DATE ORG appointed a new presiding judge , PERSON , and CARDINAL lay judges , PERSON and PERSON , to sit in the applicant ’s case . According to the applicant , he unsuccessfully asked ORG to hear a PERSON , who allegedly could have testified that the applicant had not been aware of the ORG ’s activities .

At the hearing on DATE the applicant and his lawyer asked ORG to open the trial to the public . As shown in a copy of the court hearing record , submitted by the Government , the prosecutor objected , noting that the mass media had already misrepresented the facts in the case , that separate criminal proceedings were pending against another defendant and that the case file contained classified information . ORG dismissed the applicant ’s motion , holding as follows :

“ ... the court does not find grounds for accepting [ the motion ] because the decision to hold the trial in camera does not violate the requirements of LAW and because the examination of the case in camera will guarantee security to the victims , witnesses and other parties to the proceedings , taking into account the character of the charges . ”

No hearings were held DATE and DATE because the applicant ’s co - defendants and their lawyers were ill . The ORG noted that during that period the proceedings were also stayed for DATE because the applicant ’s lawyer was ill .

On DATE ORG found the applicant guilty as charged and sentenced him to TIME years’ imprisonment . According to the applicant , the judgment was not pronounced publicly . The Government submitted a videotape containing news reports by CARDINAL major TV companies , ORG , ORG and ORG , which had covered the story on the applicant ’s trial . The TV reports showed a crowded courtroom during the footage of the pronouncement of the judgment . It appears that a number of reporters and persons supporting the applicant and his co - defendants were present when the judgment was pronounced .

The applicant and his lawyers appealed against the conviction , arguing , in particular , that the trial had been held in camera although no evidence examined by ORG could have been considered to contain ORG secrets .

On an unspecified date ORG of GPE scheduled an appeal hearing for DATE . The applicant alleged that he had not been allowed to have a meeting with his lawyer before the appeal hearing and that he had only been notified of that hearing TIME before it had started . As shown in material submitted to ORG , on DATE the lawyer visited the applicant and notified him that the appeal hearing had been listed for CARDINAL DATE . On DATE the applicant ’s lawyer lodged with ORG an amendment to the statement of appeal .

On DATE ORG held the appeal hearing by way of video conference . The applicant was represented by CARDINAL counsels , Mr V. GPE and Mr PERSON . At the beginning of the appeal hearing the presiding judge read out a letter addressed to ORG by a co - defendant of the applicant , PERSON latter alleged that the applicant had threatened him and his family members and that PERSON V. ORG had represented Mr S. at the trial and , thus , should not have acted as the applicant ’s counsel . ORG dismissed PERSON V. ORG from the proceedings .

On DATE ORG delivered the judgment . It excluded the charge of forgery of documents because the statutory limitation period had expired , upheld the remaining conviction and reduced the applicant ’s sentence by DATE . In response to the applicant ’s complaint about the trial in camera , ORG noted only that the proceedings had been held in accordance with the requirements of Article CARDINAL of LAW .

The applicant alleged that from DATE of his arrest on DATE until his release on DATE he had been detained in appalling conditions in the FAC remand prison . On a number of occasions he was placed in a solitary confinement cell . ORG often humiliated and threatened him .

On DATE , at TIME , the applicant was taken to detention facility no . IZ-CARDINAL/CARDINAL ( commonly known as “ LOC ” ) in GPE . He remained in that facility until DATE when he was transferred to a correctional colony in LOC .

According to certificates issued on DATE by the director of the facility and produced by the ORG , from DATE the applicant was kept in cell no . CARDINAL which measured QUANTITY and accommodated CARDINAL inmates . After DATE he stayed in cells CARDINAL . CARDINAL and CARDINAL which measured QUANTITY . The cells had CARDINAL sleeping places and housed from CARDINAL to CARDINAL detainees . The Government further submitted that at all times the applicant had had an individual bunk and bedding .

The applicant did not dispute the cell measurements . He alleged , however , that he had shared cell no . CARDINAL with QUANTITY detainees and that bigger cells had housed CARDINAL inmates . At some point , for DATE the applicant shared a cell with CARDINAL other detainees . Given the lack of beds , inmates had slept in shifts . No bedding or blankets were provided .

The Government , relying on the information provided by the director of the facility , submitted that all cells were equipped with a lavatory pan , a tap , a sink and ventilation shaft . The lavatory pan was separated from the living area by a QUANTITY - high partition . Cell no . CARDINAL had a window which measured QUANTITY in length and QUANTITY in width . The bigger cells had CARDINAL windows with the same measurements . The windows had a casement . Inmates could request warders to open the casement to bring in fresh air . However , until DATE the windows were covered with metal shutters blocking access to natural light and air . The cells were equipped with lamps which functioned day and night . Inmates were allowed to take a shower once DATE for TIME . The cells were disinfected once DATE . A central - heating system was installed in the building . The Government further stated that the applicant was given food CARDINAL times a day “ in accordance with the established norms ” . Medical personnel at the facility checked the quality of the food CARDINAL times a day and made entries in registration logs . The applicant had CARDINAL TIME walk DATE .

According to the Government , detainees , including the applicant , were provided with medical assistance . They had regular medical check - ups , including X - ray examinations , blood tests , and so on . On his admission to the detention facility the applicant was examined by a doctor who noted that the applicant was healthy . On DATE the applicant complained to the prison doctor of a severe skin itch . The doctor diagnosed dermatitis and prescribed treatment . On DATE the applicant again complained of skin rash on the back , stomach and hips and was diagnosed with disseminated dermatitis and scabies . He was transferred to the venereal department of the facility hospital , where he was treated for DATE . The Government gave a detailed description of the treatment administered to the applicant , including the type of medicine , dose and frequency . They also furnished a copy of the applicant ’s medical record and medical certificates .

The applicant disagreed with the ORG ’s description and submitted that the sanitary conditions had been unsatisfactory . The cells were infested with insects but the administration did not provide any insecticide . The windows were covered with metal blinds which blocked access to natural light and air . The applicant pointed out that the Government did not dispute that the blinds had only been removed some time at DATE , that is after he had already been detained in that facility for DATE . It was impossible to take a shower as inmates were afforded TIME and CARDINAL men had to use CARDINAL shower head at the same time . Inmates had to wash and dry their laundry indoors , creating excessive humidity in the cells . Inmates were also allowed to smoke in the cells . The lavatory pan was separated from the living area by a partition affording no privacy to inmates . No toiletries were provided . The food was of poor quality and in scarce supply . The applicant further argued that he had not been adequately treated after he had been discovered to be suffering from skin diseases . His skin condition deteriorated so severely that he was transferred to the prison hospital . Following several complaints to various officials , the applicant started to receive treatment . The applicant further alleged that he had not been allowed to have meetings with his wife and child .

In DATE , DATE and DATE newspapers published a number of articles covering criminal proceedings against the applicant . He was called “ a criminal ” and “ a terrorist ” in the articles .

In DATE a press office of ORG held CARDINAL press conferences . Another press conference was held by a higher ranking ORG official , PERSON At the press conferences officials described the applicant as “ a criminal who had committed the offence ” . Mr PERSON also gave an interview to a TV company . During that interview PERSON called the applicant “ a perpetrator ” and “ a criminal ” .

DATE ( in force until DATE , “ the CCrP ” ) provided for public hearings in all cases “ unless the interests of the protection of ORG secrets required otherwise ” . A hearing in camera was also allowed on the basis of a reasoned court decision in cases concerning crimes committed by individuals under DATE , in cases concerning sexual criminal offences , and in other cases in order to prevent dissemination of information on the intimate spheres of lives of persons participating in such cases . Pronouncement of a judgment was to be made publicly in every case .

The LAW of DATE provides :

“ CARDINAL . Laws shall be officially published . Unpublished laws are not to be applied . No legal acts interfering with the rights , freedoms and obligations of a man and citizen may be applied unless they are officially published and publicly available ” .

“ CARDINAL . Everyone has the right to freely search , obtain , impart , generate and disseminate information by all lawful means . The list of information constituting ORG secrets shall be laid down in a federal law . ”

NORP On DATE the State Secrets Act ( Law no . CARDINAL - CARDINAL ) was enacted . Section CARDINAL provided as follows :

“ The following information may be classified as a ORG secret :

( CARDINAL ) information in the military field ...

( CARDINAL ) information in the field of the economy , science and engineering ...

( CARDINAL ) information in the field of foreign policy and trade :

( CARDINAL ) information in the field of intelligence and counter - intelligence services and investigating activities ... ”

Section CARDINAL described the procedure for classification of information as ORG secrets . ORG to classify information was delegated to the heads of ORG agencies . The LAW did not contain a list of such officials , which was to be approved by the President . The President was also to approve a List of information classified as ORG secrets , which was to be officially published .

On DATE ORG examined the compatibility of LAW with the LAW and found as follows :

“ CARDINAL ... The ORG may classify as ORG secrets information in the field of defence , economic and other activities , disclosure of which may undermine national defence and the security of the ORG . In this connection LAW of the LAW provides that the list of information constituting ORG secrets is to be adopted in the form of a federal law . The ORG may also determine provisions and measures for the protection of ORG secrets , including by means of establishing criminal liability for its disclosure and communication to a foreign ORG .

The requirements of LAW are fulfilled by LAW of DATE , which defines the concept of ORG secrets and indicates the information that may be classified as ORG secrets . ”

Section CARDINAL of ORG no . CARDINAL-FZ of DATE ) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by ORG of GPE . Section CARDINAL provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements . They should be provided with an individual sleeping place and given bedding , tableware and toiletries . Each inmate should have QUANTITY of personal space in his or her cell .

ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) visited GPE from DATE . The section of its ORG to ORG ( ORG ( DATE ) CARDINAL ) dealing with the conditions of detention in temporary holding facilities and remand establishments and the complaints procedure read as follows :

“ b. temporary holding facilities for criminal suspects ( ORG )

According to LAW establishing the internal rules of ORG temporary holding facilities for suspects and accused persons , the living space per person should be CARDINAL m² . It is also provided in these regulations that detained persons should be supplied with mattresses and bedding , soap , toilet paper , newspapers , games , food , etc . Further , the regulations make provision for outdoor exercise of TIME per day .

The actual conditions of detention in the ORG establishments visited in DATE varied considerably .

It should be stressed at the outset that the ORG was pleased to note the progress being made on an issue of great concern for the NORP penitentiary system : overcrowding .

When the ORG first visited GPE in DATE , overcrowding was identified as the most important and urgent challenge facing the prison system . At DATE visit , the delegation was informed that the remand prison population had decreased by CARDINAL since DATE . An example of that trend was GPE No CARDINAL in GPE , which had registered a PERCENT decrease in the remand prison population over DATE .

The ORG welcomes the measures taken in DATE by the NORP authorities to address the problem of overcrowding , including instructions issued by ORG , aimed at a more selective use of the preventive measure of remand in custody . Nevertheless , the information gathered by the ORG ’s delegation shows that much remains to be done . In particular , overcrowding is still rampant and regime activities are underdeveloped . In this respect , the ORG reiterates the recommendations made in its previous reports ( cf . paragraphs CARDINAL and CARDINAL of the report on the DATE visit , ORG ( CARDINAL ) CARDINAL ; paragraphs CARDINAL of the report on the DATE visit , ORG ( DATE ) CARDINAL ; paragraph CARDINAL of the report on the DATE visit , ORG ( DATE ) CARDINAL ) .

As during previous visits , many prisoners expressed scepticism about the operation of the complaints procedure . In particular , the view was expressed that it was not possible to complain in a confidential manner to an outside authority . In fact , all complaints , regardless of the addressee , were registered by staff in a special book which also contained references to the nature of the complaint . At Colony No CARDINAL , the supervising prosecutor indicated that , during his inspections , he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private “ because they know that all complaints usually pass through the colony ’s administration ” .

In the light of the above , the ORG reiterates its recommendation that the NORP authorities review the application of complaints procedures , with a view to ensuring that they are operating effectively . If necessary , the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis . ”


Violation of Art. 6-1;Violation of Art. 13+6-1

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

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

In DATE the heirs of the pre - nationalisation owners of an apartment , purchased by the first applicant 's husband from the ORG in DATE , brought an action for restitution against the latter , seeking a declaration that the DATE transaction had been null and void and that therefore the apartment should be restored to its original owners before the nationalisation .

On DATE the ORG granted the restitution claim .

On appeal , on DATE the ORG quashed ORG judgment and dismissed the claim of the pre - nationalisation owners ' heirs .

The heirs of the pre - nationalisation owners submitted a petition for review ( cassation ) .

By a final judgment of CARDINAL DATE ORG quashed ORG judgment and upheld ORG judgment . As a result , the title of the first applicant 's husband to the apartment at issue was declared null and void .

The number of hearings held in the course of the proceedings is not clear .

On DATE the first applicant 's husband died . The first applicant and her CARDINAL sons ( the second and third applicants ) were his heirs .

On DATE the first applicant , who had not been a party to the DATE proceedings , submitted a request for reopening , stating that in accordance with LAW she should have been cited as a party since she was the owner of CARDINAL of the apartment at issue and the judgment of CARDINAL DATE was binding on her .

The second and third applicants also became parties to these proceedings as they replaced their deceased father , being his heirs .

By a judgment of DATE ORG quashed the judgment of DATE , reopened the case and remitted it to another panel of ORG . The court found that , in violation of the relevant provisions of LAW , the first applicant had not taken part in the DATE proceedings .

CARDINAL hearings were held before ORG on CARDINAL DATE and CARDINAL on DATE , the first of them was adjourned upon the first applicant 's request .

By a judgment of CARDINAL DATE ORG quashed the judgment of DATE and remitted the case to ORG for new examination .

The first hearing before ORG was scheduled for DATE and was adjourned upon the first applicant 's request . The following hearing was held on DATE . CARDINAL more hearings were held - on DATE , DATE and DATE , the first of which was adjourned because the third applicant had not been properly summoned as his address had changed .

On DATE the ORG quashed ORG judgment of DATE and decided to refer the case for renewed examination by ORG .

On an unspecified date in DATE or in DATE the heirs of the pre - nationalisation owners appealed before ORG , which held a hearing on DATE . By judgment of CARDINAL DATE ORG quashed the lower court 's judgment , as the reopened case fell to be examined by ORG .

The Sofia City Court held a hearing on DATE .

On DATE the ORG found that the DATE transaction was null and void , having regard to the fact that the apartment at issue had largely exceeded the applicants ' family 's needs as determined by the relevant housing regulations .

On DATE the applicants appealed . The first hearing was scheduled for DATE but was adjourned upon the first applicant 's request . Another hearing was held on DATE .

By a judgment of CARDINAL DATE ORG upheld the previous court 's judgment .

Until DATE NORP law did not provide for any remedies in respect of length of civil proceedings .

A new procedure , “ complaint about delays ” , was introduced in DATE , by virtue of Article CARDINALa of the Code of Civil Procedure CARDINAL , in force until DATE . Pursuant to this procedure , a litigant aggrieved by the slow examination of the case could file a complaint before the president of the higher court . The latter had the power to issue mandatory instructions for faster processing of the case .