Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1+6-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses award - Convention proceedings

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

Following the entry into force of the PERSON of DATE on disclosing work for or service in the ORG 's security services or collaboration with them DATE by persons exercising public functions ( ustawa o ujawnieniu pracy lub służby w organach bezpieczeństwa państwa lub współpracy z nimi w latach CARDINAL - CARDINAL osób pełniących funkcje publiczne ) ( the “ DATE LAW ” ) the applicant , who was a member of the PERSON at the time , declared that he had not collaborated with the DATE secret services .

On DATE the Commissioner of ORG ( PERSON ) applied to ORG ( Sąd Apelacyjny ) to institute proceedings in the applicant 's case on the grounds that he had lied in his lustration declaration by denying his cooperation with the secret services . On DATE the applicant was notified that the lustration proceedings had been instituted .

On DATE and DATE the court held hearings in camera .

On DATE ORG , acting as the firstinstance lustration court , found that the applicant had been a deliberate and secret collaborator with ORG ( Slużba Bezpieczeństwa , “ the ORG ” ) and had therefore lied in his lustration declaration . The court relied , inter alia , on an expert opinion prepared by ORG ( PERSON i Chemii PERSON Państwa ) which had confirmed the authenticity of the applicant 's signature on a document in his file . The operative part of the judgment was served on the applicant on DATE . However , the reasoning was considered “ secret ” and , in accordance with LAW , could only be consulted in the secret registry of that court .

The applicant lodged an appeal . He argued that the ORG must have registered him as a secret collaborator without his knowledge or consent . The applicant maintained that his contacts with ORG ( LOC ) and an ORG agent whom he had known personally had been purely private and had never taken the form of conscious collaboration . The applicant also requested to call more witnesses , in particular the friend on whom he had allegedly reported to the ORG , and that an independent opinion be ordered from an expert who did not belong to an agency of ORG .

On DATE ORG , acting as the secondinstance lustration court , dismissed the applicant 's appeal . The court established , inter alia , that it was impossible to hear the ORG officer who had allegedly recruited the applicant as he had died . The court again informed the applicant that , due to the confidential nature of the case , the written reasoning for the judgment would not be served on him but could be consulted in the secret registry .

On DATE the applicant lodged a cassation appeal ( kasacja ) with ORG ( Sąd Najwyższy ) .

On DATE ORG quashed ORG judgment and remitted the case to the second - instance court . ORG found that the applicant 's request to call CARDINAL additional witnesses had been disregarded , which constituted a serious procedural shortcoming .

On DATE the Commissioner of ORG applied to ORG to request the Head of ORG to lift the confidentiality restrictions in respect of the documents in the case file .

On DATE the Head of ORG lifted the confidentiality restrictions in respect of the applicant 's personal record ( teczka osobowa ) that had been included in the case file .

On DATE ORG held a hearing at which it examined the witnesses called by the applicant .

On DATE ORG quashed the impugned judgment and remitted the case to the first - instance court .

Subsequently , the court requested ORG to submit additional documents to it . On DATE the ORG transmitted to the court personal information concerning some officers of the security services . On CARDINAL DATE the court received from ORG additional documents concerning the applicant , namely excerpts from the files of the former ORG ( LOC ) .

On DATE the court held a public hearing at which it heard the applicant . A subsequent hearing on DATE was only partly public as the court decided to examine witnesses in camera on the ground that they would testify on matters involving ORG secrets . The court further ordered the preparation of an expert opinion by ORG .

On DATE , on the Commissioner 's request , ORG submitted to the court more documents from the file of another secret collaborator , “ R ” , but which related to the applicant .

On DATE another hearing was held , in camera . On DATE ORG gave judgment , finding that the applicant had lied in his lustration declaration .

The applicant appealed , reiterating inter alia , that as a member of the national sports team , he had automatically been employed at ORG , a fact which should have been taken into consideration by the trial court .

On DATE ORG dismissed his appeal .

On DATE ORG dismissed a cassation appeal lodged by the applicant .

According to the domestic law in force at the material time , the judgment of ORG of DATE was considered final . Therefore , on that date the applicant lost his mandate as a Member of ORG . The applicant is prevented from being a candidate in elections and from holding other public functions for DATE .

On DATE LAW entered into force . The relevant provisions of this LAW , in the version in force at the material time , are the following :

Section CARDINAL reads , in so far as relevant :

“ CARDINAL . Persons exercising public functions within the meaning of this law are : the President of GPE , deputies , senators ... judges , prosecutors and barristers ... ”

Section CARDINAL provides the following definition of the term “ collaboration ” :

“ CARDINAL . Collaboration within the meaning of this law is intentional and secret collaboration with operational or investigative branches of the ORG 's security services as a secret informer or assistant in the process of gathering information .

Collaboration within the meaning of this law is not an action which was obligatory under the law in force at the material time . ... ”

Section CARDINAL concerns the obligation to submit a “ lustration declaration ” :

“ CARDINAL . Persons in the categories listed in section CARDINAL of this law shall submit a declaration concerning work for or service in the ORG 's security services or collaboration with these services DATE and DATE ( hereafter called ' the declaration ' ) . ”

Section CARDINAL provides :

“ Declarations shall be submitted by

CARDINAL ) NORP candidates for election as deputy or senator ... ”

Section CARDINAL requires such a declaration to be submitted also by those who at the date of entry into force of the DATE LAW are holding a public function .

Section CARDINAL et seq . concerns the office of the Commissioner of ORG . It reads , in so far as relevant :

“ CARDINAL . NORP The Commissioner of ORG ( PERSON ) , hereafter called ' the Commissioner ' , represents the public interest in lustration proceedings . ”

Section CARDINAL(d ) provides , in so far as relevant :

“ CARDINAL . NORP The duties of the Commissioner shall include in particular

i ) analysing the lustration declaration submitted to the court ;

ii ) collecting information necessary for a correct assessment of the declaration ;

iii ) lodging an application with the court with a view to initiating lustration proceedings ;

NORP In carrying out his duties enumerated in points CARDINAL and CARDINAL above , the Commissioner may require to be sent or shown the relevant case files , documents and written explanations , and if necessary may hear witnesses , order expert opinions or conduct searches ; in this respect , and as regards the duties described in section ORG ) , the provisions of LAW concerning the prosecutor shall likewise apply to the Commissioner . ”

Section CARDINAL(e ) provides :

“ The Commissioner , his deputies and the authorised employees of his office shall have full access to documentation and other information sources , regardless of the form in which they were recorded , provided that they were created before DATE by

NORP The Minister of Defence , the Minister of the Interior , the Minister of Justice , the Minister of ORG , or by the services under their authority ; or

NORP The Head of ORG . ”

Sections DATE and CARDINAL refer to LAW . Section CARDINAL reads as follows :

“ Matters not covered by this law and relating to lustration proceedings , including the appeal and cassation phase , shall be governed by LAW . ”

The amendment to section DATE , which entered into force on DATE , provides that the proceedings can also be conducted in camera on an application by the person subject to lustration . This provision replaced the one contained in section ORG ) , which provided that the court could decide to conduct the proceedings in camera of its own motion or on an application by a party .

Section CARDINAL provides :

“ The provisions of LAW relating to the accused shall apply to the person subject to lustration ( hereafter called ' the subject ' ) . ”

Section CARDINAL provides for service of the judgment :

“ CARDINAL . The court 's judgment , together with the written reasons , shall be served on the parties to the proceedings without delay .... ”

Section CARDINAL , amended with effect from DATE , provides :

“ A final judgment finding that the declaration submitted by the subject was untrue shall be published immediately in LAW ( ORG ) if

CARDINAL ) no cassation appeal has been lodged within the prescribed time - limit ; or

CARDINAL ) NORP the cassation appeal has been left unexamined ; or

CARDINAL ) NORP the cassation appeal has been dismissed . ”

Section CARDINAL lists the consequences of the judgment for a person subject to lustration who has submitted an untrue declaration . It reads , in so far as relevant :

“ CARDINAL . A final judgment finding that the subject has submitted an untrue declaration shall result in the loss of the moral qualifications necessary for exercising public functions , described according to the relevant laws as : unblemished character , immaculate reputation , irreproachable reputation , good civic reputation , or respectful of fundamental values . After DATE the judgment shall be considered to be of no legal effect .

A final judgment finding that the subject has submitted an untrue declaration shall entail dismissal from the functions exercised by that person if the moral qualifications mentioned above are necessary for exercising it .

A final judgment finding that the subject has submitted an untrue declaration shall deprive that person of the right to stand for election as President for a period of DATE . ”

On DATE sub - section CARDINAL was added , which provides :

“ The consequences enumerated in sub - sections CARDINAL above shall take place if

Article CARDINAL § CARDINAL , which concerns delivery of a judgment , provides :

“ If the case has been heard in camera because of the substantial interests of the ORG , instead of reasons notice shall be served to the effect that the reasons have actually been prepared . ”

Article CARDINAL , which deals with access to the case file , in so far relevant provides as follows :

“ CARDINAL . The court files pertaining to a case shall be made available to the parties , their defence counsels , legal representatives and guardians who shall have possibility to obtain copies from them . Other persons may access the case file provided that the president of the court agrees to it .

Upon a request from the accused or his defence counsel , photocopies of the documents of the case shall be provided at their expense .

NORP The president of the court may on justifiable grounds , order certified copies to be made from the files of the case .

NORP If there is a danger of revealing a state secret , inspection of files , making certified copies and photocopies shall be done under conditions imposed by the president of the court or by the court . Certified copies and photocopies shall not be released unless provided otherwise by law .... ”

Section CARDINAL ( CARDINAL ) of the DATE ORG ( Ustawa o ochronie tajemnicy państwowej i służbowej ) , which was in force until DATE , read as follows :

“ A ORG secret is information which , if divulged to an unauthorised person , might put at risk the ORG 's defence , security or other interest , and concerns in particular :

CARDINAL ) NORP organisation of the services responsible for the protection of security and public order , their equipment and working methods , and the data enabling the identification of their officers and persons collaborating with the security services ... ”

Section CARDINAL of the DATE ORG ( Ustawa o ochronie informacji niejawnych ) , in its relevant part , provided as follows :

“ CARDINAL . Persons referred to in section CARDINAL ( CARDINAL ) [ those authorised to sign the document and to assign a confidentiality rating ] , or their legal successors in relation to documents containing information classified as a ORG secret , created before DATE , shall within DATE from the date of enactment of this Act , review these documents with the purpose of adjusting their current security classification to the classifications provided by this LAW . Until then , these documents shall be considered classified under the provisions of paragraph CARDINAL unless otherwise provided by law ... ”

Appendix No . CARDINAL to the LAW provided , in so far as relevant :

“ I. Information that can be classified as « top secret ORG :

NORP information concerning documents that make it impossible to establish data identifying officers , soldiers or employees of ORG bodies , services and institutions authorised to engage in operational activities or on the resources that they use in their operational activities . ”

Section CARDINAL ( CARDINAL ) of the DATE Act concerned organisation of the secret registry . It provided in so far as relevant :

“ Documents marked “ top secret ” and “ secret ” ( ściśle tajne i tajne ) can be released from the secret registry only if the recipient can secure the protection of those documents from unauthorised disclosure . In case of doubts regarding the conditions of protection , the document can be made available only in the secret registry . ”

The following are extracts from ORG of ORG DATE ) on measures to dismantle the heritage of former communist totalitarian systems :

“ CARDINAL . The ORG welcomes the opening of secret service files for public examination in some former NORP totalitarian countries . It advises all countries concerned to enable the persons affected to examine , upon their request , the files kept on them by the former secret services ...

Concerning the treatment of persons who did not commit any crimes that can be prosecuted in accordance with paragraph CARDINAL , but who nevertheless held high positions in the former totalitarian communist regimes and supported them , the ORG notes that some states have found it necessary to introduce administrative measures , such as lustration or decommunisation laws . The aim of these measures is to exclude persons from exercising governmental power if they can not be trusted to exercise it in compliance with democratic principles , as they have shown no commitment to or belief in them in the past and have no interest or motivation to make the transition to them now .

The ORG stresses that , in general , these measures can be compatible with a democratic state under the rule of law if several criteria are met . Firstly , guilt , being individual , rather than collective , must be proven in each individual case - this emphasises the need for an individual , and not collective , application of lustration laws . Secondly , the right of defence , the presumption of innocence until proven guilty , and the right to appeal to a court of law must be guaranteed . Revenge may never be a goal of such measures , nor should political or social misuse of the resulting lustration process be allowed . The aim of lustration is not to punish people presumed guilty - this is the task of prosecutors using criminal law - but to protect the newly emerged democracy .

The ORG thus suggests that it be ensured that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law , and focus on threats to fundamental human rights and the democratisation process . Please see the " Guidelines to ensure that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law " as a reference text . ”


The applicant , PERSON PERSON , is a retired verger of the NORP - Lutheran parish of ORG . According to the applicant his family have for CARDINAL generations provided a verger to the parish .

Although he had performed duties for the parish since DATE , it was only on DATE that a decision ( hereinafter , “ the DATE decision ” ) was taken by ORG ( kirkkovaltuusto , kyrkofullmäktige ) to establish officially the post of verger and to confirm the applicant as the verger ( see paragraph CARDINAL below ) .

In creating the post , ORG noted that ORG ( kirkkohallintokunta ) had proposed that the verger be paid PERCENT of the salary on the Grade CARDINAL salary scale for employees of ORG . However ORG ultimately decided that the verger ’s post was to be considered as the main occupation ( päätoimi ) of the post holder and the holder remunerated according to Grade ACARDINAL of the salary scale . In salary terms , this in fact amounted to the same level of remuneration as suggested by ORG . However , there was no indication as to whether it was a full - time or part - time post . ORG further decided that Mr GPE , as the post holder , should not be remunerated for the performance of any extra duties and that he should be authorised , as was proposed by ORG , to manage a funeral home .

As from DATE a new collective agreement for ORG employees came into force . Under that agreement a new salary scheme was introduced under which salaries were fixed in respect of the various posts and the terminology was clarified so that a main occupation of a ORG employee could henceforth either be full - time or part - time . The new salary system was applied in DATE to ORG employees of the parish of ORG .

In a decision taken on DATE ( hereinafter “ the DATE decision ” ) in the context of the application of the new collective agreement arrangements to its employees , ORG ( ( kirkkoneuvosto , kyrkorådet ) noted that the decision of ORG of DATE creating the post of verger ( see paragraph CARDINAL above ) did not specify whether that post was full - time or part - time . The view was taken that since ORG at the relevant time had proposed that PERSON GPE be granted permission to manage a funeral home it was probable that his post was a part - time main occupation .

ORG confirmed that the verger ’s TIME were thirtyfive DATE and that his salary was PERCENT of that payable to a full - time verger on the revised salary scales . The applicant ’s salary however remained the same as before . Further , ORG authorised Mr GPE to manage a funeral home alongside his duties as verger .

From the moment of taking up his employment as verger , the applicant carried out his duties on the understanding that his post was in fact a full - time one . He was never informed of the DATE decision and its implications were not apparent to him since he continued to receive the same salary and to work TIME per week .

It was only in DATE when he enquired about his pension rights that he reached the conclusion that ORG had in DATE considered his post to be part - time and that some of his salary - related entitlements including pension rights were as a consequence lower than those of a full - time post holder .

On DATE the applicant appealed against the DATE decision to ORG claiming arrears of salary owed to him as a full - time parish verger and other lost benefits .

In its decision of CARDINAL DATE ORG noted that , according to the decision of ORG of DATE ( see paragraph CARDINAL above ) , PERSON PERSON ’s post was a part - time main occupation . ORG considered that it was not legally obliged to grant the applicant any pecuniary benefits in addition to those he already received on the basis of the DATE decision of ORG ( see paragraph CARDINAL above ) . It nevertheless decided on an ex gratia basis that the applicant should be paid the difference between his part - time salary and a full - time salary as from DATE . It also increased his pension benefits and awarded him a compensatory lump sum .

In the meantime , on DATE , the applicant had also lodged an appeal with ORG ( tuomiokapituli , domkapitlet ) of the Helsinki Diocese ( hiippakunta , stift ) , complaining that ORG DATE decision amounted to a unilateral change by ORG to the nature of his post and had prejudiced him financially . Under section CARDINAL of the Church Act DATE ( kirkkolaki , kyrkolag CARDINAL ) , the Cathedral Chapter acted as “ a court of first instance ” in cases concerning salary claims of parish officials .

On DATE , following ORG decision of DATE , the applicant lodged a supplementary appeal with ORG , complaining about the low level of the benefits granted to him in that decision and claiming , inter alia , compensation .

The Cathedral Chapter joined the CARDINAL appeals . In its decision of DATE it stated that the applicant had locus standi and that the appeal could not be considered as time - barred since the applicant had not been notified of the DATE decision as required by NORP law ( see paragraph CARDINAL above ) . As regards the merits , ORG noted that , in its opinion , the DATE decision of ORG was primarily a decision on TIME for the verger ’s post . It had not been possible to ascertain from the documents produced in the case whether the post in question was created in DATE as a full - time or part - time main occupation . In any event , ORG lacked the competence to convert a full - time post into a part - time one since ORG was solely competent in DATE to take such a decision . On the other hand , ORG specification of the working TIME for the post had been the basis for the revised method of calculating salaries under the new collective agreement arrangements .

On these grounds the Cathedral Chapter found that the DATE decision had not altered the applicant ’s post from a full - time to a part - time one . In view of the fact that the parish had sole competence to decide on TIME for a post , ORG dismissed the verger ’s appeal in that regard . It further considered that it was not competent to examine his claims for compensation and dismissed this part of the appeal without examining the merits .

On DATE the applicant appealed against the Cathedral Chapter ’s decision to ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) , claiming that the decisions of ORG , ORG and ORG should be repealed and that he should be compensated for the financial loss suffered since DATE through not being recognised as a full - time verger .

At ORG request , ORG submitted on CARDINAL DATE an opinion in which it stated that the appeal should be rejected . The applicant filed his comments on the opinion on CARDINAL DATE .

In a decision of CARDINAL DATE ORG , without having held an oral hearing , upheld the Cathedral Chapter ’s decision as regards the effects of the DATE decision , finding no reason to alter it . On the other hand , ORG considered that ORG did have jurisdiction to examine the dispute regarding his compensation claim and therefore referred the case back for fresh examination .

The Cathedral Chapter ’s decision of DATE was appended to the decision of ORG but the latter decision did not refer to ORG opinion or to the applicant ’s comments thereon .

In a fresh appeal of CARDINAL DATE to ORG the applicant maintained his previous complaints in respect of both the DATE decision and the level of compensation set by the earlier decision of ORG . Moreover , he maintained that in the event of ORG not being satisfied that his post had been full - time since its creation , he requested LAW to hold an oral hearing and hear witnesses on the matter .

In this connection , the applicant submitted a written statement by CARDINAL former members of ORG who had participated in the creation of his post in DATE . In their view , ORG had been aware of the fact that the anticipated number of TIME clearly sufficed for the purposes of a full - time post and it had therefore rejected a proposal to establish a part - time post .

The applicant also submitted a written statement of his trade union to the effect that the parish had never contested the fact that he had worked TIME per week , although he had only been paid a salary based on TIME . The fact that he had ( in DATE ) been granted permission to have a secondary occupation ( to manage a funeral home ) had not entitled the parish to amend his employment contract unilaterally .

NORP In its decision of CARDINAL DATE the Cathedral Chapter took account of the various written statements submitted in support of the applicant ’s claims . Having regard to the evidence adduced and to the fact that it had not been possible to submit further evidence concerning his working TIME especially as the applicant had a secondary occupation closely related to his duties as verger , ORG upheld the decision of ORG of DATE and rejected his other claims for compensation for lack of sufficient evidence . The applicant ’s request for an oral hearing was not mentioned in the decision .

NORP The applicant appealed to ORG against the decision of ORG , claiming that the compensation had been fixed at too low a level .

On DATE the Cathedral Chapter , at the request of ORG , submitted a further opinion to the court in which it stated that the applicant ’s appeal should be rejected . The applicant filed his comments on the opinion on DATE .

On DATE ORG , without holding an oral hearing , upheld the Cathedral Chapter ’s decision of CARDINAL DATE , finding no reason to alter it . The decision referred to section CARDINALb of the Church Act DATE as well as to the Regulations on Posts and Salaries of the parish as adopted by ORG in DATE . According to section CARDINALb the terms of employment for posts within ORG were to be specified in regulations adopted by ORG ( kirkolliskokous , kyrko - mötet ) , to the extent that they were not indicated in already existing regulations and collective agreements .

The decision of the Cathedral Chapter of CARDINAL DATE was appended to the decision of ORG but the latter decision did not refer to ORG opinion or to the applicant ’s comments thereon .

Under the Church Act DATE ( kirkkolaki , kyrkolag CARDINAL/CARDINAL ) a decision by ORG could be appealed against to ORG by any person claiming that the decision entailed a violation of his or her private rights ( section CARDINAL ( CARDINAL ) as in force at the relevant time ) .

The Cathedral Chapter is both an administrative and a judicial body of the LOC ( section CARDINAL ) . At the relevant time its members included the ORG , as the chair , CARDINAL ORG assessors and CARDINAL legal assessor . CARDINAL of the ORG assessors was ORG ( tuomiokirkko - seurakunnan tuomiorovasti , domkyrkoförsamlingens domprost ) and also Vice - Chairman of ORG . The CARDINAL others were elected by the priests and curates of the LOC from among its permanent priests . The ORG assessors sat for DATE . As long as they were priests in the same parish or parish confederation they could not sit on FAC CARDINAL periods . The legal assessor was a lawyer appointed by ORG ( sections DATE ) .

The statutory rules on the disqualification of judges extended to the members of ORG ( section CARDINAL ( CARDINAL ) ) . Before taking up their duties , the members had to swear a judicial oath ( section CARDINAL ) .

In determining cases brought before it , the Cathedral Chapter was to base itself on the case file . If it was deemed necessary to hear witnesses , evidence was to be taken by an ordinary court of first instance on request by ORG submitted via ORG ( section CARDINAL ) .

On DATE the CARDINAL Act was replaced by the DATE LAW ( kirkkolaki , kyrkolag CARDINAL/CARDINAL ) which expressly provides that ORG may hold oral hearings ( LAW , sections CARDINAL and CARDINAL ) .

CARDINALhallintolainkäyttölaki , förvaltningsprocesslag DATE “ the DATE LAW , which entered into force on DATE ) ORG must hold an oral hearing if a private party has requested this , but may nevertheless refuse this in certain circumstances ( section CARDINAL ( CARDINAL ) ) .

The instrument of ratification of the Convention deposited by ORG on DATE contained the following reservation , made in accordance with LAW , in respect of the right to a public hearing guaranteed by LAW :

“ For the time being , GPE can not guarantee a right to an oral hearing insofar as the current NORP laws do not provide such a right . This applies to :

proceedings before ORG , ORG , ORG and ORG in accordance with LAW DATE , as well as LAW , of LAW , and LAW , as well as LAW DATE , of LAW ;

proceedings before ORG and ORG in accordance with LAW of ORG CARDINAL of ORG ;

proceedings , which are held before ORG as ORG , in accordance with LAW ;

proceedings before ORG in accordance with LAW on ORG .

The provisions of the NORP laws referred to above are attached to this reservation as a separate annex . ”

According to the annex to the above reservation , the relevant part of section CARDINAL of ORG reads :

“ In investigating a case , ORG may ... hold oral hearings ... In an oral hearing the parties , witnesses and experts may be heard , and other evidence may be taken .

ORG may decide that oral hearings ... be conducted by CARDINAL or more members of ORG together with the referendary . ”

On DATE , following the entry into force of the CARDINAL Act , GPE withdrew the above reservation , inter alia , in respect of proceedings before ORG concerning decisions taken after DATE .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova

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

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

On DATE the applicant lodged an action with ORG ( okresní soud ) against a certain PERSON , seeking the payment of CZK CARDINAL,CARDINAL ( EUR CARDINAL,CARDINAL ) .

It appears that the proceedings are still pending .

The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the ORG ’s decision in the case of PERSON v. GPE , no . MONEY ( dec . ) , § § CARDINAL - CARDINAL , DATE ) .


Remainder inadmissible;Violation of Art. 8;Non-pecuniary damage - award

Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre

The applicant was born in DATE . His daughter and son were born in DATE and DATE respectively .

The applicant and the mother of the above - mentioned girl and boy ( “ the mother ” ) , who were the only children she and the applicant had together , separated in DATE . At that time the mother moved out of the house in which they had lived together . The children stayed with the applicant .

On DATE the applicant lodged a claim for custody and , as alternative , a request for contact arrangements . He also requested that an interim decision be issued pending final determination of the case .

On DATE the mother took the children to live with her .

Further to a request by the court , ORG submitted a report on DATE . On DATE the court held a hearing and issued an interim decision granting provisional custody to the applicant . It would appear that this decision was not enforced at that time and the children did therefore not move to the applicant .

On DATE , at the second hearing in the case , the mother objected to the interim decision and requested the resumption of the previous state of affairs . Since it was established that the mother had not received the court decision , the court revoked it .

On DATE the parties entered into an agreement before ORG concerning the applicant ’s contact with the children . According to the agreement , the children were to spend DATE TIME and every other DATE with the applicant .

On DATE , the mother lodged a counterclaim for custody and a request for an interim decision granting her provisional custody . On DATE , as well as on DATE , the applicant also requested the court to issue an interim decision .

Further to the court ’s request , ORG submitted an additional report on DATE .

The mother prevented the applicant from having contact with the children during DATE of DATE , by taking the children to her relatives . In this connection , the applicant lodged a criminal complaint of abduction of the children , which was dismissed as of minor importance on DATE .

A hearing was held on DATE . Subsequently , on DATE , the court requested a report from an expert psychologist .

On DATE the applicant made written submissions , in which he mentioned that since the last hearing the mother had prevented him from having contact with the children on DATE , DATE , and DATE of DATE , but nevertheless requested the court to suspend the proceedings , as he and the mother might reach a settlement . On DATE , however , he complained that the mother had not allowed him to see the children during the GPE and DATE and the proceedings therefore continued .

On DATE the expert submitted his report , which was forwarded to the parties for comments . On DATE the applicant informed the court that he had spent the holiday with the children CARDINAL and DATE and requested that that an interim decision be issued .

On DATE the court held a brief hearing , which was adjourned for further evidence to be obtained by the court .

In the meantime , on DATE , the court ordered the applicant to pay the expert ’s fees . He appealed against this decision and on CARDINAL DATE requested the court to send the file to the higher court for consideration of his appeal . At the same time he again requested that an interim decision be issued .

On DATE the case was taken up by a new judge specialising in family matters . The applicant again urged the judge to issue an interim decision .

NORP The court scheduled a hearing for DATE , which was adjourned at the request of the applicant , stating that the parties would again try to reach a settlement . However , on DATE the applicant again requested the court to issue an interim decision .

On DATE the court held a hearing at which the applicant complained about having only very poor contact with his children , which was brought to the attention of the welfare office . The applicant further explained that after the agreement had been signed on DATE he had had contact with the children during the subsequent DATE . After that , however , the contact was obstructed , partly also because the agreement did not include arrangements for contact during holidays . The applicant then confirmed that the children had spent DATE of DATE with him , but that he had been prevented from spending all the CARDINAL holidays in DATE with them . The next hearing was scheduled for DATE . However , after the applicant informed the court that he was again unable to have contact with the children , the court changed the date of the next hearing to CARDINAL DATE .

At the hearing of DATE the applicant stated that he had not had contact with his children on a regular basis since DATE . The court , however , noted that the applicant had had contact with the children on DATE , and of its own motion issued an interim decision granting provisional custody to the mother and setting out new provisional contact arrangements allowing the applicant to have contact TIME per week . The applicant objected .

On DATE the judge held a meeting with the children .

At the hearing of DATE the judge attempted to reach a friendly settlement , but to no avail . On DATE the court upheld in part the applicant ’s objection to the interim decision of DATE and issued a new interim decision setting out provisional contact arrangements , so that the applicant was allowed to spend with the children every DATE TIME , DATE , and part of DATE . The applicant was to pick up the children from school and take them to the mother ’s home after the visit . The decision also included a provision that failure to comply with the contact arrangements would result in a fine of CARDINAL NORP tolars ( SIT ) .

The parties appealed . Consequently , the court sent the file to the higher court and requested priority treatment .

On DATE ORG dismissed appeals against the interim decision of DATE and an appeal by the applicant against the decision of DATE concerning expert fees . The applicant lodged an appeal on points of law which was declared inadmissible by ORG . The applicant appealed against this decision .

After DATE the mother started to prevent the applicant ’s contact with the children . On DATE she also lodged a criminal complaint against the applicant for neglect and maltreatment of a minor . The criminal complaints related to an incident when the applicant allowed his daughter to read a book by PERSON , CARDINAL Strokes of the Brush Before Bed . The public prosecutor requested the court to undertake certain investigating measures , such as questioning the applicant . The criminal complaint was subsequently dismissed as unfounded on DATE . The public prosecutor noted that the daughter , who read only a few pages , was not pushed by the applicant to read the book , which was intended for teenagers .

On DATE the applicant attempted to pick up the children from their mother ’s home to take them for the scheduled holiday . As the mother refused to comply with the interim decision of DATE , the court issued a decision on DATE , stating that the applicant ’s contact with the children during the holiday should be secured by removing the children from whoever they were with on DATE . Further to the delivery of this decision the enforcement was attempted . It failed , however , as the mother informed the welfare officer that she had lodged a criminal complaint against the applicant ( see paragraphs CARDINAL above ) . Consequently , the welfare officer advised the enforcing officer to discontinue the enforcement ( see paragraph DATE , section CARDINALf , above ) .

On DATE the court made inquiries about the allegations made against the applicant to the relevant prosecutor ’s office , the police and the welfare office .

Due to the pending appeal ( see paragraph CARDINAL above ) the case was sent to the higher court on DATE .

On DATE the mother objected to the enforcement decision of CARDINAL DATE . Her objection was dismissed on DATE .

On DATE the mother requested that the provisional contact arrangements be modified so that the applicant could only have very limited contact with the children , under the supervision of the welfare office .

On DATE ORG rejected the applicant ’s appeal against the first - instance decision dismissing his appeal on points of law .

On DATE and CARDINAL , DATE and DATE the applicant lodged requests for fines to be imposed for non - compliance by the mother with the contact arrangements of DATE , amounting to SIT CARDINAL in total . He also urged the court to issue a new interim decision .

A hearing was held on DATE . According to the transcript of the hearing , the applicant told the judge that he had not had any contact with the children since DATE . The mother said that the applicant had , during DATE to DATE , allowed the daughter to read an inappropriate book , which the applicant denied , saying that the daughter had taken the book as it had an interesting cover page but had not read it ( see paragraph CARDINAL above ) . The applicant was then asked by the judge if he would agree with the mother ’s proposal to have contact supervised by ORG . He agreed at first . However , his representative then stated that the applicant believed that it would be unpleasant for the children to have contact with him under supervision . The judge then appointed an expert in psychology to prepare a new report and stated that she would not issue any decisions imposing fines , due to new circumstances which required the preparation of a new expert report . She further stated that the imposition of monetary fines would be a less severe sanction than removal of the children by force , which had already failed , and would not be reasonable in view of the fact that the applicant was not paying the full amount of maintenance .

On DATE a new expert psychologist was appointed .

On DATE the applicant lodged a constitutional appeal , complaining that the judge had arbitrarily refused to decide on his enforcement requests , depriving him of the opportunity to appeal . On DATE ORG , relying on section CARDINAL of LAW , dismissed the appeal , finding that it did not concern a specific decision of a State body , and noted that “ there was no right to lodge a constitutional appeal directly against the act or omission of the ORG authorities . ”

On DATE the applicant requested that the provisional contact arrangements be modified and on DATE he lodged a new request for an interim decision .

NORP On DATE the judge held a meeting with the expert and then decided also to appoint a psychiatrist to examine the parents .

On DATE the applicant requested the judge to step down . The request was rejected by the president of the court on DATE .

On DATE the psychiatrist ’s report was sent to the parties for comments .

In the period DATE and DATE the applicant lodged further CARDINAL requests for fines , in a total sum of SIT CARDINAL , to be imposed on the mother for her non - compliance with the contact arrangements in the period between DATE and DATE .

At the hearing of DATE the court questioned the experts . The court noted that according to the expert reports both parents were suitable for parenting . It also issued a new interim decision modifying the provisional contact arrangements so that the applicant had a right to spend every other DATE with the children ( from DATE ) and every DATE TIME and a part of upcoming holiday . The court prohibited the mother from picking up the children from school on DATE that they were supposed to be with the applicant . The representative of the applicant confirmed at the subsequent hearings that these contact arrangements were being complied with by the mother .

The mother was ordered to pay the expert ’s fees . She appealed , unsuccessfully .

At the hearing of DATE a conditional settlement was prepared at the proposal of the applicant . At the next hearing , on CARDINAL DATE , the applicant ’s representative confirmed that the applicant and the children had had regular contact , in line with the latest contact arrangements . The parties agreed that they would terminate the pending criminal proceedings they had instituted against each other .

On DATE the court held a hearing at which the applicant again confirmed that contact arrangements were being complied with .

On DATE the expert report was supplemented at the request of the court .

DATE . On DATE the parties reached an agreement on custody and contact rights . The agreement provided that the mother had sole custody of the children and set out contact arrangements for the applicant and the children who were to spend every DATE TIME , every other DATE ( from DATE ) and CARDINAL the school holidays together .

In the course of the proceedings the applicant , in addition to the criminal complaint mentioned above ( see paragraph CARDINAL above ) , lodged a number of further criminal complaints against the mother concerning criminal offences of , inter alia , child abduction and sexual violence against a minor . The mother also lodged CARDINAL criminal complaints against the applicant . CARDINAL of them concerned abduction , the other concerned alleged neglect and maltreatment of a minor ( see paragraph CARDINAL above ) . All criminal complaints were ultimately dismissed by the public prosecutor .

As regards the relevant provisions of domestic family law see PERSON and PERSON , no . CARDINAL/CARDINAL and GPE , § § DATE , DATE . In addition , the following legislation is relevant to the present case .

Article CARDINAL of LAW ( PERSON , ORG no . CARDINAL with amendments ) provides , in so far as relevant , as follows :

“ Everyone has the right to have any decision regarding his rights , duties and any charges brought against him made without undue delay by an independent , impartial court constituted by law .

LAW ( Zakon o pravdnem postopku , Official Gazette no . CARDINAL with amendments ) provided , in so far as relevant :

“ ( CARDINAL ) An appeal is allowed against any first - instance decision , unless a law provides otherwise .

“ ( CARDINAL ) NORP In marital disputes and disputes concerning relations between parents and children the courts shall of their own motion take all steps necessary to safeguard the rights and interests of the children ...

( CARDINAL ) In disputes concerning the custody and maintenance of children and in disputes concerning contacts between children and parents or other persons , the panel is not bound by the parties’ requests . Where so provided by the law , the panel may take decisions even when no request has been made .

( CARDINAL ) For the protection of the interests of the persons mentioned in the first paragraph , the panel may investigate matters not presented by the parties , and collect information necessary for a decision ... ”

“ ( CARDINAL ) During proceedings concerning marital disputes and disputes relating to relationships between parents and children , the court may , at the request of CARDINAL of the parties or of its own motion , issue interim decisions concerning child custody and maintenance as well as interim decisions withdrawing or restricting contact rights and determining contact arrangements .

The Execution of Judgments and Insurance of Claims Act ( Zakon o izvršbi in zavarovanju , ORG no . DATE with amendments ) provided , as far as relevant :

“ In enforcement proceedings provisions of LAW should apply , unless a law provides otherwise . ”

“ ( CARDINAL ) If a person under obligation ( dolžnik ) [ “ the defaulter ” ] is obliged to do something specified under the enforcement provision of a decision , and which can not be done by anyone else , the court shall issue a decision setting a deadline for the fulfilment of the obligation .

( CARDINAL ) In an enforcement decision , the court shall set out a fine for the eventuality that the defaulter does not fulfil the obligation within the time - limit set by the court . ....

( CARDINAL ) If the defaulter does not fulfil the obligation , the court shall order ex officio execution based on the decision imposing a fine . At the same time , the court shall issue a new decision setting a new deadline for the fulfilment of the obligation , and a new fine , higher than the CARDINAL previously imposed , in the event that the defaulter fails to comply again .

( CARDINAL ) When determining the fine the court should take into account the importance of the act that should be performed by the defaulter and other circumstance of the case . ”

( CARDINAL ) The court is not bound by the requested means of enforcement .

( CARDINAL ) When it is necessary for protection of the child ’s interests the court can change the means of enforcement provided for in the enforcement order . ”

“ ( CARDINAL ) A court ’s decision concerning the right to have contact with a child shall be enforced in accordance with first , second , third and fifth paragraph of section CARDINAL of this Act .

( CARDINAL ) NORP In exceptional and particularly justified cases , when this would be necessary for the protection of the child ’s interests and the enforcement mentioned in the preceding paragraph was unsuccessful , the court may allow the enforcement as prescribed in section CARDINALe of this LAW [ direct removal ] .

( CARDINAL ) Provisions of sections ORG , ORG and ORG [ which concern the enforcement of custody decisions ] should be used mutatis mutandis in these proceedings .

( CARDINAL ) NORP If , during the enforcement under the second paragraph , the enforcing officer observes that the child opposes the contact ... and finds that the enforcement by means of removing the child would not be in the child ’s interest , he or she can discontinue the procedure and inform the court about the reasons .

( CARDINAL ) If the court establishes that the child opposes the contact ... , and finds that the enforcement by means of removal of the child would not be in the child ’s interest ... it can , at the request of the enforcing officer ... or the person against whom the enforcement is carried out , suspend the enforcement for DATE at most .

( CARDINAL ) The court can suspend the enforcement at the request of the welfare office or the person against whom the enforcement is conducted also when the proceedings for a modification of contact arrangements are pending or if the enforcement would be against the child ’s interests . ”

“ ( CARDINAL ) The court shall issue an interim decision in order to protect a non - pecuniary claim , if the claimant shows that he the claim is likely to be established ... ”

( CARDINAL ) At the request of the debtor , the court should discontinue [ enforcement ] proceedings and invalidate the actions already taken if the circumstances on the basis of which the interim decision had been adopted have changed so that the interim decision is no longer needed . ”

Finally , section CARDINAL of LAW ( Zakon o ustavnem sodišču , Official Gazette no . DATE with amendments ) , provides , as far as relevant :

“ ( CARDINAL ) Due to a violation of human rights or fundamental freedoms , a constitutional complaint may , under the conditions determined by this LAW , be lodged against individual acts by which state authorities , local authorities , or holders of public powers decided on the rights , obligations , or legal entitlements of individuals or legal entities .


Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant , PERSON , is a NORP national who was born in DATE and lives in Split . She was represented before the ORG by Mr T. Vukičević , an advocate practising in ORG . 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 , while visiting GPE , the applicant gave birth prematurely to her twin daughters , ORG Because she had given birth when she was DATE pregnant , her daughters barely survived . They were kept in a hospital in GPE for DATE , DATE of which was spent in intensive care . They were discharged on DATE .

On DATE the applicant made a request to ORG of ORG ( PERSON zdravstveno osiguranje – Područni ured Split ) seeking reimbursement in respect of the costs of her medical treatment . On DATE ORG granted the request and awarded her the equivalent in NORP kunas ( HRK ) of MONEY ( ORG ) for urgent medical services rendered abroad .

On DATE in GPE the applicant married I.B.A. , an NORP national and the father of her daughters .

On DATE the applicant made another request to ORG of ORG , this time seeking reimbursement in respect of the costs of the medical treatment of her daughters .

On DATE ORG dismissed her request , finding that her daughters were not registered as insured persons with ORG .

The applicant appealed , arguing , inter alia , that her daughters had acquired the status of insured persons at the moment of their birth and that they had been formally registered as such after all official documents had been obtained , having regard to the fact that they had been born abroad .

On DATE the Directorate of ORG ( Hrvatski zavod za zdravstveno osiguranje LOC ) , acting as the second - instance authority , dismissed the applicant ’s appeal and upheld the first - instance decision . After it had collected certain information from various administrative authorities , the ORG established that the daughters had been recorded in the register of births ( matica rođenih ) on DATE and in the register of citizens and the domicile register on DATE , and that their health insurance cards were valid from CARDINAL DATE . Against that background the ORG reasoned as follows :

“ From the printout of the database [ of insured persons ] the second - instance authority has established that [ the appellant ’s claim that her daughters ] ORG GPE were insured ‘ through the mother’ is not correct because their status as persons insured with ORG was recognised on DATE with the registration date of DATE as family members of the insurance holder : [ their grandmother ] S.Š.

The case file shows that the twins ORG at the time of their medical treatment in GPE did not have the status of insured persons with ORG , owing to the appellant ’s failure to notify FAC in GPE of the birth of the children ; whereas all the necessary notifications were made only after the first - instance decision had been adopted .

Pursuant to LAW paragraph CARDINAL of the Ordinance on Rights Related to Compulsory Health Insurance and the Criteria for their Enjoyment ... the status of an insured person is established by ORG on the basis of the prescribed application [ for registration ] ...

The insured person acquires the rights related to compulsory health insurance on DATE their status as an insured person is established .

Section CARDINAL of the Ordinance on the Criteria for Registration and Deregistration of an Insured Person requires legal and natural persons to apply for [ registration with ] the compulsory health insurance with the ORG ’s competent regional office within DATE after the conditions for recognition as an insured person have been met .

Section CARDINAL of the same Ordinance allows for the status of family member [ as the ground for insurance ] to be established only in respect of persons having their domicile or habitual residence in GPE .

The enclosed domicile certificates show ... that ORG have their domicile in PERSON , ... DATE from DATE , that is , after the adoption of the [ impugned first - instance ] decision , after which they were also registered with compulsory health insurance ...

[ In the light of the ] foregoing the ... arguments adduced by the appellant are unfounded ... ”

The applicant then brought an action in ORG ( ORG ) challenging the second - instance decision .

On DATE ORG dismissed her action . It held as follows :

“ Section CARDINAL of the Ordinance on the Criteria for Registration and Deregistration of an Insured Person and ORG of the Person Insured under Compulsory Health Insurance requires natural persons to apply for compulsory health insurance with the ORG ’s competent regional office within DATE of the conditions for recognition as an insured person having been met .

Under LAW paragraph CARDINAL point QUANTITY of GPE and the Criteria for their Enjoyment ... the status of an insured person is established from the date of birth , on the basis of the application [ for registration ] .

However , section CARDINAL of the Ordinance on LAW ... allows the status of a family member [ as the ground for insurance ] to be established only in respect of persons having their domicile or habitual residence in GPE , unless an international agreement provides otherwise .

Since it was established during the proceedings ... that at the time of their medical treatment abroad the ... twins did not have the status of insured persons with the ORG in accordance with section CARDINAL of the Ordinance on the Rights Related to Compulsory Health Insurance and the Criteria for their Enjoyment , it follows that , according to section CARDINAL of that GPE , they did not have the right to healthcare nor the right to reimbursement [ of costs of medical services rendered abroad . ]

In the light of the foregoing , this court has no legal possibility to find the impugned decision unlawful . ”

The applicant then lodged a constitutional complaint alleging violations of her constitutional rights to equality , judicial review of administrative decisions , a fair hearing and healthcare . On DATE ORG ( Ustavni sud PERSON ) dismissed the applicant ’s complaint . In finding so it held that :

“ The administrative authority conducting proceedings following a request for reimbursement of costs of medical treatment abroad is bound by the ... existence ( or non - existence ) of the status of the insured person ... This status of the complainant ’s children was decided in other proceedings , different from those from which the impugned decisions originate .

In proceedings following a request for reimbursement of costs of medical treatment abroad ( or in subsequent proceedings following an administrative action ) the administrative authority or ORG are neither authorised under the relevant legislation to question the lawfulness and the correctness of the proceedings for acquisition of the status of an insured person ... nor to alter the decisions delivered in those proceedings ( namely , the documents which were , as a result of those proceedings , issued to the complainant for her children ) , even in cases when those proceedings have not been conducted properly and in accordance with the law . Therefore , when reaching the impugned decisions , neither the competent administrative authority nor ORG could have examined questions such as the lawfulness and the correctness of the registration of domicile of the new - born children with the date when the request for registration was made ( and not with the date of birth ) or the lawfulness and the correctness of the issuance of the health insurance cards with a date different from DATE of birth .

It follows that the possible violations of the constitutional rights which occurred in the proceedings for acquisition of the status of an insured person ... can not be examined in the instant constitutional court proceedings .

Examining the [ impugned ] decisions by which the complainant was denied reimbursement of the costs of her children ’s medical treatment abroad , because when these costs were incurred the children had not been recognised as having the status of insured persons ... , ORG has established that these decisions are based on the relevant provision of section CARDINAL of the Ordinance on the Rights and Criteria for ORG .

In finding so , it has to be noted that the decision of the second - instance administrative authority and the judgment of ORG are partly based on legislation that is not relevant in the present case ... in particular ... section CARDINAL of the Ordinance on the Criteria for Registration and Deregistration of an Insured Person and ORG of the Person Insured under Compulsory Health Insurance . That provision provides for a time - limit of DATE to apply for [ registration with ] compulsory health insurance . The above - mentioned provision relates , however , only to legal and natural persons obliged to pay health insurance contributions , which [ is not the case with ] the complainant or her mother , who is the person from whose health insurance the insurance of the complainant ’s children is derived .

This finding , however , has no bearing on the possibility of a different resolution of the case or [ this ] court ’s view that the impugned decisions are lawful and did not violate the constitutional rights of the complainant or her children . ”

The relevant part of LAW ORG , ORG nos . DATE , CARDINAL , CARDINAL/CARDINAL ( consolidated text ) , CARDINAL , DATE ( consolidated text ) , CARDINAL and DATE ( consolidated text ) , PERSON ( corrigendum ) ) provides as follows :

“ Everyone shall be guaranteed the right to health care , in accordance with the law . ”

“ The ORG shall protect maternity , children and youths , and shall create social , cultural , educational , material and other conditions promoting the right to a decent life . ”

Article CARDINAL )

“ Everyone shall have a duty to protect children and the infirm . ”

The relevant provisions of LAW ( Zakon o zdravstvenom osiguranju , ORG , ORG . CARDINAL/CARDINAL , ORG , CARDINAL . ( consolidated text ) , CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL and CARDINAL/CARDINAL ) , in force at the material time , read as follows :

II . COMPULSORY HEALTH INSURANCE

Section CARDINAL

Section CARDINAL ( CARDINAL )

Section CARDINAL

The relevant provisions of the Ordinance on the Rights Related to Compulsory Health Insurance and the Criteria for their Enjoyment ( PERSON o pravima , uvjetima , i načinu ostvarivanja prava iz obveznog zdravstvenog osiguranja , ORG , ORG . CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL , ORG and CARDINAL ) , in force at the material time , read as follows :

Establishment of the status of an insured person

Section CARDINAL

Section CARDINAL

The relevant provisions of the Ordinance on the Criteria for Registration and Deregistration of an Insured Person and ORG of the Person Insured under Compulsory Health Insurance ( PERSON o načinu prijavljivanja i odjavljivanja , te utvrđivanju statusa osigurane osobe iz obveznog zdravstvenog osiguranja , ORG , ORG . CARDINAL , CARDINAL/CARDINAL and CARDINAL ) , in force at the material time , read as follows :

II . ESTABLISHMENT OF THE STATUS OF AN INSURED PERSON

Section CARDINAL

Section CARDINAL ( CARDINAL )

Legal or natural persons who are obliged to pay [ health insurance ] contributions are obliged to apply for [ registration with ] compulsory health insurance ( application for registration , application for registration of changes in the insurance and for deregistration ) with the competent regional office of the ORG within DATE of the conditions for recognition of the status of an insured person having been met ...

Section CARDINAL

The relevant provisions of the Decision on the Form and Content of the Document Proving the Status of Persons Insured with ORG ( ORG o sadržaju i obliku isprave kojom se dokazuje status osigurane osobe PERSON zavoda za zdravstveno osiguranje , ORG nos . DATE , FAC and CARDINAL ) , in force at the material time , read as follows :

Section CARDINAL ( CARDINAL )

Section CARDINAL ( CARDINAL )

The relevant provisions of the Ordinance on the Rights and Modalities of , and the Conditions for , ORG ( PERSON o pravima , uvjetima i načinu korištenja zdravstvene zaštite u inozemstvu , ORG , ORG . CARDINAL/CARDINAL and CARDINAL/CARDINAL ) , in force at the material time , read as follows :

Section CARDINAL

Section CARDINAL

The relevant provisions of the Domicile and Residence of Citizens Act ( Zakon o prebivalištu i boravištu građana , ORG , no . CARDINAL/CARDINAL , read as follows :

Section CARDINAL

A domicile is a place where a citizen has settled with the intention of permanently living there .

Section PERSON ) and ( CARDINAL )

Domicile of minors ... shall be established according to the last common domicile of their parents .

When the parents of such persons do not have common domicile or are not married , their domicile shall be established according to the domicile of the parent exercising parental authority [ that is , having custody ] .

Section CARDINAL ) and ( CARDINAL )

ORG have a duty to register and deregister domicile , register habitual residence and register a change of address .

Applications [ for registration or deregistration ] referred to in paragraph CARDINAL of this section for the persons without capacity to act shall be lodged by their parents or legal guardians .

Section CARDINAL

Application for registration of domicile or change of address shall be lodged within DATE of deregistration of the previous domicile or address .

The [ competent ] official shall issue a certificate of domicile or of change of address .

In its decision , no . Gr CARDINAL/CARDINAL - CARDINAL of DATE ORG ( PERSON ) interpreted ORG in the following way :

“ ... [ It ] follows that a citizen establishes domicile in a certain place on DATE he or she settles in that place with the intention of permanently living there ... and not from the moment he or she applied to register [ his or her ] domicile . ”

The relevant provisions of LAW ( Zakon o općem upravnom postupku , ORG of ORG CARDINAL/CARDINAL ( consolidated text ) , and ORG no . CARDINAL/CARDINAL ) , which was in force at the material time , provided as follows :

Section CARDINAL ) provided that , if the authority before which the administrative proceedings were pending found that the case could not be decided without deciding an issue the resolution of which was within the competence of a court or other authority ( preliminary issue ) , it could decide on that issue itself or stay the administrative proceedings until the competent authority had resolved it .

Section CARDINAL provided that administrative proceedings that had ended in a definitive decision could be reopened if , inter alia , the contested decision had been based on a preliminary issue , a substantial part of which the competent authority had later resolved differently .


Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings

The applicant was born in DATE and lives in GPE .

At the time of the events , he was the father of a pupil of a secondary school in ORG ) and vice - chairman and recording clerk ( PERSON ) of the parents ' association ( PERSON ) at this school .

NORP In protest against the government 's cuts in the education budget , the teachers of this school decided , together with the teaching staff of CARDINAL other schools , to reduce and shorten school trips for DATE . The pupils and some parents , including the applicant , did not agree with these measures .

The applicant called for a vote by ORG ) of the PERSON secondary school on the question whether the class his son was attending , should go on a DATE trip to GPE or GPE . ORG which is composed of CARDINAL representatives of the teachers , CARDINAL parents and CARDINAL pupils and the director of the school , represents parents and pupils in certain school matters .

The meeting at which ORG should have to vote on the question , after having been once postponed because CARDINAL of the teachers ' representatives could not participate , was finally fixed for DATE .

On DATE , before the meeting of ORG , the chair of the parents ' association on behalf of the parents , the pupils ' spokesperson on behalf of the pupils and CARDINAL representatives of the teachers signed a compromise which provided for only a DATE school excursion per class during DATE and for compensatory school trips in DATE .

NORP On DATE the applicant stated before a journalist of the “ Oberösterreicher Rundschau ” , a local newspaper for GPE , that this conflict ( between the teachers , parents and pupils concerning the boycott measures ) was carried out to the detriment of the pupils and that the teachers were applying pressure on the pupils and parents to an intolerable extent and that this amounted in fact to an abuse of their authority .

On DATE the “ Oberösterreicher Rundschau ” published an article which stated inter alia : “ ' This conflict is carried out to the detriment of the pupils ' blusters professor PERSON , representative of the parents and former teacher at the secondary school . ' Not only this : the teachers apply pressure on pupils and parents to an intolerable extent . This amounts in fact to an abuse of their authority . Who is surprised that the school speaker was at the end of her tether . ' ”

NORP The majority of teachers of the PERSON secondary school brought proceedings against the applicant for insult and damage to their reputation before ORG .

NORP The Peuersbach ORG heard the applicant , the teachers , the spokesperson of the pupils , the chair of the parents ' association and several other witnesses .

By judgment of DATE , it ordered the applicant to refrain from repeating the statement that the teachers were applying pressure on the pupils and parents to an intolerable extent and that this amounted in fact to an abuse of their authority . It noted that the statement was an insult and a defamation within the meaning of LAW . The applicant had to accept the most unfavourable interpretation of this statement which meant that the teachers had used unlawful and unobjective means in order to make parents and pupils agree to the boycott measures . The applicant had , however , failed to submit any evidence to prove this reproach . The court noted that it was true that , in the course of time the atmosphere between the pupils and teachers at the PERSON secondary school had been strained . The spokesperson of the pupils had complained that the teachers did not take her seriously and avoided any discussion about the boycott measures with her . She had , therefore , resigned from her function as spokesperson . The court further observed that the conflicting interests of teachers , parents and pupils in regard to the boycott measures naturally caused tensions . There was , however , no indication that the teachers had used unlawful and unobjective means , such as , for example , the use of their authority to assign marks , in order to make the parents and pupils agree to the compromise . It was , on the contrary , because of the teachers ' unbending attitude concerning the boycott measures that pupils and parents had finally resigned and agreed to the compromise .

The court dismissed the teachers ' further request for an injunction as regards the applicant 's statement that the conflict was detrimental to the pupils .

The applicant appealed against this decision . He submitted inter alia that he had alluded to the subtle measures the teachers had employed in order to reach a compromise , such as their threat to boycott the meeting of ORG and their tactics to undermine the authority of the pupils ' spokesperson . This was contrary to their official duties and , therefore , unlawful . He further referred their successful tactics to delay the meeting of ORG , the testimony of some pupils who had stated that they had felt under pressure and the fact that , in the context of the discussions concerning the boycott measures , both the pupils ' spokesperson and the chair of the parents ' association had resigned from their functions . The statement at issue was a value judgment with sufficient factual basis and was protected by his right to freedom of expression under LAW . From the context of the situation in which the statements had been made , it was clear that he had referred to the pressure which had led to the signing of a compromise . Neither the concerned pupils , nor the parents had understood his criticism to the effect that the teachers had applied psychical or verbal violence or had applied pressure by their authority to assign marks . Furthermore , the teachers had themselves attracted the attention of the public by their boycott measures which had provoked criticism and resistance .

On DATE ORG dismissed the appeal . It noted that the statement at issue constituted a statement of fact susceptible of proof . The applicant had failed to prove that the statement was true . The injunction at issue did , therefore , not violate the applicant 's right to freedom of expression . The court further ordered the applicant to pay the costs of the proceedings . This decision was served on the applicant 's counsel on DATE .


András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

The applicants are NORP nationals and at the time of lodging their applications they were serving prison sentences in various establishments . The names and dates of birth of the applicants , as well as the names of their representatives , and the dates of introduction of the applications appear in the appendix .

By a decision of the Izmir F - type ORG , dated DATE , the applicants were found guilty of breaching prison order by pressing emergency buttons in the cells and by refusing to participate in prison workshops .

Pursuant to the Regulations on the administration of penitentiary institutions and the execution of sentences , the applicants were all prohibited from corresponding for DATE . Their appeal requests were rejected by the Enforcement Judge and subsequently by ORG on CARDINAL and DATE respectively , on the basis of the case file , without hearing the applicants or their lawyers , pursuant to PERSON no . DATE on ORG , of DATE .

Section CARDINAL of Law no . DATE , which lays down the competences of ORG , provides that objections filed against disciplinary sanctions shall be dealt with by such a judge . Section CARDINAL provides that the prisoner concerned , or his or her close relative or legal representative , can file an objection against a disciplinary sanction . Furthermore , LAW stipulates that the Enforcement Judge shall decide on the basis of the case file , without holding a hearing . That judge may conduct an examination ex officio or request further information from the parties if the interests of justice so require . An appeal against the decisions of ORG lies to the nearest ORG .

According to this recent law ( LAW ) , upon objection against a disciplinary sanction , the Enforcement Judge delivers his / her decision after hearing the defence submissions of the prisoner concerned and collecting all the evidence . The prisoner can present his / her defence submissions in person and/or in the presence of his / her lawyer or only through a lawyer .

The law further provides a remedy for all those prisoners who had previously filed objections with the Enforcement Judges concerning disciplinary sanctions imposed on them before the adoption of this law ( Provisional LAW . Accordingly , those who had previously filed objections with ORG against a prison disciplinary sanction now have the possibility of filing a fresh objection with the Enforcement Judge within DATE following the adoption of this law , and their cases will be dealt with in accordance with the new procedures .

In their additional observations , the Government provided CARDINAL sample decisions delivered by ORG following the adoption of PERSON No . CARDINAL . In these QUANTITY cases ( nos . ECARDINAL/CARDINAL PERSON and ECARDINAL/CARDINAL K CARDINAL/CARDINAL ) , dated DATE and DATE respectively , ORG re - examined the objections filed by prisoners who had previously received disciplinary sanctions . In both cases , the Enforcement Judge heard the prisoners in person and re - examined the evidence in the case files . At the end of the proceedings , the Enforcement Judge annulled the disciplinary sanctions in dispute , clearing these prisoners from all of the consequences of the offence .