Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Angelika Nußberger;Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Zdravka Kalaydjieva

The applicants are NORP nationals residing in the hamlet of PERSON in the GPE region .

The first to fifth applicants are members of an extended family residing in a house owned by the first applicant ( the GPE family house ) . This house was built by the family in DATE .

The remaining applicants are members of an extended family residing in a house constructed by the sixth applicant ( the PERSON - Vakiv family house ) . This house was built by him in DATE . It is unclear whether a permit for construction of this house was obtained in DATE . Subsequently the house was officially registered , to which a property certificate of DATE is witness .

The applicants ' houses are located in Vilshyna hamlet , administratively a part of ORG village , GPE , GPE . The village is located in the FAC coal - mining basin .

In DATE the ORG began building , and in DATE put into operation , the Velykomostivska No . CARDINAL coal mine , whose spoil heap is located QUANTITY from the GPE family house . In DATE this mine was renamed the GPE mine of ORG ( “ the mine ” ; Шахта « PERSON CARDINAL « Львіввугілля ORG ) . In DATE a decision was taken to close the mine as unprofitable . The closure project is currently under way .

In DATE the ORG opened the ORG coal processing factory ( “ the factory ” ; Центрально-збагачувальна фабрика « PERSON ) in the vicinity of the hamlet , initially managed by ORG . In DATE the factory was leased out to ORG ( ORG Львівсистеменерго GPE ) . Subsequently the PERSON was succeeded by ORG . In DATE a decision was taken to allow the factory to be privatised . It is not clear whether the factory has already been privatised .

NORP In the course of its operation the factory has piled up a CARDINAL spoil heap QUANTITY from the GPE family house and QUANTITY from the ORG family house . This spoil heap was not subject to privatisation and remained ORG property .

According to a number of studies by governmental and nongovernmental entities , the operation of the factory and the mine has had adverse environmental effects .

NORP In particular , in DATE the ORG ( “ the ORG ” ; Виконавчий комітет GPE районної ради ) noted that the mine 's and the factory 's spoil heaps caused continuous infiltration of ground water , resulting in flooding of certain areas .

According to an assessment commissioned by ORG , jointly with the ORG geological company ( GPE комітет GPE по геології та використанню надр ; NORP геологічне підприємство « Західукргеологія ORG ) in DATE , the factory was a major contributor to pollution of the ground water , in particular on account of infiltration of water from its spoil heap . The authors of the assessment contended , in particular , that :

“ All the coal - mining industry operational in the region for DATE has been negatively affecting the environment : spoil heaps from the mines and the coal - processing factory have been created , from which dust with a high concentration of toxic components spreads into the atmosphere and the soil ... systems of water drainage of the mines ... and cesspools ... of the coal - processing factory are sources of pollution of surface and underground waters ...

Rocks from the spoil heaps contain a variety of toxic heavy metals , leaching of which results in pollution of soils , surface and underground waters ...

Very serious polluters ... are cesspools of mining waters and factory tailing ponds ... , which in the event of the slightest disturbance of the hydro - insulation cause pollution of surface and ground waters ...

The general area of soil subsidence is QUANTITY ... the deepest subsidence ( QUANTITY ) corresponds to areas with the most mining activity ...

During construction of the water inlets ... deep wells were drilled which reached those [ mineralised ] waters . All this inevitably affected the health of people living in the area , first of all the children ...

Extremely high pollution levels ... were found in the hamlet of PERSON , not far from the coal - processing factory and mine no . CARDINAL spoil heaps , in the wells of Mr T. and Mr Dubetskyy . We can testify that even the appearance of this water does not give grounds to consider it fit for any use . People from this community should be supplied with drinking - quality water or resettled ... ”

NORP In DATE similar conclusions were proposed in a white paper published by ORG .

On DATE ORG ( “ the Sanitary Service ” ; PERSON міська санітарноепідеміологічна служба ) recorded a CARDINAL excess of dust concentration and a CARDINAL excess of soot concentration in ambient air samples taken QUANTITY from the factory 's chimney .

On DATE ORG sampled water in the Vilshyna hamlet wells and found it did not meet safety standards . In particular , the concentration of nitrates exceeded the safety limits by three- to CARDINAL - fold , the concentration of iron by five- to CARDINAL - fold and that of manganese by nine- to CARDINAL - fold .

On DATE ORG ( PERSON екології та природних ресурсів ) acknowledged in a letter to the applicants that mining activities were of major environmental concern for the entire FAC region . They caused soil subsidence and flooding . Heavy metals from mining waste penetrated the soil and ground waters . The level of pollution of the soil by heavy metals was up to CARDINAL times the permissible concentration , in particular in GPE , especially on account of the operation of the factory and the mine .

On DATE factory officials and ORG ( PERSON гірничо-технічна інспекція з нагляду у вугільній промисловості ) recorded infiltration of water from the foot of the factory 's spoil heap on the side facing Vilshyna hamlet . They noted that water flowing from the heap had accumulated into QUANTITY of brownish salty lake .

In DATE the GPE company published a study entitled “ Hydrogeological Conclusion concerning the Condition of Underground Waters in LOC ” , according to which in the geological composition of the area there were water - bearing layers of sand . The study also indicated that even before the beginning of the mining works the upper water - bearing layers were contaminated with sodium and compounds thereof as well as iron in the river valleys . However , exploitation of the mines added pollution to underground waters , especially their upper layers .

On DATE the Lviv Chief Medical Officer for Health ( NORP державний санітарний лікар ORG області ) noted that air samples had revealed dust and soot exceeding the maximum permissible concentrations QUANTITY from the factory , and imposed administrative sanctions on the person in charge of the factory 's boiler .

In DATE Dr PERSON of ORG reported that the concentration of soot in ambient air samples taken in GPE was CARDINAL times higher than the maximum permissible concentration under domestic standards . The well water was contaminated with mercury and cadmium , exceeding domestic safety standards CARDINAL - fold and fourfold respectively . According to the report , the hamlet inhabitants were exposed to higher risks of cancer and respiratory and kidney diseases .

The applicants first submitted that their houses had sustained damage as a result of soil subsidence caused by mining activities and presented an acknowledgement of this signed by the mine 's director on DATE . According to the applicants , the mine promised to pay for the repair of their houses but never did so .

Secondly , the applicants alleged that they were continuing to suffer from a lack of drinkable water . They contended that until DATE the hamlet had no access to a mains water supply . Using the local well and stream water for washing and cooking purposes caused itching and intestinal infections . The applicants presented CARDINAL photographs reportedly of the water available to them near their home . CARDINAL photo entitled “ water in a well in Vilshyna hamlet ” pictured a bucket full of yellow - orange water near a well . The second photo entitled “ a stream near the house ” pictured a small stream of a bright orange colour . The third photo entitled “ destruction of plant life by water from the coal - processing factory waste heap ” depicted a brownish lake with many stumps and several dead bushes in the middle of it .

The applicants further contended that from DATE PERSON had been bringing , at its own expense , drinkable water into the hamlet by truck and tractor . However , this water was not provided in sufficient quantity . In evidence of this statement , the applicants presented a photograph picturing CARDINAL large buckets of water and entitled “ DATE water supply ” .

The applicants further alleged that the water supply was not always regular . In support of this argument they produced letters from ORG dated DATE and DATE , acknowledging recent irregularities in supply of drinking water .

Thirdly , some of the applicants were alleged to have developed chronic health conditions associated with the factory operation , especially with air pollution . They presented medical certificates which stated that PERSON and ORG were suffering from chronic bronchitis and emphysema and that PERSON had been diagnosed with carcinoma .

Fourthly , the applicants contended that their frustration with environmental factors affected communication between family members . In particular , lack of clean water for washing reportedly caused difficulties in relations between spouses . Younger family members sought to break away from the older ones in search of better conditions for their growing children .

The applicants , however , did not relocate . They alleged that they would not be able to sell houses located in a contaminated area or to find other sources of funding for relocation to a safer community without ORG support . In evidence , the applicants presented a letter from a private real estate agency , PERSON , dated DATE , stating the following :

“ since in Vilshyna hamlet ... there has been no demand for residential housing for DATE because of the situation of this hamlet in technogenically polluted territory and subsidence of soil on its territory ... it is not possible to determine the market value of the house . ”

In DATE ORG ordered the factory to develop a plan for management of the buffer zone .

On DATE ORG found that the factory had failed to comply with its order and ordered suspension of its operation . In spite of this measure , the factory reportedly continued to operate , with no further sanctions being imposed on its management .

On DATE and DATE ORG for ORG ( “ ORG ” ; PERSON комісія з питань техногенноекологічної безпеки та надзвичайних ситуацій ) ordered a number of measures to improve water management and tackle soil pollution in the vicinity of the factory .

On DATE ORG ( ORG обласна державна адміністрація ) noted that the overall environmental situation had not improved since ORG decision of DATE , as no funds had been allocated by ORG for implementation of the relevant measures .

On DATE ORG found that the mine had failed to comply with its instruction of DATE as to the development of a plan for management of the buffer zone , and ordered suspension of its operation . However , the mine reportedly continued to operate .

On DATE the ORG ( NORP гігієни та медичної екології ім. О. М. Марзеєва АМН України ) developed a management plan for the factory buffer zone . The authors of the report acknowledged that the factory was polluting the air with nitrogen dioxide , carbon oxide , sulphuric anhydride and dust . They noted , however , that according to their studies ambient air samples taken QUANTITY from the factory did not contain excessive pollution . The plan provided for implementation of a number of measures aimed at improvement of the hydro - insulation of the spoil heap , as well as reduction of its height to QUANTITY . The authors concluded that in view of such measures it was possible to establish a general buffer zone at QUANTITY for the entire factory site .

Later in DATE ORG ( GPE охорони здоров'я ) approved ORG plan , on an assumption that the height of the spoil heap would be reduced by DATE .

On DATE ORG fined the factory director for failing to implement the measures in the factory buffer zone management plan .

On DATE ORG noted that QUANTITY houses , including those of the applicants , were located within the factory spoil heap CARDINAL-metre buffer zone , in violation of applicable sanitary norms . It further allowed the GPE company to resettle the inhabitants and to have these houses demolished . The ORG further obliged the company director to provide the applicants with housing by DATE . This decision was not enforced .

NORP In DATE ORG amended its decision and allowed the residents to keep their former houses following resettlement for recreational and gardening use .

On DATE ORG noted that CARDINAL families lived within the limits of the factory buffer zone and commissioned ORG and local executive authorities to ensure their resettlement in DATE . The names of the families appear not to have been listed .

In DATE the applicants enquired of ORG when they would be resettled and received no answer .

In DATE ORG included resettlement of CARDINAL families ( names not listed ) from the factory sanitary security zone in their DATE activity plan , indicating the ORG budget as the funding source and referring to ORG decision of DATE .

On DATE ORG noted that its decision of DATE remained unenforced and ordered ORG , ORG and the factory to work together to ensure the resettlement of families from the factory spoil heap buffer zone by DATE .

In DATE the applicants , along with other village residents , complained to the President of GPE about the non - enforcement of the decisions concerning their resettlement . ORG redirected their complaint to ORG and ORG and ORG for consideration .

On DATE ORG and ORG informed the Vilshyna inhabitants in response to their complaint that it had proposed that the ORG of Ministers ensure prompt resettlement of the inhabitants from the factory buffer zone in accordance with the decision of ORG of DATE .

On DATE ORG informed the applicants that it had repeatedly requested the Prime Minister and ORG to provide funding for the enforcement of the decision of DATE .

On DATE the GPE family instituted civil proceedings in ORG ( Місцевий суд м. Червонограда ) seeking to oblige the factory to resettle them from its buffer zone . Subsequently ORG was summoned as a codefendant .

The first hearing was scheduled for DATE . Subsequent hearings were scheduled for CARDINAL DATE and DATE , CARDINAL and DATE , CARDINAL May , DATE and DATE , DATE and DATE , and CARDINAL November , DATE , DATE and DATE . On CARDINAL occasions hearings were adjourned on account of a defendant 's absence or following a defendant 's request for an adjournment .

On DATE ORG found that the plaintiffs resided in the mine 's buffer zone and ordered ORG holding it to resettle them . It further dismissed the applicants ' claims against the factory , finding that their house was outside its CARDINAL buffer zone .

This judgment was not appealed against and became final .

On DATE ORG initiated enforcement proceedings .

On DATE the Bailiffs fined the mine 's director for failing to ensure the enforcement of the judgment . The latter appealed against this decision .

On DATE the director informed the Bailiffs that the mine could not comply with the judgment . It neither had available residential housing at its disposal nor was it engaged in constructing housing , as it had received no appropriate allocations from the ORG budget .

The judgment remains unenforced to the present date .

On DATE the PERSON family , similarly to the GPE family , instituted civil proceedings at ORG seeking to be resettled outside the factory buffer zone .

Subsequently the factory was replaced by DATE as a defendant in the proceedings .

The first hearing was scheduled for DATE . Subsequent hearings were scheduled for CARDINAL , DATE and DATE , and CARDINAL and DATE , CARDINAL May , DATE and DATE .

On DATE ORG dismissed the applicants ' claims . The court found , in particular that , although the plan for management of the factory buffer zone was still under way , there were sufficient studies to justify the CARDINAL zone . As the plaintiffs ' house was located outside it , the defendant could not be obliged to resettle them . Moreover , the defendant had no funds to provide the applicants with new housing . The court found the decision of DATE concerning the applicants ' resettlement irrelevant and did not comment on subsequent decisions concerning the matter .

On DATE the applicants appealed . They maintained , in particular , that the law provided that the actual concentration of pollutants on the outside boundaries of the zone should meet applicable safety standards . In their case , the actual level of pollution outside the zone exceeded such standards , as evidenced by a number of studies , referring to the factory operation as the major source of pollution . Furthermore , the decision of ORG of DATE could not have been irrelevant , as it remained formally in force .

On DATE ORG ( GPE суд GPE області ) upheld the previous judgment and agreed with the trial court 's reasoning . In response to the applicants ' arguments concerning the actual pollution level at their place of residence , the court noted that the hamlet was supplied with imported water and that in any event , while the applicable law included penalties against polluters , it did not impose a general obligation on them to resettle individuals .

On DATE the applicants appealed on points of law , relying on essentially the same arguments as in their previous appeal .

On DATE ORG ( GPE суд ORG області ) dismissed the applicants ' request for leave to appeal on points of law .

Relevant provisions of the LAW read as follows :

“ To ensure ecological safety and to maintain the ecological balance on the territory of GPE , to overcome the consequences of the GPE catastrophe — a catastrophe of global scale , and to preserve the gene pool of the NORP people , is the duty of the ORG . ”

“ Everyone has the right to an environment that is safe for life and health , and to compensation for damages inflicted through the violation of this right ... ”

According to LAW , private and public entities and individuals could be held liable under the law for failure to comply with lawful decisions of bodies of regional self - government ( which included executive committees of district councils ) .

Subsequent legislation concerning local self - government did not envisage the existence of such a body as an executive committee of a district council .

Relevant provisions of the PERSON “ On Waste ” read as follows :

“ The ORG is the owner of waste produced on ORG property ... On behalf of the ORG the management of waste owned by the ORG shall be carried out by ORG . ”

DATE . The above PERSON introduced a new mechanism for payment and amortisation of companies ' debts for energy resources . It also introduced a special register of companies involved in debt payment and amortisation under its provisions . A company 's presence on that register suspends any enforcement proceedings against it ; domestic courts shall also dismiss any request to initiate insolvency or liquidation proceedings against the company .

Relevant provisions of the Order of the Ministry of Health read as follows :

“ CARDINAL . Industrial , agricultural and other objects , which are sources of environmental pollution with chemical , physical and biological factors , in the event that it is impossible to create wasteless technologies , should be separated from residential areas by sanitary security zones .

On the exterior boundary of a sanitary security zone which faces a residential area , concentrations and levels of harmful substances should not be greater than those set down in the relevant hygiene standards ( maximum permissible concentrations , maximum permissible levels ) ...

In the event the studies do not confirm the statutory sanitary security zone or its establishment is not possible under particular circumstances , it is necessary to take a decision concerning a change of production technology , which would provide for decrease in emission of harmful substances into the atmosphere , its re - profiling or closure .

Supplement No . CARDINAL , GPE classification of enterprises , production facilities and buildings and their required sanitary security zones :

A sanitary security zone of QUANTITY [ shall surround the following facilities ] :

Spoil heaps of mines which are being exploited , inactive spoil heaps exceeding QUANTITY in height which are susceptible to combustion ; inactive spoil heaps exceeding QUANTITY in height which are not susceptible to combustion .

NORP ... coal - processing factories using wet treatment technology

NORP ... inactive spoil heaps of mines , QUANTITY in height and not susceptible to combustion . ”


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi

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

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

The applicant ’s wife died on CARDINAL DATE . They had no children from the marriage . On DATE the applicant applied for widows’ benefits . On DATE the applicant was informed that his claim had been disallowed as he was not a woman . The applicant contacted ORG on DATE and was told that he would receive no further correspondence on the matter . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .

The domestic law relevant to this application is set out in Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .


Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant was born in DATE and lives in GPE .

The applicant has lived in a flat in a residential quarter of GPE since DATE .

Since DATE ORG has allowed licensed LOC such as bars , pubs and discotheques to open in the vicinity of her home , making it impossible for people living in the area to sleep .

Local residents first complained about vandalism and noise in the locality before DATE .

NORP In view of the problems caused by the noise , ORG resolved on DATE not to permit any more night clubs to open in the area . However , the resolution was never implemented and new licences were granted .

In DATE ORG commissioned a report by an expert . The expert found that the noise levels were unacceptable and exceeded permitted levels . At TIME on DATE they were in excess of CARDINAL dBA Leq ( decibels ) , ranging from CARDINAL to CARDINAL LOC .

In a report of CARDINAL DATE the police informed ORG that nightclubs and discotheques in the sector in which the applicant lived did not systematically close on time . They said that they were able to confirm that the local ORG complaints were founded .

On DATE ORG approved a new bylaw on noise and vibrations , which was published on DATE in ORG province . LAW bylaw lays down that in a family residential area ( such as the one in which the applicant lives ) external noise levels were not to exceed CARDINAL dBA Leq TIME of the bylaw defines “ acoustically saturated zones ” as areas in which the large number of establishments , activity of the people frequenting them and passing traffic expose local residents to high noise levels and cause them serious disturbance .

Lastly , the bylaw specified the conditions that had to be satisfied for an area to be designated an “ acoustically saturated zone ” ( zona acústicamente saturada ) and the consequences of designation , which included a ban on new activities ( such as nightclubs and discotheques ) that led to acoustic saturation .

Following a resolution of ORG sitting in plenary session on DATE , which was published in ORG of the GPE province on DATE , the area in which the applicant lived was designated an acoustically saturated zone .

Nevertheless , on DATE ORG granted a licence for a discotheque to be opened in the building she lived in . The licence was subsequently declared invalid by a judgment of ORG of DATE .

NORP In order to determine whether the area should be designated an acoustically saturated zone , ORG took various sound - level readings to monitor acoustic pollution there . In each of its reports the ORG laboratory indicated that the noise levels exceeded those permitted by the bylaw .

The applicant was exasperated by the situation , which prevented her from sleeping and resting and caused her insomnia and serious health problems . On DATE she lodged a preliminary claim with ORG in which she relied on LAW ( right to life and to physical integrity ) and LAW ( right to the privacy and inviolability of the home ) . She sought MONEY ( MONEY ) for the damage she had sustained and the cost of installing double glazing .

Having received no reply from the authorities and in accordance with LAW ( Law no . CARDINAL/CARDINAL ) , the applicant lodged an application for judicial review with ORG on DATE , alleging a violation of ORG CARDINAL and CARDINAL LAW .

On DATE ORG lodged its written observations . It submitted that the application was premature and should be declared inadmissible , as the ORG could still find a solution . This preliminary objection was dismissed in a decision of DATE .

On DATE the representative of state council ’s office argued that the court should find in favour of the applicant . He considered that there had been a violation of Articles CARDINAL and CARDINAL LAW and that the applicant ’s claim for damages was justified .

NORP In a judgment of DATE , delivered after an adversarial hearing in public , ORG dismissed the application for judicial review . It found that the readings had been taken in the entrance hall to the building , not in the applicant ’s flat , and could not entail a violation of ORG CARDINAL and CARDINAL LAW ; it also noted that the medical expert ’s report stated only that the applicant had been receiving treatment for insomnia for DATE , without indicating the length of or reason for such treatment .

On DATE the applicant lodged an amparo appeal with ORG . Relying on Articles CARDINAL ( equality ) and CARDINAL ( right to a fair hearing ) of the LAW , she complained that ORG had not given sufficient reasons in its judgment or assessed the evidence . She also complained under LAW and CARDINAL LAW of a violation of her rights to life , physical and mental integrity , privacy and the inviolability of the home .

In a decision of CARDINAL DATE , ORG declared the amparo appeal admissible and invited the applicant , the representative of state council ’s office and ORG to submit their observations . On DATE , it summoned the parties to a hearing on the merits on DATE .

At the hearing on DATE , which was attended by all the parties , the applicant repeated her factual and legal submissions , stressing that there had been a violation of her fundamental rights .

ORG raised a number of preliminary objections . It further submitted that the appeal was confined to the decision of ORG . With regard to the alleged violation of ORG CARDINAL and CARDINAL LAW , it stated that there was no evidence of noise levels inside the applicant ’s home and that the authority concerned should not bear sole responsibility for the noise to which the applicant had allegedly been exposed , as it had very limited means at its disposal to combat it .

The representative of state council ’s office agreed with the applicant that there had been a violation of ORG CARDINAL and CARDINAL LAW . He argued that the amparo appeal should be regarded as hybrid , since it both accused ORG of failing to defend the fundamental rights set out in LAW and CARDINAL of the LAW and challenged the Valencia High Court of ORG ’s decision , alleging a violation of ORG CARDINAL and CARDINAL of the LAW also .

As regards the violation of ORG CARDINAL and CARDINAL LAW , the representative of state council ’s office said that , in the light of the judgments of ORG , in particular in the case of PERSON NORP v. GPE , there had been a violation of the applicant ’s right to the inviolability of her home , as her home environment had been rendered unfit for ordinary everyday living . On the basis of the ORG ’s case - law , he sought a broader definition of the constitutional concept of the “ home ” .

As regards noise levels inside the applicant ’s home , the representative of state council ’s office considered that the burden of proof had been reversed , as it was clear in the instant case that officials from ORG had confirmed on a number of occasions that the maximum permitted noise levels were being exceeded . Consequently , he did not consider it necessary to require such proof from the applicant .

In a judgment of CARDINAL DATE , which was served on DATE , ORG dismissed the appeal after also dismissing ORG preliminary objections . It ruled that the amparo appeal was hybrid in nature , that is to say that it alleged a violation of ORG CARDINAL and CARDINAL LAW by ORG and a breach of ORG DATE LAW by ORG .

As regards the alleged violation of ORG DATE , ORG began by noting that it was not entitled to substitute ORG assessment of the evidence with its own . As to the applicant ’s allegation that the judgment did not contain sufficient reasons , it noted that ORG decision could not be regarded as arbitrary or unreasonable . It further observed that the applicant had not identified the decisions on which she relied in alleging discrimination . Thus , there was no evidence of any violation of ORG DATE .

With regard to the alleged violation of ORG CARDINAL ( right to life and physical integrity ) and CARDINAL § CARDINAL ( right to privacy and to the inviolability of the home ) of the LAW , ORG referred to the decisions in which ORG had held that , in cases of exceptional gravity , repeated damage to the environment could infringe the right to respect for private and family life under LAW , even if did not endanger health . ORG held , however :

“ ... there may only be a violation of LAW if the level of acoustic saturation to which a person is exposed as a result of an act or omission of a public authority causes serious and immediate damage to his or her health . ”

ORG found that that test had not been satisfied in the case before it and pointed out :

“ ... even though the appellant maintains that the noise levels to which she was exposed turned her into an insomniac , the only evidence she has adduced is a certificate stating that she was admitted to hospital and saw a doctor , without any indication of the period for which she had been suffering from lack of sleep or the cause thereof . ... ”

The Constitutional Court found that the applicant had not established a direct link between the noise and the damage she had sustained .

As to the allegation of a violation of LAW , the Constitutional Court further found that she had not established the existence of a nuisance in her home that amounted to a violation of the constitutional provision . It stated :

“ ... the appellant has confined herself to making a general complaint by stating that the origin of the noise was diffuse and not restricted to a single source of production , and that the acoustic saturation resulted from a combination of noises . ... On the contrary , her entire case is based on a few sound - level readings taken inside her home which gave disparate results ... and do not establish that there has been a violation of the right relied on . ... ”

By way of conclusion , ORG dismissed the amparo appeal on the following ground :

“ Consequently , as regards the alleged violation of the rights relied on the amparo appeal must be dismissed , as the appellant has failed to prove the existence of a genuine effective breach of fundamental rights attributable to ORG . ”

That judgment was delivered by ORG sitting as a full court . However , CARDINAL judges expressed concurring opinions . The first said that the judgment restricted the free development of the personality at home . He considered that the conditions that had to be satisfied for there to be a violation of fundamental rights in the case under consideration were unreasonable and he defended the need to speak of a triple layer of constitutional protection , ranging from the right to physical and moral integrity ( LAW ) to an environment that was suitable for personal development ( LAW ) , via the right to privacy in the home ( LAW ) .

The second judge pointed out in his concurring opinion that there was a preliminary problem that had not been adequately dealt with , namely the degree to which the relevant authority was required to provide the requested protection . Determining the extent of that obligation was a prerequisite to establishing whether or not there existed a causal link between the authority ’s failure to act and the alleged violation . The authorities were obliged to exercise their power when the breach of the fundamental rights attained a certain level of gravity .

The relevant provisions of the LAW are as follows :

“ The provisions relating to the fundamental rights and freedoms recognised under LAW shall be construed in accordance with LAW and the international treaties and agreements which GPE has ratified in that sphere . ”

“ Everyone shall have the right to life and to physical and mental integrity . ... ”

“ The home shall be inviolable . ... ”

“ Everyone shall have the right to enjoy an environment suitable for personal development and the duty to preserve it .

“ Every citizen shall be entitled to seek protection of the freedoms and rights recognised in LAW by bringing an action in the ordinary courts under a procedure designed to ensure priority and expedition and , in appropriate cases , by an appeal ( recurso de amparo ) to LAW ... ”

Section CARDINAL , which was repealed by LAW of DATE ( Law no . CARDINAL ) , read as follows :

“ ... [ a]n application for judicial review may be brought in accordance with the procedural rules set out in this section in respect of decisions of the public authorities that are subject to administrative law and liable to affect the exercise of the fundamental rights of the person ... ”

The relevant parts of LAW reads :

“ CARDINAL . An amparo appeal for violations of rights and guarantees amenable to constitutional protection ... will lie only if :

( c ) the party relying on the alleged violation formally pleads it in the relevant proceedings after becoming aware of its occurrence . ”

The relevant provisions of the bylaw provide :

“ Permitted external noise - reception levels shall be determined by reference to the main user of each of the areas marked on the city development plan and shall not exceed :

Maximum reception levels :

Multiple family residence :

TIME ( from TIME ) : PERCENT ( A )

Night - time ( from TIME ) : PERCENT ( A )

“ CARDINAL . Zones that are acoustically saturated by additional causes are areas or places in which the large number of establishments , activity of the people frequenting them and passing traffic expose local residents to high noise levels and cause them serious disturbance .

NORP An area may be designated an acoustically saturated zone ( ORG ) if , though individual activities are compliant with the levels set out in this bylaw , the level of disturbance due to external noise as referred to in DATE is exceeded twice - weekly in consecutive DATE , or CARDINAL times intermittently over a period of DATE , and exceeds PERCENT ( A ) . ”

The relevant parts of the report drawn up by PERSON , a professor of applied physics , on the sound - level readings taken in the district in which the applicant lived in GPE read as follows :

“ The results obtained from measurements taken by ORG acoustic laboratory over a period of DATE in the said area and measurements taken by other bodies showed that ambient noise levels in this area , in particular at TIME and DATE ( especially TIME ) are extremely high . At these periods in the area concerned the TIME equivalent sound levels ( PERSON ) frequently exceed CARDINAL dB ( A ) and the maximum corresponding levels exceed PERCENT ( A ) .

As a result , we can say that noise levels in dwellings in this urban area are intolerably high at TIME - time and , consequently , detrimental to the health and well - being of the residents .

This conclusion is based on the fact that , even with the windows closed ( including in the height of DATE ) , indoor noise levels are very high . It should be noted that under the current regulations ( building norm FAC ) the minimum insulation requirement for the frontage of buildings is CARDINAL dB ( A ) . In practice , that figure is never attained and is generally in the region of PERCENT ( A ) .

Consequently , in these circumstances , night - time noise levels inside the dwellings , for example in bedrooms overlooking the street , can be estimated at in the region of PERCENT ( A ) , with maximum levels reaching PERCENT ( A ) . We would point out that this is a general estimate and is made without the need for specific measurements to be taken inside the dwellings concerned .

We should explain here that the difference CARDINAL ) is enormous . Thus , an increase from CARDINAL dB ( A ) does not represent a slight increase in noise ( as a layman might think ) but the doubling in intensity of the corresponding noise . An informed reading of this report is only possible if the meaning of the “ decibel ” unit used here is correctly understood . ”


CASE OF SCHÄDLER AND OTHERS v. LIECHTENSTEIN

Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

Ganna Yudkivska;Isabelle Berro-Lefèvre;Mark Villiger

The first applicant , Mr PERSON , was born in DATE , PERSON PERSON was born in DATE , Mr PERSON in DATE , Mr PERSON in DATE , Mr PERSON in DATE , Mr PERSON in DATE , Mr PERSON in DATE , Mr PERSON in DATE , Mr PERSON in DATE and PERSON PERSON in DATE . They live in GPE ( GPE ) .

On DATE and DATE a land development plan ( GPE ) was adopted by referendum in GPE . According to that plan , the main part of a plot of land owned jointly by the applicants fell within a zone in which the construction of buildings was not authorised .

By submissions dated DATE the first applicant lodged an objection with GPE which received these submissions on DATE . He contested the lawfulness of the land development plan and of the procedure by which it had been approved and requested that the plot of land in question be designated as building land .

On DATE the Municipality of GPE dismissed the first applicant ’s objection . It found , in particular , that the applicants’ plot of land had not been classified as building land prior to the adoption of the land development plan either . The decision was issued and sent to the first applicant on DATE .

On DATE ORG dismissed the complaint made by the first applicant on DATE about the municipality ’s decision . That decision was issued on DATE .

By letter of DATE the first applicant informed ORG that he intended to pursue his complaint lodged on DATE regarding the ORG ’s decision in person , his counsel having informed him that his complaint had no sufficient prospects of success .

On DATE ORG ( PERSON ) , having held a hearing on DATE in which it heard a witness and inspected the locus in quo , dismissed the ORG complaint . It noted that the first applicant , following doubts expressed by it regarding his standing in the proceedings , now brought the complaint both on his own behalf and on behalf of CARDINAL further joint owners ( CARDINAL of whom are applicants before this Court ) . The latter had also authorised the previous proceedings instituted by the first applicant alone ( a written authorisation dated DATE was submitted in the hearing ) . ORG found that the municipality ’s decision not to incorporate the applicants’ plot of land into an area designated as building land had not been arbitrary , particularly when compared to the classification of other plots of land in the land development plan . The applicants’ plot of land had not previously been in an area classified as building land and was not suitable for construction for lack of water installations .

By submissions dated DATE , which were received at ORG ) on DATE , the applicants lodged a constitutional complaint with ORG in respect of the decision taken by ORG . Relying on the principles of legality and proportionality , the prohibition of arbitrariness and the right to property , they argued , in particular , that their plot of land , designated as non - building land , had been treated less favourably than other plots of land in a comparable situation .

The final deliberations in private fixed for DATE had to be cancelled as , following the withdrawal of several judges , there was an insufficient number of judges available to hear the case .

NORP In DATE and DATE both the first applicant and GPE informed ORG that they had entered into negotiations following which the constitutional complaint might later be withdrawn . ORG deliberations in private fixed for DATE were accordingly cancelled . On DATE the Municipality informed that court that it had included a part of the applicants’ plot of land in the area designated as building land . The applicants did not , however , withdraw their constitutional complaint thereupon .

By submissions dated DATE and CARDINAL DATE the ORG new counsel requested ORG to join the ORG complaint to that of PERSON and to hold a hearing . They further submitted that their right to an independent and impartial tribunal established by law under LAW had been breached in that the relevant provisions of LAW ( Gemeindegesetz ) did not clearly determine the body competent to decide on land development plans and as the citizens had adopted the plan . The land development plan of GPE was void as it had been set up in violation of the provisions for the protection of property . Furthermore , their right to property under LAW no . CARDINAL had been breached as the relevant provisions of LAW ( Baugesetz ) were not a sufficiently clear legal basis for the adoption of land development plans which interfered with the right to property . The adoption of the land development plan at issue had excluded the applicants’ plot of land from the area designated as building land and amounted to an illegal and arbitrary restriction of the use of their property without payment of compensation .

On DATE ORG , having deliberated in private , decided to adjourn its decision in view of the voluminous observations and requests to take evidence submitted by the applicants’ counsel DATE .

On DATE ORG , having deliberated in private , refused to join the ORG complaint to that of PERSON and , taking into consideration the ORG request made DATE , adjourned its decision and decided to hold a public hearing .

On CARDINAL DATE ORG held a public hearing . In its deliberations ( in private ) , it then decided to dismiss as inadmissible the applicants’ request to declare void the vote of CARDINAL and DATE in GPE as the applicants had failed to lodge a separate complaint in respect of that vote with the Government . It further rejected the remainder of the applicants’ complaints as ill - founded ( case no . PERSON ) .

ORG found that there had been no violation of the applicants’ constitutional right to equality or of the prohibition of arbitrariness as it had not been unreasonable not to include the applicants’ entire plot of land in an area designated as building land . Nor had the applicants’ right to property been violated . The refusal to grant the applicants a privilege by not including their plot of land in an area designated as building land did not interfere with their property rights .

On DATE ORG judgment was served on the applicants’ counsel .

In a judgment adopted on DATE concerning a complaint brought by PERSON , ORG held that LAW had been breached in the proceedings before it ( file no . PERSON ) . ORG found that the length of the proceedings at issue , which equally concerned the land development plan of GPE and had been pending for DATE and DATE before it , had been excessive . The fact that PERSON had repeatedly asked to adjourn the proceedings shortly before the date fixed for the final deliberations did not justify the duration of the proceedings , in particular because ORG had remained inactive for a longer period of time after having held an oral hearing .


Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

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

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

The applicant ’s wife died on DATE . On CARDINAL DATE the applicant applied for widows’ benefits . On DATE the applicant was informed that his claim had been disallowed as he was not a woman .

The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .

The applicant ceased to be entitled to child benefit in DATE and therefore was not in receipt of child benefit at the time of his claim .

The domestic law relevant to this application is set out in PERSON v. the GPE , no . CARDINAL , § § DATE , ORG CARDINAL-IV and Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .


Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention;Release pending trial;Trial within a reasonable time);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review;Review of lawfulness of detention);Pecuniary and non-pecuniary damage - award

András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested on charges of a series of car thefts . In the prosecution ’s ensuing motion to have him detained on remand , the dangers of absconding , collusion and repetition of crime were referred to .

The defence argued that there was no reasonable suspicion that the applicant had indeed committed an offence . Moreover , since he had a settled life in GPE , the applicant – who was the father of a minor child and had regular income out of which he was supporting his parents and was paying a mortgage DATE was unlikely to abscond . In another criminal case conducted against him , he had attended all the hearings and had never attempted to frustrate the procedure . In the instant case , all evidence having already been seized , it was not plausible that he would interfere with the witnesses or repeat any crime . Against this background , his pre - trial detention was not justified and should be substituted , if necessary at all , by a less coercive measure .

On DATE ORG ordered the applicant ’s detention on remand , reiterating in essence the reasons in the prosecution ’s motion .

On DATE ORG rejected the applicant ’s appeal . This court was satisfied that there was reasonable suspicion against the applicant . It pointed out that no actual assessment of that evidence could be done in the remand proceedings because that would amount to usurping the powers of the trial court . ORG moreover held that the fact that the applicant had made preparations to buy property abroad was sufficient to substantiate the danger of absconding . Moreover , since there was another prosecution under way , the court held that the applicant might have a criminal lifestyle , a predisposition to repetition of crime . The court went on to state that “ in the present phase of the proceedings , the controversies referred to by the defence are not capable of fully eliminating the reasonable suspicion ” of the applicant ’s having committed a crime .

The applicant ’s pre - trial detention was repeatedly prolonged at the statutory intervals . In these proceedings , the arguments of the defence remained largely the same , and so did the findings of the courts . The applicant ’s requests for release , if necessary on bail , were to no avail .

On DATE , CARDINAL and DATE and DATE the applicant complained to the authorities that he had not been granted access to the evidence underlying his detention . These complaints were all rejected , although the courts did not specify that such an access had actually been granted .

Meanwhile , on DATE the applicant submitted to the authorities a psychiatric opinion , according to which he suffered from a personality disorder , including fear of crowds and of being locked up , which was susceptible to deterioration due to detention .

A further expert opinion issued on DATE specified that the applicant had suffered a sexual assault from fellow inmates while in detention , which had aggravated his psychological imbalance .

Meanwhile , a further prolongation order , valid until DATE , was issued on DATE . However , the applicant was not released on DATE , because the holding facility had received a mistyped notification ordering his detention until CARDINAL DATE rather than CARDINAL DATE . On DATE the first - instance court corrected its order of DATE . On appeal , on DATE ORG reversed the latter decision , holding that , although there had obviously been a typing mistake , the first - instance court could not correct the operative part of its order and that this matter was subject to a reversal within the jurisdiction of ORG . It further reiterated the consideration that no assessment of the evidence giving rise to the reasonable suspicion against the applicant could be done in the remand proceedings .

On DATE the applicant filed a request for release . This was rejected by ORG . In his appeal , he stressed that his tolerance of detention had diminished on account of the psychological problems he had . On DATE ORG rejected the appeal , being satisfied that the applicant ’s condition could be properly treated within the penitentiary health system . In his further complaints , the applicant ’s lawyer emphasised that the applicant needed to be heavily medicated , because of which he could not be validly interrogated , and the resultant situation ran counter to both the applicant ’s rights and the interests of the investigation .

NORP The applicant ’s pre - trial detention continued until DATE . The defence repeatedly made references to the absence of concrete elements underlying a reasonable suspicion against the applicant and to his personal circumstances not in the least warranting his continued detention . The applicant stated that the courts had rejected these arguments in rather stereotyped decisions .

On CARDINAL DATE ORG replaced the applicant ’s detention with house arrest . It held that the danger of absconding had lessened to an extent that house arrest was then sufficient , especially in view of the indecent assault the applicant had suffered from fellow inmates . It also took into account the time that had elapsed , the applicant ’s settled family and personal circumstances , and the fact that his health had seriously deteriorated .

On DATE the applicant ’s house arrest was lifted and replaced with a restriction on leaving GPE ( as of QUANTITY DATE , on leaving GPE ) . On DATE all restrictions on the applicant ’s personal liberty were lifted .

The applicant submitted that an alleged accomplice , Mr Á. , although he had previously absconded , had no legal income or employment and had no minor children , had been released on bail in DATE – in the applicant ’s view simply due to the fact that , unlike him , Mr PERSON had confessed to the crime with which he was charged .

A bill of indictment against the applicant and CARDINAL co - defendants was filed with ORG on DATE .

The trial of the case is pending .

Act no . ORG of DATE on LAW provides as follows :

“ ( CARDINAL ) At the session the party [ that is , the prosecution ] having submitted the motion [ on ordering or prolonging pre - trial detention ] shall present the evidence substantiating the motion in writing or orally . Those present shall be granted the opportunity to examine – within the limits set forth in section CARDINAL – the evidence of the party having submitted the motion . If the notified party does not attend the session but had submitted his observations in writing , this document shall be presented by the investigating judge . ”

“ ( CARDINAL ) Any person having the right to be present at an investigatory action may forthwith inspect the TIME taken .

( CARDINAL ) The suspect , the counsel for the defence and the victim may inspect the expert opinion during the investigation as well , but they may only inspect other documents if this does not injure the interests of the investigation .

( CARDINAL ) The suspect and the counsel for the defence shall be entitled to receive a copy of the documents they may inspect .

( CARDINAL ) The copy of the documents produced , obtained , filed or attached in the course of the investigation and containing the testimony or personal data of the victim or the witness shall not indicate the personal data of either the victim or the witness . No copy may be issued of the draft decisions of the prosecutor or the investigating authority . No copy may be issued of the documents created in the course of communications between the prosecutor and the investigating authority pursuant to sections CARDINAL and CARDINAL , except for the documents that contain the legal standpoint of the prosecutor and the investigating authority in relation to the case DATE including particularly the document containing the prosecutor ’s instruction concerning the conduct of the investigation , provided that the specific investigation was conducted DATE provided that this does not interfere with the interests of the investigation . ”


The applicant , ORG “ PERSON ” , is a NORP company that is registered in GPE . The company belongs to a private entrepreneur Mr PERSON , born in DATE and residing in GPE .

Since DATE the applicant had been making plans for the construction of a building containing CARDINAL apartments on QUANTITY of land situated in the village of GPE , in LOC of the PERSON region . It alleged that it received all the necessary construction permits and concluded an agreement with the PMK-CARDINAL company ( a private company ; “ PMK-CARDINAL ” ) for construction of this building . On DATE ORG declared null and void the construction contract of CARDINAL DATE concluded between the applicant and the PMK-CARDINAL ( PMK-CARDINAL was later reorganised into the construction company “ ORG ” ) .

The applicant alleges that from DATE it was allegedly persecuted by the NORP authorities for its attempt to construct the building . Allegedly as a result of this persecution , PMK-CARDINAL demolished the foundation of the building it was supposed to construct .

In DATE the applicant was a respondent and / or plaintiff in unsuccessful litigation before different courts about the building . It did not provide a full account of the litigation , and submitted that the only proceedings of which it complains were the proceedings initiated by it on DATE before the Khmelnytsky Regional Commercial Court ( case no . CARDINAL ) . These proceedings were instituted by the applicant against the PMK-CARDINAL . However , on DATE the ORG ( “ ORG ” ) , changed the respondent to the construction company “ LOC ” ( hereinafter the “ respondent ” ) as the successor of PMK-CARDINAL . The applicant sought restitutio in integrum . In particular , it claimed that , as the respondent had demolished the building ’s foundations constructed by PMK-CARDINAL , it was obliged to rebuild it .

On DATE the ORG rejected the applicant ’s claims as the events about which the applicant complained dated back to DATE . It therefore considered that they were lodged outside the DATE statutory time - limit for the introduction of civil claims , envisaged by Article CARDINAL of LAW .

On DATE the L’viv ORG of Appeal rejected the applicant ’s appeal as being unsubstantiated and upheld the judgment of DATE .

On DATE the ORG quashed the aforementioned judgment of DATE and the ruling of DATE and remitted the case for a fresh consideration to ORG .

On DATE the ORG ruled that it had jurisdiction over the applicant ’s case . In the course of the new proceedings before ORG , the applicant asked the court to extend the DATE limitation period for lodging its claims against the respondent . It also requested the court to suspend or temporarily terminate the proceedings in its case in view of the criminal investigation pending against the respondent ’s director . It lodged additional claims for compensation against the respondent . Initially , the applicant claimed that the damage amounted to ORG DATE , CARDINAL . Later , it increased its claims to UAH PERSON .

On DATE , DATE and DATE ORG ordered the applicant to produce substantiation for the amounts it claimed in damages . It also required the applicant to pay the ORG tax ( державне мито ) for the introduction of its additional claims .

On DATE the ORG rejected all of the applicant ’s motions and requests as unsubstantiated . As to the increase in the applicant ’s claims , ORG stated that the applicant had failed to substantiate or pay the ORG tax on them . It further decided that the applicant ’s claim should be rejected as it was lodged outside the statutory DATE limitation period ( LAW ) .

On DATE ORG rejected the applicant ’s appeal as unsubstantiated , and upheld the judgment of DATE . In particular , it referred to ORG DATE and CARDINAL of LAW that envisaged a DATE limitation period for lodging claims for damages .

The applicant appealed in cassation directly to ORG ( ORG ) .

On DATE the Higher Commercial Court rejected the cassation appeal as it should have been lodged through the first instance or appeal court which had considered the case and where the case file was . The court referred to LAW .

On DATE the applicant re - lodged its appeal in cassation .

On DATE the Higher Commercial Court rejected the applicant ’s cassation appeal as it was lodged outside the DATE time - limit allowed for the introduction of such appeals ( LAW ) . It also held that the incorrect introduction of the cassation appeal by the applicant does not suspend the DATE time - limit envisaged by LAW . As a result , the cassation appeal was returned to the applicant .

On DATE the applicant re - lodged its appeal in cassation for the third time . It also requested renewal of the time - limit for the introduction of the cassation appeal .

On DATE the ORG rejected the applicant ’s request to extend the time - limit as unsubstantiated . It also stated , inter alia , that the time - limit for lodging an appeal in cassation was DATE , but the applicant had lodged its appeal on DATE , i.e. out of time . Furthermore , the ORG reiterated that , under LAW , the refusals of CARDINAL DATE and DATE to allow the applicant ’s cassation appeal had no influence on the DATE time - limit for the introduction of an appeal with ORG . Moreover , LAW clearly states that cassation appeals with ORG had to be addressed to it through the court of first instance or the court of appeal . As a result , the cassation appeal and the court fees were returned to the applicant .

On DATE and DATE the ORG informed the applicant , by letters , that its complaints about the partiality and lack of independence of the judges who rejected the applicant ’s cassation appeals were unsubstantiated . They also informed the applicant that it could appeal in cassation against the rulings of ORG to ORG .

On DATE the applicant lodged a cassation appeal against the ruling of CARDINAL May CARDINAL of ORG with ORG ( ORG ) .

On DATE ORG refused to initiate cassation proceedings .

B. Relevant domestic law

LAW of GPE , DATE

Article CARDINAL

“ In GPE the system of courts of general jurisdiction is formed in accordance with the territorial principle and the principle of specialisation .

ORG is the highest judicial body in the system of courts of general jurisdiction .

The respective high courts are the highest judicial bodies of specialised courts .

Courts of appeal and local courts shall operate in accordance with the law .

The creation of extraordinary and special courts shall not be permitted . ”

Law of GPE on ORG of DATE

Section CARDINAL

ORG - the highest judicial body

“ CARDINAL . ORG of GPE is the highest judicial body within the system of courts of general jurisdiction ...

ORG of GPE :

CARDINAL ) NORP examines in cassation proceedings the decisions of courts of general jurisdiction in cases which , in accordance with procedural law , fall within its jurisdiction and / or re - examines all cases considered by courts of general jurisdiction ... ”

Transitional Provisions

“ CARDINAL . This law shall become effective from the date of its publication , save for Article CARDINAL - CARDINAL [ of the LAW ] , which shall become effective from DATE .

... CARDINAL . Decisions of the judicial divisions of ORG of GPE or of the ORG of ORG of GPE that were not challenged by way of supervisory review proceedings before this PERSON entered into force , as well as resolutions of ORG of GPE , shall be final but may be appealed against to ORG of GPE on the basis of and pursuant to the procedure prescribed by LAW of GPE . ”

“ The appeal in cassation ( petition for appeal in cassation ) shall be lodged with ORG through the court of first instance or the commercial court of appeal , which gave a contested judgment or resolution .

The first instance or commercial court of appeal , that has adopted a contested judgment or resolution , shall transfer the appeal in cassation ( petition for appeal in cassation ) together with the case file to ORG of GPE within DATE from the moment of its receipt . ”

“ Appeals in cassation ( petition for appeal in cassation ) shall be lodged within DATE from the date of entry into force of the first instance court ’s judgment or the resolution of the court of appeal . ”

“ The parties to a case as well as the Prosecutor General of GPE have the right to lodge with ORG of GPE a cassation appeal against the resolution [ or ruling ] of ORG of GPE adopted following the review of a decision of a first instance commercial court , that has entered into force , or a resolution of ORG [ adopted as a result of its review ] . ”

“ ORG of GPE reviews cassation appeals lodged against the resolutions [ or rulings ] of ORG of GPE if they are lodged :

CARDINAL ) NORP on the basis of the application by ORG of GPE of a law or normative act which contravenes LAW ;

CARDINAL ) where a decision contravenes decisions of ORG of GPE or of a higher court of a different specialisation on the issue of the application of the norms of substantive law ;

CARDINAL ) where ORG of GPE has applied the same provision of the law or any other normative act differently in a similar case ;

CARDINAL - CARDINAL ) due to the inconsistency of the resolutions [ or rulings ] with the international treaties of GPE approved by the PERSON of GPE ;

CARDINAL ) where an international judicial body whose jurisdiction is recognised by GPE finds that a resolution has violated the international obligations of GPE . ”

“ The cassation appeal ( petition ) of the Prosecutor General of GPE against the resolution of the Higher Commercial Court shall be lodged within DATE from the moment of its [ the resolution ’s ] adoption .

In the event that the existence of the grounds for appeal in cassation after this period has ended , the ORG shall be obliged to rule that it has jurisdiction over the cassation appeal ( petition ) .

The cassation appeal ( petition ) of the Prosecutor General of GPE against the resolution of ORG of GPE shall be lodged with ORG through ORG .

The Higher Commercial Court shall transfer the cassation appeal ( petition ) together with the case file to ORG within DATE from the moment of its receipt . ”

“ Proceedings for a review in cassation of a resolution [ or ruling ] of ORG of GPE by ORG of GPE shall be initiated on the basis of a decision taken by CARDINAL judge in the course of the hearing of the chamber in commercial cases composed of CARDINAL judges and shall be considered within DATE from the moment of arrival of the cassation appeal or petition .

The resolution or a ruling of the Higher Commercial Court shall be reviewed by the judges of the commercial cases chamber of ORG in the course of a hearing .

The resolution or a ruling of ORG of GPE shall be reviewed in cassation on the basis of the rules for consideration of the case in the first - instance commercial court , save for

“ ORG of GPE , following consideration of the appeal in cassation by ORG GPE against a resolution [ or ruling ] of ORG of GPE , is entitled to :

CARDINAL ) NORP leave the resolution [ or ruling ] unchanged and dismiss the appeal ;

CARDINAL ) NORP quash the resolution [ or ruling ] and remit the case to the first - instance court for further consideration or quash the ruling and remit the case for further consideration to ORG ;

CARDINAL ) NORP quash the resolution [ or ruling ] and terminate the proceedings in the case . ”

“ The resolutions [ or rulings ] of ORG of GPE shall be quashed if they contravene LAW , international treaties agreed as binding by PERSON of GPE , or if the substantive law has been misapplied otherwise . ”

“ ... A resolution of ORG of GPE shall be final and shall not be subject to appeal . ”

“ ... Resolutions of ORG of GPE , following a re - examination of the case on the basis of an appeal in cassation against the resolution [ or ruling ] of ORG of GPE shall not include directions as to the admissibility or inadmissibility of evidence , the superiority of CARDINAL type of evidence over another , the norms of substantive law which shall be applicable or the kind of decision that shall be adopted as a result of the further consideration of the case . ”


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

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

In DATE the applicant requested to have a social security card for his wife . This request was refused on the grounds that photography showing his wife carrying an NORP scarf was not acceptable for the social security identity cards .

On DATE ORG ( Yüksek Askeri Şura ) decided to discharge the applicant from the army on grounds of acts of “ insubordination and immoral conduct ” pursuant to LAW .

The Government submit the following in the light of the intelligence reports concerning the applicant :

The applicant , a non - commissioned officer , was a member of the PERSON sect . He had an antisocial character and his wife carried an NORP scarf . He adopted extreme religious ideology . His superiors considered the applicant as an undisciplined and insubordinate soldier .

A committee of CARDINAL members of the armed forces concluded , in the light of the findings of the above intelligence reports , that the applicant had breached military discipline and that he should be discharged from the army . Subsequently , ORG based its decision on that opinion .

The relevant provisions of the LAW are as follows :

“ None of the rights and freedoms set forth in the LAW may be exercised with the aim of undermining the territorial integrity of the ORG or the indivisible unity of its people , imperilling the existence of ORG and the Republic , abolishing fundamental rights and freedoms , handing over control of the ORG to a single individual or group or bringing about the dominance of CARDINAL social class over the others , establishing discrimination on the grounds of language , race , religion or adherence to a religious sect or setting up by any other means a ORG order based on such beliefs and opinions . ”

“ Everyone shall have the right to freedom of conscience , faith and religious belief . Prayers , worship and religious services shall be conducted freely , provided that they do not violate the provisions of LAW . No one shall be compelled to participate in prayers , worship or religious services or to reveal his religious beliefs and convictions ; nor shall he be censured or prosecuted because of his religious beliefs or convictions .

No one may exploit or abuse religion , religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social , economic , political or legal order of the ORG to be based on religious precepts , even if only in part , or for the purpose of securing political or personal influence thereby . ”

“ All acts or decisions of the administration are subject to judicial review

Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of ORG shall not be subject to judicial review .

Article CARDINAL § § CARDINAL , CARDINAL and DATE of LAW provides that a disciplinary action can not be imposed to the civil servants provided that that the right to defence is respected . Moreover , it lays out that the disciplinary actions , other that the warnings and the reprimands are subject to legal control . The provisions concerning the soldiers are reserved . LAW on ORG stipulates that the disciplinary actions imposed to the soldiers are not subject to legal control .

Section CARDINAL ( c ) of ORG provides :

“ Irrespective of length of service , servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on CARDINAL of the grounds set out below , as established in CARDINAL or more documents drawn up during their service in the last military rank they held , shall be subject to the provisions of LAW .

Where their conduct and attitude reveal that they have adopted unlawful opinions . ”

Section CARDINAL ( c ) of LAW provides :

“ Irrespective of length of service , servicemen whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of LAW . LAW shall lay down which authorities have jurisdiction to commence proceedings , to examine , monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings . A decision of ORG is required to discharge an officer whose case has been submitted by ORG to ORG . ”

Section CARDINAL ( b ) of LAW provides :

“ ( b ) Discharge from the army for the acts of insubordination and immoral conduct :

Notwithstanding the seniority in the service , the non - commissioned officers whose maintenance is considered to be inappropriate for the acts of insubordination and immoral conduct are subject to PERSON on ORG . The investigation , examination and follow - up of the notation reports and the formalities and the competent authorities fulfilling these duties are subject to the provisions of The Regulations on assessment of officers and non - commissioned officers . The General Staff determines which non - commissioned ORG cases concerning their discharge from the army should be examined by ORG . ”

LAW on assessment of officers and non - commissioned officers provides :

“ Irrespective of length of service , the compulsory retirement procedure shall be applied to all servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on CARDINAL of the grounds set out below , as established in CARDINAL or more documents drawn up during their service in the last military rank they held :

( e ) where by his conduct and attitude the serviceman concerned has provided evidence that he holds unlawful , subversive , separatist , fundamentalist and ideological political opinions or takes an active part in the propagation of such opinions . ”


Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

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

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

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

During TIME DATE the applicant ’s DATE house in GPE was blown up by an unknown perpetrator .

On DATE the LAW to LAW ( Zakon o izmjeni PERSON o obveznim odnosima , ORG no . CARDINAL/CARDINAL of CARDINAL DATE - “ the DATE LAW ) entered into force . It repealed section CARDINAL of LAW - which provided that the ORG was liable for damage resulting from “ acts of violence or terrorist acts ” - and stayed all proceedings instituted on the basis of that provision , pending enactment of new legislation .

On DATE the applicant and her husband brought a civil action against the ORG in ORG ( PERSON ) seeking CARDINAL NORP kunas ( HRK ) as compensation for pecuniary damage sustained as a result of the destruction of their house , with the accrued statutory default interest .

On DATE ORG gave judgment dismissing the claim of the applicant and her husband and ordered them to reimburse the ORG the costs of the proceedings in the amount of HRK CARDINAL,CARDINAL . It held that after section CARDINAL of LAW had been repealed there was no longer a legal basis for the State to be held liable for damage resulting from terrorist acts .

The applicant submits that she paid the costs of the proceedings to the ORG , as ordered by ORG . The Government submitted that the applicant had never paid the costs at issue .

On DATE the applicant and her husband appealed to ORG ( Županijski sud u ORG ) against that judgment , arguing that ORG had wrongly applied the relevant substantive law and erred in their assessment of the facts of the case . They did not forward any arguments as to the costs of the proceedings .

In DATE the applicant ’s husband died .

On DATE the Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations ( Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija , ORG no . CARDINAL ) of DATE – “ the Liability Act DATE ” ) entered into force . It provided that the ORG was liable in tort for damage caused by death , bodily injury or impairment of health resulting from terrorist acts , whilst damage to property was to be compensated through reconstruction assistance , obtainable before the competent administrative authorities , under LAW . The LAW also provided that all proceedings stayed on the basis of LAW were to be resumed in accordance with its provisions .

NORP On DATE ORG dismissed the appeal by the applicant and her husband and upheld the first - instance judgment .

On DATE the applicant lodged an appeal on points of law with ORG . She argued that the lower courts had erred in the application of both procedural and substantive law when they had dismissed her compensation claim . She did not forward any arguments concerning the costs of the proceedings .

On DATE ORG dismissed the appeal .

On DATE the applicant lodged a constitutional complaint against ORG judgment , alleging , inter alia , violations of her constitutional rights to equality , equality before the law and ownership . Again , she did not forward any arguments concerning the cost of the proceedings .

On DATE ORG ( Ustavni sud PERSON ) dismissed the applicant ’s constitutional complaint and served its decision on her representative on DATE .


CASE OF STANDARD VERLAGSGESELLSCHAFT MBH (No.2) v. AUSTRIA

The applicant company is the owner of the DATE newspaper “ FAC ” .

GPE ) is the majority shareholder of ORG ( PERSON - “ the KELAG ” ) .

On DATE the ORG invited all shareholders to the general meeting on DATE . CARDINAL item on the agenda was the dismissal and re - election of the corporation 's supervisory board ( GPE ) .

For the meeting of ORG ( PERSON ) of DATE , PERSON , the official dealing with financial matters at the material time , prepared a motion inviting ORG to nominate specific persons to the corporation 's supervisory board .

He retracted this motion before the meeting as , at the request of PERSON PERSON , Regional Governor ( PERSON ) of PERSON , he had received a legal expert opinion issued by the expert PERSON According to this opinion , GPE had no right to nominate the members of the ORG supervisory board as the members had to be elected . The representative of GPE could propose candidates and exercise the voting right in the general meeting of the KELAG without a prior decision by ORG .

Mr PERSON had further informed Mr GPE that ORG dealing with constitutional matters at ORG had approved this way of proceeding . Mr PERSON further commissioned an expert opinion by ORG . This opinion , issued on DATE , stated that an interpretation of the relevant provisions did not lead to an unequivocal result .

NORP In the meantime , Mr GPE – despite the protest of the socialist members of ORG – gave authority to PERSON PERSON to represent GPE in the general meeting of the KELAG . Mr PERSON subsequently represented GPE at the said general meeting on DATE and exercised the voting right without having previously obtained a decision by ORG .

On DATE , at the request of ORG ( “ the ORG ” ) PERSON , a professor of law of ORG , issued a further expert opinion of CARDINAL pages concerning the question of “ nomination of members to the ORG 's supervisory board by the Regional Governor of LOC ” .

NORP This expert opinion came to the conclusion that the election of the supervisory board of the KELAG by the Regional Governor without a previous decision by ORG was not in accordance with federal constitutional law , regional constitutional law and ORG Rules of Procedure . The opinion finally mentioned the possibility of impeachment of members of ORG before ORG by majority vote of ORG ) under LAW ( Bundes - Verfassungsgesetz ) for having culpably breached the law . ORG decision in impeachment proceedings consisted of either the exoneration of the official in question or a finding against him or her which implied dismissal of the person from office . The possibility for ORG to limit its judgment in the event of minor infringements to a finding that there has been a breach of the law would not exist in the present case as impeachment had to be filed under LAW CARDINAL lit d which did not provide for this alternative .

On DATE the applicant company published an article on its front page of “ Der Standard ” which read as follows :

“ PERSON has breached the LAW

According to an expert opinion commissioned by the SPÖ at FAC , the Regional Governor PERSON has committed a ' breach of law ' when appointing the supervisory board of the ORG . His handling of ORG Rules of Procedure would be ' illicit , illegal and unconstitutional ' . The ORG [ ORG ] nevertheless does not want to support an impeachment . It invites PERSON to correct the KELAG decisions concerning the personnel , which the ORG [ ORG ] categorical refuses : ' We refuse to be blackmailed ' . ”

The article continued on page CARDINAL under the same heading with the subtitle : “ Expert opinion of professor in GPE accuses the Regional Governor of deliberate misguidance ” . It stated as follows :

“ The NORP Regional Governor , PERSON , by acting on his own when appointing the members of the ORG supervisory board , has clearly committed a ' breach of the laws and LAW . This is the conclusion reached by A.S [ name in full ] , professor at ORG , in his expert opinion on constitutional matters which had been commissioned by the NORP SPÖ . PERSON , by acting on his own authority , has violated ORG and has , thus , breached the law and LAW . The expert opinion mentions as an aggravating factor that PERSON has ' deliberately mislead ORG and ignored LAW and ORG Rules of Procedure ' . According to the expert opinion it is therefore possible to institute impeachment proceedings against PERSON . If ORG convicted PERSON , he would be threatened with dismissal from office . The ORG leader PERSON has now given Mr PERSON an ultimatum : either the supervisory board should be appointed afresh by ORG as a whole or there should be a tripartite agreement on transforming PERSON into a holding company . Otherwise , the ORG would institute impeachment proceedings against Mr PERSON before the elections to ORG . Mr PERSON also called on the ÖVP not to ' cover up ' Mr PERSON 's breach of the law . In ORG the ORG reacted vehemently to the report . The leader of the ORG 's parliamentary group , PERSON , announced that a second opinion would be commissioned . Mr PERSON himself could not hide his anxiety . He leaned back in a relaxed fashion only when the leader of the ORG 's parliamentary group , PERSON , made clear that the ORG would not support his impeachment . Although the ORG intends to await the findings of an ' independent ' expert opinion , PERSON nonetheless hinted at the party 's strategy : ' Not punishment but rectification of PERSON 's breach of the law . ' In so doing , he both foiled his colleague PERSON and confirmed the viewpoint that there is a ' tacit coalition ' between the ORG and the ORG . '

The article was followed by a further text in a small box headed “ [ The ] LAW stands above stock corporation law ” ( LAW steht über FAC ) . This text explained that PERSON had prepared an act of Government ( PERSON ) which Mr PERSON had , however , retracted as being an “ error ” . The expert opinion had found that this conduct amounted to deliberate misguidance of ORG . The article further stated that the expert GPE did not accept Mr PERSON 's reference to stock corporation law .

On DATE Mr PERSON instituted proceedings for forfeiture ( GPE ) of the article and publication of the judgment under LAW of LAW ( Mediengesetz ) with ORG ( PERSON ) .

On DATE ORG found that the article at issue , by stating that Mr PERSON had deliberately mislead ORG and had acted in breach of ORG Rule of Procedure and LAW , fulfilled the elements of the offence of defamation ( üble GPE ) under LAW ) . It , therefore , ordered the applicant company to black out the impugned statements in the issues still to be disseminated and the publication of the judgment under sections DATE and CARDINAL of LAW . It further ordered the applicant company to pay the costs of Mr PERSON 's counsel .

At the trial the court heard the counsel of the applicant company , Mr PERSON and PERSON GPE . It dismissed the applicant company 's request to hear all other members of ORG as being irrelevant for the proceedings at issue .

The court considered the statements that Mr PERSON had breached the LAW , had deliberately mislead ORG and had acted in breach of the law as statements of fact for which the applicant company had failed to supply sufficient proof . The court noted that there was , in particular , nothing to indicate that Mr PERSON had deliberately misled ORG which , in itself , was a sufficient reason for the ordered forfeiture . The fact whether or not Mr PERSON had acted in breach of the LAW was a matter which had to be decided by ORG .

The applicant company appealed against this judgment . It submitted inter alia that the statements at issue were value judgments , based on the facts established by the expert opinion of the professor of ORG , and contributed to the discussion of a question of public interest .

On DATE ORG ( Oberlandesgericht ) , having the expert opinion of PERSON before it as evidence , dismissed the applicant 's appeal . It noted that the expert opinion had to be considered as an admissible legal assessment of uncontested facts . The article at issue had , however , not simply reproduced the opinion given by the expert but had used it for an independent attack on PERSON reputation . The court noted in this regard that the article had not placed the expert opinion in its context , namely that of a legal dispute , but had presented it as an irrevocable verdict on PERSON . The court referred in particular to the wording of the article 's headings . It further noted that the article had not published any comment of PERSON and had not mentioned the existence of the opinion issued by the other expert Q. Furthermore , the article contained statements which were not supported by the expert opinion , namely that Mr PERSON had deliberately misled ORG and the reference to the possible impeachment of PERSON PERSON . The court noted in the latter regard that the expert opinion had merely mentioned the abstract possibility of impeachment of a member of ORG who , in the opinion of the majority of the members of ORG , had culpably breached the law . The court finally noted that ORG order to black out the impugned statements did not replace but complemented an order of forfeiture of the relevant issues . This judgment was served on the applicant company 's counsel on DATE .

On DATE Mr PERSON brought injunction proceedings under LAW ( ORG ) against the applicant company .

On DATE ORG ( ORG ) , referring to the judgments of the courts in the proceedings under LAW , granted the injunction and ordered the applicant to revoke the statements that Mr PERSON , by appointing the members of the ORG supervisory board , had deliberately misled ORG and had acted in breach of ORG rules of procedure and LAW . It further ordered the applicant company to pay the costs of Mr PERSON 's counsel .

The court dismissed the applicant company 's argument that it could not be held responsible for the shortcomings of the article at issue since that article had been written by a journalist who was not trained in law . The journalist had relied on press releases prepared by ORG which summarised the expert opinion incorrectly . The court found that the applicant company had not complied with its obligation of journalistic diligence as it had failed to consult the available expert opinion .

On DATE ORG ( Oberlandesgericht ) dismissed the applicant company 's appeal . This decision was served on the applicant company 's counsel on DATE .

Section CARDINAL of LAW provides for the strict liability of the publisher in cases of defamation ; the victim can thus claim damages from him . In this context “ defamation ” has been defined in LAW ) , as follows :

“ CARDINAL . Anybody who , in such a way that it may be noticed by a third person , attributes to another a contemptible characteristic or sentiment or accuses him of behaviour contrary to honour or morality and such as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding DATE or a fine ...

Anyone who commits this offence in a printed document , by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public , shall be liable to imprisonment not exceeding one year or a fine ...

NORP The person making the statement shall not be punished if it is proved to be true . In the case of the offence defined in paragraph CARDINAL he shall also not be liable if circumstances are established which gave him sufficient reason to believe that the statement was true . ”

Section CARDINAL § CARDINAL of LAW reads as follows :

“ Forfeiture shall be ordered in separate proceedings at the request of the public prosecutor or any other person entitled to bring claims if a publication in the media satisfies the objective definition of a criminal offence and if the prosecution of a particular person can not be secured or if conviction of such person is impossible on grounds precluding punishment , has not been requested or such a request has been withdrawn . If no punishment can be imposed in case of the offender having proved the truth , the defence of truth shall also be available to the owner ( publisher ) of the media product in question being the interested party ... ” .

Section CARDINAL of LAW deals with the publication of a judgment ( PERSON ) . It states inter alia that a criminal judgment concerning a media offence has , at the request of the prosecution , to order the publication of those parts of the judgment which are necessary to inform the public about the offence and the conviction . At the request of the prosecution , the publication of a judgment has to be ordered in separate proceedings , if statements falling within the objective definition of an offence have been made in the media and the prosecution of a specific person is not possible .

Section CARDINAL of LAW ( ORG ) provides as follows :

“ CARDINAL . Anybody who , due to defamation , suffered a damage or loss of profit , may claim compensation .

NORP The same applies if anyone is disseminating facts , which jeopardize another person 's reputation , gain or livelihood , the untruth of which was known or must have been known to him . In this case there is also a right to claim a revocation and the publication thereof ... ”


The applicant was born in DATE and lives in GPE .

In DATE ORG decided to expropriate a plot of land ( plot no . CARDINAL ) , measuring QUANTITY in the ORG area in ORG which belonged to the applicant . On DATE the amount of compensation for the expropriation was blocked in ORG , but the applicant never received this sum .

On DATE the applicant filed an action with ORG and requested increased compensation .

On DATE , while the case for increased compensation was pending , ORG informed ORG that they renounced their decision to expropriate the land in question . The applicant did not pursue her case and in DATE the first - instance court decided to discontinue the proceedings .

In DATE ORG brought an action before ORG and requested the transfer of the title deed to plot no . CARDINAL to the ORG . On DATE the court accepted the request . The applicant was not notified of the proceedings or of the judgment delivered by the first - instance court . On DATE the court 's decision was announced in a newspaper . Subsequently , on CARDINAL DATE the plot was registered in the name of the ORG .

On DATE , after having learned about the transfer of the title deed of plot no . CARDINAL to ORG , the applicant brought an action before ORG and requested compensation for the unlawful seizure of her property . She submitted , inter alia , that she had not been notified of the case lodged by ORG in DATE or of the judgment delivered by the first - instance court . She argued that the transfer of her title deed was therefore unlawful . In reply , ORG argued that as they had been in actual possession of the land since DATE , the applicant 's action for compensation had to be rejected as being time - barred .

During the proceedings , the first - instance court ordered an expert report in order to determine the value of the land in question . On DATE the first - instance court held an on - site inspection . It was observed that ORG had surrounded the plot in question with a fence . On DATE a committee of experts submitted a report to the first - instance court . In their report , the experts determined that the value of plot no . CARDINAL would be CARDINAL,CARDINAL,CARDINAL,CARDINAL NORP liras ( GPE ) ( MONEY ( ORG ) ) .

On DATE ORG dismissed the applicant 's case . It found that ORG had been in actual possession of plot no . CARDINAL since DATE and therefore held that the case was introduced out of the statutory timelimit as provided in LAW ( Law no . ORG ) .

On DATE ORG found the applicant 's grounds for appeal unfounded and upheld the judgment of the first - instance court . The applicant 's request for rectification was further rejected on DATE .

On DATE ORG annulled LAW no . ORG .

A full description of the domestic law may be found in GPE ( Çökmez ) and Others v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .