CASE OF ASSOCIATION FOR EUROPEAN INTEGRATION AND HUMAN RIGHTS AND EKIMDZHIEV v. BULGARIA

Violation of Art. 8;Violation of Art. 13;No violation of Art. 6-1;Non-pecuniary damage - claim dismissed;Costs and expenses award - Convention proceedings

One of the principal aims of the applicant association is the protection of human rights . The second applicant is a lawyer . His practice includes acting as counsel in civil and criminal cases in the courts in GPE and representing applicants in proceedings before ORG .

Their application is directed against LAW of DATE , a piece of legislation which presently regulates the use of special means of surveillance in GPE . The applicants do not aver that surveillance measures have in fact been ordered or implemented against them , nor that they have been indirectly involved in a surveillance measure directed against other persons . They contend that under the law as it stands they may be subjected to such measures at any point in time without any notification prior to , during , or after the said measures are applied .

The relevant provisions of the LAW of DATE are :

“ CARDINAL . The private life of citizens shall be inviolable . Everyone shall have the right to be protected against unlawful interferences with his private and family life and against encroachments on his honour , dignity and reputation .

No one may be spied on , photographed , filmed , recorded , or subjected to similar actions without his or her knowledge or despite his or her express disagreement , except in cases provided for by law . ”

“ The home shall be inviolable . No one may enter or remain in it without the consent of its inhabitant , except in the cases expressly specified by law . ”

“ CARDINAL . NORP The freedom and secret of correspondence and other communications shall be inviolable .

NORP This rule may be subject to exceptions only with the permission of the judicial authorities when necessary for uncovering or preventing serious offences . ”

“ ORG shall have the right to information from state bodies or agencies on any matter of legitimate interest to them , unless the information is a state secret or a secret protected by law , or affects the rights of others . ”

“ The judiciary shall be independent . In carrying out their duties the judges , the jurors , the prosecutors and the investigators shall have regard solely to the law . ”

The Special Surveillance Means Act of DATE ( „ Закон за специалните разузнавателни средства “ – “ the ORG ” ) , which presently is the principal legislative enactment regulating the use of special means of surveillance , was adopted in DATE . It underwent minor amendments in DATE and DATE , more extensive ones in DATE , and some further minor changes in DATE . Its essential provisions have however remained intact since its adoption and the account which follows is based on their present version .

The ORG governs the conditions for and the manner of use of special means of surveillance , as well as the control of their use and of the results obtained thereby ( section CARDINAL(CARDINAL ) ) . It defines special means of surveillance as technical devices which can be used for creating photographs , audio and video recordings and marked objects , as well as the methods for operating them ( section CARDINAL(CARDINAL ) ) .

By section CARDINAL(CARDINAL ) of the ORG , special means of surveillance may be used when necessary to prevent or uncover serious offences ( LAW § CARDINAL of LAW of DATE defines a “ serious ” offence as one punishable by DATE imprisonment ) , if the requisite intelligence can not be obtained through other means . LAW provides that special means of surveillance may also be used for activities relating to national security .

Special means of surveillance may be used against persons suspected , on the basis of the information available , of planning , committing , or having committed serious offences , or against persons who might be unwittingly involved in the above by the suspected perpetrators . Such means may also be used against persons and objects related with national security ( section CARDINAL(CARDINAL ) ) . Such means may also be used in respect of persons who have agreed to that in writing , to protect their lives or property ( section DATE ) ) .

NORP Only the following bodies may request the use of special means of surveillance and draw on the intelligence obtained thereby , in the spheres of their respective competencies : ( i ) the central “ Security ” and “ Police ” services of ORG , as well as the national and territorial directorates of that Ministry ; ( ii ) the “ Military Information ” and “ Military Police and Military CounterIntelligence ” services of ORG ; ( iii ) ORG ; ( iv ) ORG , ORG and the regional investigation services ; ( v ) the ORG , ORG , ORG , ORG , the appellate prosecutor 's offices , ORG and the regional and regionalmilitary prosecutor 's offices ( section CARDINAL(CARDINAL ) and ( CARDINAL ) ) .

The procedure for deploying special means of surveillance starts with a written application by the head of the respective service . The application must set out in detail the circumstances grounding the suspicion that a serious offence is being planned or committed or has been committed , so as to justify the use of surveillance . It must also fully describe the steps which have already been undertaken and the results of the hitherto inquiries or investigations . It has to contain information allowing the identification of the persons or objects to be subjected to surveillance , its duration , and the methods to be used . Finally , the application has to specify the name of the official to be informed of the results obtained ( section CARDINAL(CARDINAL ) ) .

The application is made to the president of ORG or of the respective regional court , or to a duly authorised deputy ( for military personnel the application is made to the president of the deputypresident of the respective military regional court ) who may issue a warrant ( section CARDINAL ) ) . If they refuse to issue a warrant , the application may be resubmitted to the president or a duly authorised deputy of the respective court of appeals ( section CARDINAL ) ) . The decision whether or not to issue a warrant must be taken immediately upon receipt of the application , and the originals of the application and of the warrant must be returned to the service which has made the application ( section CARDINAL(CARDINAL ) ) .

After the warrant is issued , the Minister of ORG or a deputyminister designated in writing by the Minister makes a written order for the deployment of special means of surveillance ( section CARDINAL ) . In urgent cases , this step of the procedure may be skipped and the deployment may start immediately upon the issue of the warrant ( section CARDINAL ) . However , in that case the Minister or the deputyminister must be informed without delay ( ibid . ) .

Section CARDINAL ) of the ORG provides for an exception to the procedure outlined above in cases where there is an immediate risk that a serious intentional offence may be committed or where there is an immediate threat to national security . In such cases , the Minister of ORG or a deputyminister designated by the Minister may order the deployment of special means of surveillance without a judicial warrant . The deployment of these means must be discontinued if the warrant is not issued within TIME ( section CARDINAL(CARDINAL ) ) . In that case , the president or the vicepresident of the respective court decides whether the material obtained is to be kept or destroyed ( ibid . ) . He or she may thus retrospectively validate the use of special means of surveillance ( section CARDINAL(CARDINAL ) ) .

NORP The Minister of ORG or a deputyminister authorised in writing may discontinue the use of special means of surveillance at any time before the planned end of the surveillance . In that case , the president or the vicepresident of the respective court must be informed in writing ( section CARDINAL ) .

The only services which are authorised to deploy special means of surveillance are the “ Operative and Technical Information ” , the “ ORG ” and the “ Protection of the Means of Communication ” directorates of ORG ( section CARDINAL(CARDINAL ) ) . However , ORG and the intelligence services of ORG may also deploy such means in the performance of their duties ( section CARDINAL ) ) .

Special means of surveillance may be used for a maximum of DATE ( section ORG ) ) . This time may , if necessary , be extended by the president or the vicepresident of the respective court for DATE , by a fresh warrant ( section CARDINAL(CARDINAL ) ) .

The use of special means of surveillance must be discontinued after the expiry of the timelimit set in the warrant , after the desired aims have been attained , or if the use of the means proves fruitless ( section CARDINAL(CARDINAL ) ) .

NORP The intelligence obtained by such means must be recorded ( section CARDINAL ) . It must then , immediately after being obtained , be put down in writing by the service which has in fact deployed the means ( section GPE ) ) . The resulting document , which must faithfully reflect the contents of the recordings , is sent to the body which has requested the use of such means , possibly along with photographs and recordings ( section PERSON ) , ( CARDINAL ) and ( CARDINAL ) ) . While the special means of surveillance are still being used , the original recordings must be kept at the service which has deployed them ( section CARDINAL ) ) .

If at the end of the period of authorised surveillance the sought intelligence has been obtained , the service which has deployed the means of surveillance draws up a note of physical evidence ( section DATE ) . The same is done if the sought intelligence has been obtained before the end of the period , pursuant to the written request of the body which has requested the measures ( section CARDINAL ) . Conversely , if the use of the means is fruitless , the body which has requested it advises in writing the service which deploys them that their use is to be discontinued . In that case no note of physical evidence is drawn up and the material obtained is destroyed ( section CARDINAL ) and ( CARDINAL ) ) .

The note of physical evidence must conform to the requirements of LAW ( section CARDINAL(CARDINAL ) ) . It has to be signed by the head of the service which has deployed the means ( section CARDINAL ) ) and refer to the application for their use , the order of the Minister or the deputyminister and the judicial warrant ( section CARDINAL ) ) . It has to specify the time and place of the use of the means , the types of devices and methods employed , the intelligence obtained , the textual reproduction of this intelligence , and the physical conditions under which the intelligence has been acquired ( section CARDINAL(CARDINAL ) ) . The raw data is part of the record ( section CARDINAL ) ) . The evidence thus obtained is kept by ORG pending the opening of a criminal investigation . After the opening of an investigation the evidence is kept by the respective judicial authorities ( section CARDINAL(CARDINAL ) and ( CARDINAL ) ) . The intelligence which is not used as evidence has to be destroyed by the directorate which has deployed the means within DATE and the destruction has to be recorded in TIME ( section ORG ) ) .

NORP If the special means of surveillance have yielded results outside the scope of the initial application for their use and if these results come within the purview of other bodies allowed to request the use of such means ( see paragraph CARDINAL above ) , the Minister of ORG or the duly authorised deputyminister must be notified immediately . He or she then decides how this intelligence is to be used ( section CARDINAL ) .

The information obtained by using special means of surveillance may not be used for ends other than the prevention and detection of offences , or the gathering of evidence for the perpetration of offences , in accordance with the conditions and the manner specified by the law ( section CARDINAL ) .

All persons who come across information about the use of special means of surveillance under the conditions and according to the manner set out in the ORG , or intelligence obtained thereby , are under a duty not to disclose it ( section CARDINAL ) .

The overall control over the use of special means of surveillance and the intelligence obtained thereby is entrusted to the Minister of ORG , who may issue instructions for the application of the ORG ( section GPE ) and paragraph CARDINAL of the concluding provisions of the LAW ) . The directorates which deploy these means may also carry out inspections to check whether special means of surveillance have been unlawfully used ( section CARDINAL(CARDINAL ) ) .

To date , no instructions or regulations on the implementation of the ORG have been published in ORG .

In a judgment of CARDINAL DATE , published in ORG on CARDINAL DATE ( реш. № CARDINAL от CARDINAL февруари DATE г. по конституционно дело № DATE г. , обн. , GPE , бр. CARDINAL от CARDINAL февруари DATE г. ) ORG rejected an application by the ORG to declare sections CARDINAL ) , CARDINAL , DATE and GPE ) of the ORG contrary to Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of the LAW .

The court started by noting that the special means of surveillance regulated by the ORG amounted to interferences with private life , home and correspondence , all of which were permissible under ORG CARDINAL § CARDINAL , DATE and CARDINAL § CARDINAL of the LAW ( see paragraph CARDINAL above ) .

The court then proceeded to examine section CARDINAL ) of the ORG , which allows , under certain conditions , the use of special means of surveillance before the issue of judicial warrant . It held that LAW could not be read as requiring the prior issue of warrant in every case . The risk of abuse by the executive was reduced by the facts that the possibility of dispensing with prior judicial control was narrowly circumscribed and that immediate subsequent control was mandatory . This state of affairs was also compatible with LAW . In the court 's view , the ORG provided an even higher level of protection than these instruments .

As regards section CARDINAL of the ORG , the court found that the possibility for the Minister of ORG to discontinue the use of special means of surveillance was not violative of LAW . While by LAW and section CARDINAL of the ORG the judiciary alone was empowered to authorise the use of such means , it was not the only branch of government which could order the termination of their use . The prerogative of the Minister did not therefore impinge on the independence of the judiciary .

With regard to section CARDINAL of the ORG , the court held that its true meaning , when read in the context of the LAW as a whole , was not that the Minister of ORG could order the use of special means of surveillance anew if intelligence outside the scope of the initial request for their use was obtained . It was rather to be construed as allowing the Minister to decide to which authority to forward the intelligence already obtained . His powers in this respect were thus not in breach of LAW .

Concerning section CARDINAL(CARDINAL ) of the ORG , which entrusts the overall control over the system to the Minister of ORG , the court noted that it was impossible to empower another minister , let alone a nonexecutive body , with such functions , because that would disrupt the equality between , and the independence of , the CARDINAL branches of government . This followed also from paragraph CARDINAL of the concluding provisions of the ORG , which allowed the Minister to issue instructions for its application . Moreover , the logic of the system , which was apparent from the wording of LAW , required that the Minister be made responsible for controlling the use of the special means of surveillance until the moment when the intelligence obtained thereby was given to the judicial authorities . Therefore , the judicial control over the intelligence thus gathered had not been infringed and the resulting situation was compatible with LAW .

CARDINAL judges dissented in part .

One of them was of the opinion that section GPE ) of the ORG , which entrusts the control over the use of special means of surveillance to the Minister of ORG , was unconstitutional . In his view , this provision was not sufficiently precise and the powers it conferred to the ORG were not clearly delineated . It followed from the reading of the ORG as a whole that the Minister had powers in respect of both the use and the control over the use of special means of surveillance , which was inadmissible . The resulting lack of external control meant that section NORP ) was unconstitutional . When the law spoke about control over the system , it meant control over both its functioning as a whole and control in specific cases . To bestow controlling functions to the Minister , who also played a key part in the operation of the system , did not provide sufficient safeguards against the unwarranted use of special means of surveillance .

The other dissenting judge considered that section CARDINAL ) of the ORG was unconstitutional , in that it allowed the Minister of ORG to order the use of special means of surveillance without the prior issue of judicial warrant , even in cases when their use would interfere with the freedom of correspondence or other communications . In his view , Article CARDINAL § CARDINAL of the LAW , which protects those freedoms , required prior judicial authorisation in all cases .

Articles DATE of Code of Criminal Procedure of DATE ( “ the Code of DATE ” ) also regulated the use of special means of surveillance in the context of pending or impending criminal proceedings . They coincided almost verbatim with the provisions of the ORG . CARDINAL difference was that LAW § CARDINAL provided that the judge who issued the warrant had to be informed in writing when the use of the means was discontinued . If their use had been fruitless , he or she was to order the destruction of the material obtained .

These provisions were superseded by Articles DATE of the Code of Criminal Procedure of DATE ( “ the Code of DATE ” ) , which entered into force on DATE .

By Article CARDINAL § § CARDINAL and CARDINAL of the Code of DATE , the investigation authorities may use special means of surveillance for investigating certain serious offences , which are exhaustively listed , if the relevant facts can not be established in another manner or if their establishment would be extremely difficult . Such means may be used for a maximum duration of DATE ( Article CARDINAL § CARDINAL ) , which may , if needed , be extended by DATE ( Article CARDINAL § CARDINAL ) .

The procedure starts with a reasoned application made by the prosecutor in charge of the case ( LAW ) . The application must contain information about the offence under investigation , a description of the hitherto investigative steps and their results , information about the persons or objects which will be subjected to surveillance , the methods which will be used and the duration of the surveillance ( LAW ) . The surveillance warrant is issued under the hand of the president of the respective regional court or of a specifically authorised deputy ( Article CARDINAL § CARDINAL ) . He or she must issue the warrant or refuse to do so immediately after receiving the application , and give reasons ( Article CARDINAL § CARDINAL ) . If he or she refuses , the application may be resubmitted to the president of the respective court of appeals or a specifically authorised deputy ( Article CARDINAL § CARDINAL ) . All applications and warrants are recorded in a special nonpublic register ( LAW ) . LAW DATE makes no provision for exceptions from this procedure save in the case of an undercover agent , who may , in urgent cases , start to operate pursuant to a prosecutor 's order , which must be confirmed by the respective judge within twentyfour TIME ( Article CARDINAL § CARDINAL ) .

After the issue of warrant the special means of surveillance are deployed in accordance with the provisions of the ORG ( LAW ) . The judge who issued the warrant must be informed in writing when the use of the means is discontinued . If their use has been fruitless , the judge orders the destruction of the material obtained ( LAW ) .

The Protection of Classified Information Act of DATE ( „ Закон за защита на класифицираната информация “ – “ GPE ) , which was enacted in DATE and amended several times thereafter , provides a comprehensive framework for the creation , processing and storage of classified information , as well as the conditions and the procedure for providing access to such information ( section CARDINAL(CARDINAL ) ) . “ Classified information ” includes information which is a state or an official secret ( section CARDINAL(CARDINAL ) ) .

Section CARDINAL defines a “ state secret ” as the “ information set out in Schedule No . CARDINAL [ to the LAW ] , the unregulated access to which could endanger or prejudice the interests of GPE and which relates to the national security , the defence , the foreign policy , or the protection of the constitutional order ” . Schedule No . CARDINAL to the LAW sets out a list of the categories of information which are liable to be classified as being a state secret . Thus , the information about special means of surveillance ( technical devices and/or the manner of their use ) used pursuant to the law is a state secret CARDINAL of part II of Schedule No . CARDINAL ) . So is the intelligence obtained as a result of the use of such means ( point CARDINAL of part II of Schedule No . CARDINAL ) .

Section CARDINAL(CARDINAL ) defines an “ official secret ” as the “ information created or stored by state or local government authorities , which is not a state secret , but the unregulated access to which could have a negative impact on the interests of the ORG or on another legally protected interest ” . By section PERSON ) , the information classified as an “ official secret ” must be set out in a statute .

Section CARDINAL(CARDINAL ) lays down timelimits for protecting classified information . They vary from DATE for information marked as “ highly secret ” to DATE for information graded as an “ official secret ” . These timelimits may be extended , but by not more than the double of their original length ( section GPE ) ) . After the expiration of these timelimits the access to this information is effected in accordance with ORG ( section GPE ) ) .

While the information is classified , it may be accessed only under certain conditions and by limited categories of persons , which must , in most cases , undergo a security check and obtain a security clearance ( sections CARDINAL ) .

Section CARDINAL(CARDINAL ) provides that classified information may not be destroyed DATE after the expiration of the timelimit for its protection . The destruction of such information is possible only by virtue of a decision of ORG , made pursuant to the proposal of a special commission ( section CARDINAL(CARDINAL ) ) . The ORG 's decision is subject to review by ORG ( section ORG ) ) .

In a final judgment of CARDINAL DATE ( реш. № CARDINAL от CARDINAL февруари DATE г. по адм. д. № CARDINAL/CARDINAL г. ) , given pursuant to an appeal by a person who had been refused information on whether the use of special means of surveillance had been authorised against him during the period CARDINAL January CARDINAL DATE , ORG held that while LAW enshrined the right to obtain information from a state body , that right was subject to limitations when , for instance , this information was a state or an official secret . It was apparent from LAW of the ORG that information about the use of special means of surveillance was not to be disclosed . The refusal to provide the requested information was thus compatible with LAW . The appellant 's argument that the refusal had been in breach of ORG was inapposite , because the material gathered pursuant to the ORG was outside the purview of ORG , as was the information whether the use of special means of surveillance had been authorised . The appellant 's further arguments that the information requested was not a state or an official secret within the meaning of sections CARDINAL and CARDINAL of the LOC and could moreover be divulged because of the expiry of the twoyear timelimit under section CARDINAL(CARDINAL)(CARDINAL ) of that LAW were likewise unavailing , because that LAW did not apply retroactively .

In a final judgment of CARDINAL DATE ( реш. № DATE от DATE г. по адм. д. № CARDINAL г. ) , given pursuant to an appeal by the same person as in case no . CARDINAL/CARDINAL ( see paragraph CARDINAL above ) , concerning a further refusal to inform him of measures of covert surveillance against him , ORG held that his request for such information had properly been denied , because the information relating to special means of surveillance and the intelligence obtained by using them was a state secret within the meaning of section CARDINAL of the LOC and points CARDINAL and CARDINAL of part II of Schedule No . CARDINAL to GPE see paragraphs CARDINAL above ) . On the other hand , the eventual intelligence obtained pursuant to a warrant to use special means of surveillance , as well as the warrant itself , were an official secret within the meaning of section CARDINAL(CARDINAL ) of the LOC . This followed also from the prohibition to divulge information about special means of surveillance laid down in CARDINAL of the ORG . The court went on to hold that the fact that the use of special means of surveillance could only be authorised by the presidents of the regional courts was sufficient to ensure independent judicial review of the activities of the executive and provided sufficient safeguards against unwarranted restriction on the citizens ' rights .

Article LAW CARDINAL of LAW of DATE criminalises the use of information obtained through special means of surveillance for ends other than protecting national security or combating crime . The offence is aggravated if it has been committed by officials who have acquired or have come across this information in connection with the performance of their duties ( paragraph CARDINAL of that Article ) . It is furthermore an offence to unlawfully use information obtained through such means with a view to misleading a judicial authority ( LAW ( CARDINAL ) of the LAW ) . There is no reported caselaw on the application of these texts .

In DATE ORG carried out a special inquiry on the use of special means of surveillance by ORG during DATE . While the inquiry was pending , the prosecutor in charge gave an interview , published in the daily ORG on DATE , in which he said that ORG was obstructing the inquiry . The report of the inquiry , which was finalised in DATE , was presented to ORG , ORG , ORG and ORG , but was apparently not made available to the general public . Nevertheless , some of the report 's findings were leaked to and reported by DATE newspapers . The report stated that the overall number of warrants for the use of special means of surveillance during DATE was CARDINAL , and that not including tapping of mobile phones . Out of these , CARDINAL or CARDINAL had subsequently supplied evidence for use in criminal proceedings . In CARDINAL cases special means of surveillance had been used against persons in respect of whom there had been no grounds for suspecting that they had committed a serious intentional offence . In a number of cases the orders for the deployment of such means had not been signed by the Minister of ORG himself , but by unknown persons on his behalf . In CARDINAL cases the dates of the applications for warrants and of the warrants themselves had been modified . In CARDINAL cases the warrants had not been assigned a number . In some cases the warrants had authorised measures implemented TIME before their issue . In CARDINAL cases the persons in respect of whom the warrants had been issued were not the persons under investigation .

In an interview published by the DATE PERSON on DATE ORG said that during his DATE in office he had signed CARDINAL orders for the use of special means of surveillance .

During DATE various newspaper publications reported a number of cases where it was alleged that the services of ORG had unlawfully used special means of surveillance . The allegations included illegal tapping of the telephones of opposition leaders , journalists , a former constitutional court judge , and other judges . In an interview published on DATE the Minister of ORG stated that “ a tremendously high number of wiretappings take place in GPE , but apparently for aims different from those of the criminal process ” .


CASE OF SINDICATUL "PĂSTORUL CEL BUN" v. ROMANIA

Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);Pecuniary and non-pecuniary damage - award

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

On DATE CARDINAL clergymen and lay staff of ORG , the majority of them NORP priests in parishes of the LOC of Oltenia ( a region of south - western GPE ) , held a general meeting at which they decided to form the PERSON cel Bun trade union . The relevant parts of the union ’s constitution read as follows :

“ The aim of the union of clergy and lay persons working in parishes or other ecclesiastical bodies within the administrative and territorial jurisdiction of the LOC of Oltenia shall be accepted voluntarily and concerns the representation and protection of the professional , economic , social and cultural rights and interests of clergy and lay members of the union in their dealings with the ORG hierarchy and ORG .

In order to achieve the above aim , the union shall seek to :

( a ) NORP ensure respect for the fundamental rights of its members to work , dignity , social protection , safety at work , rest , social insurance , unemployment benefits , pension rights and other rights laid down in the legislation in force ;

( b ) NORP ensure that each of its members is provided with work corresponding to his professional training and skills ;

( c ) NORP ensure compliance with the statutory provisions concerning the duration of leave and days of rest ;

( d ) promote initiative , competition and freedom of expression among its members ;

( e ) NORP ensure the implementation and strict observance of the statutory provisions concerning protection of employment and the rights deriving therefrom ;

( f ) apply fully the provisions of Law no . DATE on religious freedom and the legal status of religious denominations , the Statute of ORG and ORG of ORG ;

( g ) NORP negotiate collective and individual labour agreements with the NORP and the LOC expressly setting out all the rights and duties of the clergy and laity ;

( h ) afford protection to its President and representatives , both during and after their terms of office ;

( i ) NORP ensure that it is involved and represented at all levels and on all decision - making bodies , in accordance with the statutory provisions in force ;

( j ) use petitions , demonstrations and strikes as means of defending its ORG interests and protecting their dignity and fundamental rights ;

( k ) take legal action against any individuals or other entities that disregard employment legislation , trade - union law , the provisions of the collective agreement drawn up within the LOC or employment contracts , if it has proved impossible to resolve the disputes in question by means of negotiation ;

( l ) NORP ensure the observance and implementation of statutory provisions relating to remuneration and guarantees of decent living conditions ;

( m ) secure to the clergy and laity the benefit of all the rights enjoyed by other sectors of society ;

( n ) set up its own mutual - aid funds ;

( o ) produce and issue publications providing information to its members and defending their interests ;

( p ) NORP establish and operate cultural , educational and research organisations in the trade - union sphere , as well as social and socio - economic institutions , in accordance with the relevant statutory provisions and in the interests of its members ;

( r ) raise equity to support its members ;

( s ) NORP organise and fund religious activities ;

( ş ) make proposals for elections to local ORG bodies and put forward a priest from among its members to take part in ORG of ORG ;

( t ) ask the ORG to submit a report on its revenues and expenditure to ORG ; and

( ţ ) ask ORG to notify it , on a DATE or DATE basis , of any decisions relating to appointments , transfers and allocation of budgetary resources . ”

NORP In accordance with LAW ( Law no . CARDINAL ) , the union ’s elected president applied to ORG for the union to be granted legal personality and entered in the register of trade unions .

The representative of the ORG opposed the application . He acknowledged that the members of the union were employed by the ORG on individual contracts , but argued that the internal regulations of ORG , approved by Government Ordinance no . CARDINAL , prohibited the establishment of any form of association without the archbishop ’s prior consent .

The union ’s representative pursued his application , pointing out that the statutory requirements for establishing a trade union , as set out in LAW , were fulfilled and that the LAW in question did not bar the professional groups concerned in this case from forming a union .

The public prosecutor ’s office supported the application , expressing the view that the establishment of the union was lawful and that the ORG ’s internal regulations could not prohibit it , as the priests and lay persons concerned were all employed by the ORG and as such were entitled to form an association to defend their rights .

In a judgment of CARDINAL DATE the court allowed the union ’s application and ordered its entry in the register of trade unions , thereby granting it legal personality .

NORP The court based its decision on the provisions of LAW no . CARDINAL , DATE ORG , LAW , LAW .

It noted that LAW ( Law no . DATE ) allowed religious organisations to operate independently as long as there was no threat to national security , public order , public health , morals and fundamental rights and freedoms . Noting further that it was not disputed that the union ’s members were employed on contracts , it held that as a result , their right to organise , which was guaranteed by labour law , could not be made subject to their employer ’s prior consent .

Regarding the Church ’s internal regulations , the court held that the fact that priests had a duty of subordination and obedience vis - à - vis their employer under LAW could not justify restricting a right guaranteed by labour legislation since such a duty did not constitute a measure that was necessary in a NORP society in the interests of national security , public safety , the prevention of disorder or crime , the protection of health or morals , or the protection of the rights and freedoms of others .

Reviewing the union ’s constitution , the court found that its establishment was not necessarily a manifestation of a dissident faction within ORG with a disregard for hierarchy and traditions , but that , on the contrary , it might encourage employer - employee dialogue regarding the negotiation of employment contracts , observance of working and non - working hours and the rules on remuneration , protection of health and safety at work , vocational training , medical cover and the right to elect representatives and stand for election to decision - making bodies , in accordance with the special characteristics of the ORG and its spiritual , cultural , educational , social and charitable purpose .

The NORP appealed against the court ’s judgment , submitting that the provisions of domestic and international law on which it had been based were not applicable to the present case . It argued that LAW guaranteed religious freedom and the autonomy of religious communities and that this principle could not be overridden by freedom of association . It further submitted that by acknowledging the trade union ’s existence , the court had interfered with the traditional organisation of the ORG , thus undermining its autonomy .

In a final judgment of DATE ORG allowed the appeal , quashed the first - instance judgment and , on the merits , refused the application for legal personality and for entry in the register of trade unions .

ORG observed that LAW no . CARDINAL guaranteed the autonomy of religious communities and their right to make their own organisational arrangements in accordance with their internal regulations . It further noted that there was no reference to the concept of a trade union in the Statute of ORG , which provided that the establishment , operation and dissolution of religious associations and foundations were subject to the blessing of ORG and that priests had a duty of obedience towards their superiors and could not undertake civil transactions , including those of a personal nature , without their prior written approval .

It held that the prohibition on setting up any form of association within the ORG without the consent of the hierarchy was justified by the need to protect the NORP tradition and its founding tenets , and that if a union were to be established , the ORG hierarchy would be obliged to work together with a new body operating outside that tradition and the rules of canon law governing decision - making .

Lastly , it noted that under PERSON no . CARDINAL/CARDINAL , persons performing management functions were not allowed to form trade unions and , bearing in mind that under LAW , priests assumed leadership of their parishes , concluded that they were covered by this ban .

NORP The relevant provisions of the LAW read as follows :

“ ORG may freely associate to form political parties , trade unions , ORG organisations and other forms of association . ”

“ The right to work shall not be restricted . Everyone is free to choose his or her profession , trade or occupation and workplace .

Employees are entitled to social protection measures . These concern employees’ health and safety , working conditions for women and young people , the establishment of a national gross minimum wage , DATE rest , paid DATE leave , work performed in particular or special conditions , vocational training , and other specific situations as provided for by law .

The normal average working day is a maximum of TIME .

For equal work , women shall receive equal pay to men .

The right to collective labour bargaining and the binding force of collective agreements shall be guaranteed . ”

“ Freedom of thought and opinion and freedom of religion shall not be restricted in any form . No one shall be compelled to embrace an opinion or religion contrary to his or her own beliefs .

Freedom of conscience is guaranteed ; it must be manifested in a spirit of tolerance and mutual respect .

Religious denominations shall be free and religious communities shall be organised in accordance with their own regulations , subject to the conditions laid down by law .

All forms , means , acts and actions of religious enmity shall be prohibited in relations between religious denominations .

Religious communities shall enjoy autonomy in relation to the ORG and shall receive ORG support , including the provision of facilities offering religious assistance in the army , hospitals , prisons , asylums and orphanages . ”

The relevant provisions of LAW ( Law no . CARDINAL ) are worded as follows :

“ Anyone working on the basis of a contract of employment , including public officials , shall have the right to form or to join trade unions .

The establishment of a trade union shall require a minimum of CARDINAL employees in the same occupation or branch of activity .

No one shall be compelled to join , not to join or to leave a trade union . ”

“ Persons performing management functions or functions involving the exercise of public authority , the judiciary , the military , the police and members of the special forces may not set up trade unions . ”

Under LAW ( Law no . CARDINAL/CARDINAL ) , freedom to practise religious beliefs is guaranteed . The relevant provisions of the LAW read as follows :

“ The NORP State shall respect and guarantee the right to freedom of thought , conscience and religion of any person within the territory of GPE , in accordance with the LAW and international treaties to which GPE is a party . ”

“ Members of religious communities shall be free to choose the form of association in which they wish to practise their faith – religious community , association or group DATE in accordance with the terms and conditions of this Act .

Religious communities , associations and groups shall be required to observe the LAW and the law and not to threaten public safety , public order , health , morals and fundamental rights and freedoms . ”

“ Recognised religious communities shall have the status of charitable corporations . Under the provisions of the LAW and this LAW , they shall be organised and shall operate independently in accordance with their own statutes or canons . ”

“ The ORG shall contribute , on request , to the remuneration of clergy and lay staff of recognised religious communities , according to the number of worshippers and the actual needs of the communities . ”

“ On a proposal by ORG , the Government shall grant the status of a ORG - recognised religious community to religious associations which , through their activities and number of members , are of public interest and of proven sustainability and stability .

The ORG shall recognise statutes and canons to the extent that their content does not threaten public safety , public order , health , morals and fundamental rights and freedoms . ”

“ Religious communities shall select , appoint , employ and dismiss staff in accordance with their own statutes , codes of canon law and regulations .

Religious communities may impose disciplinary sanctions on their employees , in accordance with their own statutes , codes of canon law and regulations , for breaches of the community ’s doctrine or moral principles . ”

“ Employees of religious communities who are insured within the ORG insurance scheme shall be subject to the legislation on the ORG social - insurance system . ”

“ Matters of internal discipline shall be exclusively subject to the provisions of internal regulations and canon law . ”

The State - Funded Remuneration Act ( Law no . CARDINAL/CARDINAL ) contains provisions on the remuneration of the clergy and lay staff . It provides that the ORG is to contribute to the remuneration of clergy members and lay persons employed by recognised religious communities . Thus , the ORG pays clergy employed by recognised religious communities a DATE stipend equivalent to PERCENT of the salary of a secondary - school teacher . The ORG also covers all social contributions payable by employers in respect of members of the clergy .

As regards lay staff , PERSON no . PERSON provides that they are to receive a DATE allowance equivalent to the national guaranteed minimum wage . This allowance and all social contributions payable by employers in respect of these employees are covered by local government budgets . Clergymen holding senior positions receive a higher stipend .

The Statute of the Romanian Orthodox Church , adopted by ORG in DATE and approved by Government Ordinance no . CARDINAL of DATE , replaced LAW , which dated from DATE . The relevant provisions read as follows :

“ The Patriarchate is made up of dioceses and archdioceses , grouped into metropolises . ”

“ The Holy Synod shall take decisions on the establishment , organisation and dissolution of national ecclesiastical associations and foundations ... It shall grant or refuse its blessing for the establishment , organisation and dissolution of NORP associations and foundations that operate in dioceses and have their own governing bodies . ”

“ The parish is the community of believers , clergy and laity , within a specified geographical territory and subject to the canonical , legal , administrative and economic authority of the diocese or archdiocese . It is led by a priest appointed by the bishop . ”

“ Without the bishop ’s prior written consent , the priest may not represent the parish in court proceedings or in dealings with the authorities or third parties . By virtue of the oath of obedience taken at the time of their ordination , members of the clergy and monks may not take part in court proceedings save with the prior written permission of the bishop . ”

“ Priests and other church staff have the rights and are bound by the obligations set forth in ORG , this LAW , church regulations and the decisions of the archdiocese . ”

“ The bishop ... shall order the appointment , transfer or dismissal of clergy and lay staff in the various parishes ... He shall ensure the observance of discipline by members of the clergy and lay staff in his diocese , whether directly or through ecclesiastical bodies . ”

“ Members of the clergy shall serve the diocese in accordance with the duties they have freely assumed and with the vows and the solemn public undertaking they have read out and signed prior to their ordination . Before commencing their pastoral functions , they shall receive a decision from the bishop setting out their rights and duties .

Without the bishop ’s blessing , no priests , deacons or monks may form , be members of or take part in associations , foundations or other organisations of any kind .

The status of priest , deacon or monk is incompatible with the pursuit of any other personal activities of an economic , financial or commercial nature that are contrary to NORP morals and the interests of the ORG . ”

“ By virtue of the autonomy of religious communities under the law , the ecclesiastical courts shall resolve matters of internal discipline . Their decisions are not subject to appeal in the civil courts . ”

In a judgment of DATE ORG held that it had jurisdiction to review the lawfulness of the dismissal or enforced retirement of NORP priests , seeing that employees of ORG were covered by the general social - security scheme and , as a result , the statutory provisions on social insurance . That position was confirmed in CARDINAL judgments delivered by the GPE and ORG of Appeal on DATE and DATE respectively .

In its judgment of DATE ORG was required to determine a case in which the appellant , an NORP priest , challenged his enforced retirement on grounds of age , arguing that the measure was motivated by his membership of the Sfântul Mare Mucenic Gheorghe union of NORP clergy . It rejected the priest ’s argument , observing that the decision on his enforced retirement had been taken before the union had been established .

In a judgment of CARDINAL DATE ORG Cassation , on an appeal by an NORP priest against the refusal of ORG to review the application of labour law by the diocese ( his employer ) , upheld the refusal , holding that in matters of internal discipline , the provisions of internal regulations alone were applicable .

In a final judgment of CARDINAL DATE ORG ordered the entry of PERSON , a union of NORP clergy of the NORP of Tomis ( Constanţa ) , in the register of trade unions and granted it legal personality .

It further appears from the reasoning of ORG above - mentioned judgment of DATE that the Sfântul Mare ORG union of NORP clergy was entered in the register of trade unions and granted legal personality as a result of a final judgment delivered on DATE by ORG .

GPE ratified the revised NORP Social Charter on DATE . LAW , concerning the right to organise , is worded as follows :

“ With a view to ensuring or promoting the freedom of workers and employers to form local , national or international organisations for the protection of their economic and social interests and to join those organisations , the Contracting Parties undertake that national law shall not be such as to impair , nor shall it be so applied as to impair , this freedom . The extent to which the guarantees provided for in this Article shall apply to the police shall be determined by national laws or regulations . The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations . ”

Article CARDINAL § CARDINAL of GPE ORG reads as follows :

“ Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels , in particular in political , trade union and civic matters , which implies the right of everyone to form and to join trade unions for the protection of his or her interests . ”

Council Directive CARDINAL of DATE establishing a general framework for equal treatment in employment and occupation reads as follows , in so far as relevant :

( CARDINAL ) The right of all persons to equality before the law and protection against discrimination constitutes a universal right recognised by LAW , LAW on LAW and by LAW , to which all Member GPE are signatories . Convention No . CARDINAL of ORG ( ORG ) prohibits discrimination in the field of employment and occupation .

( CARDINAL ) It is important to respect such fundamental rights and freedoms . This Directive does not prejudice freedom of association , including the right to establish unions with others and to join unions to defend one ’s interests .

( CARDINAL ) ORG in its Declaration No . CARDINAL on the status of churches and non - confessional organisations , annexed to LAW of LAW , has explicitly recognised that it respects and does not prejudice the status under national law of churches and religious associations or communities in GPE and that it equally respects the status of philosophical and non - confessional organisations . With this in view , Member GPE may maintain or lay down specific provisions on genuine , legitimate and justified occupational requirements which might be required for carrying out an occupational activity . ... ”

“ CARDINAL . ... Member GPE may provide that a difference of treatment which is based on [ religion or belief ] shall not constitute discrimination where , by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out , such a characteristic constitutes a genuine and determining occupational requirement , provided that the objective is legitimate and the requirement is proportionate .

Member GPE may maintain national legislation in force ... or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which , in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief , a difference of treatment based on a person ’s religion or belief shall not constitute discrimination where , by reason of the nature of these activities or of the context in which they are carried out , a person ’s religion or belief constitute a genuine , legitimate and justified occupational requirement , having regard to the organisation ’s ethos . ...

Provided that its provisions are otherwise complied with , this Directive shall thus not prejudice the right of churches and other public or private organisations , the ethos of which is based on religion or belief , acting in conformity with national constitutions and laws , to require individuals working for them to act in good faith and with loyalty to the organisation ’s ethos . ”


The applicant , PERSON , was a NORP national who was born in DATE and lived in PERSON . On DATE the applicant ’s grandson , Mr PERSON , represented by PERSON , a lawyer practising in PERSON , informed the Registry that the applicant had died in DATE .

The respondent Government were represented by their Agent , Mr J. Wołąsiewicz of ORG .

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

On DATE the applicant ’s husband died in a car accident . CARDINAL cars ( a ORG , a ORG and the deceased ’s car ) were found to be involved in the accident . Soon after the accident police officers came to the scene and made an inspection of the locus in quo . The deceased ’s identity documents were found . A death certificate was issued by a doctor . On DATE the deceased ’s car was transported to FAC parking site . The body was taken to a private funeral parlour which did not have a cold storage chamber . On DATE after the accident it was transported to a forensic police unit with a cold storage chamber .

On DATE the applicant , who had made inquiries as she had become increasingly worried when her husband had failed to return home on time , was informed by the Wrocław Regional District Station that no car accidents had been recorded in the region on DATE . LOC gave her the same information .

On DATE , DATE after the accident , the applicant was informed of her husband ’s death .

In a decision of the District Prosecutor given on an unspecified date in the proceedings instituted by the applicant for the failure to inform her speedily of her husband ’s death , it was stated that the lack of information had been the result of poor coordination between the police stations .

On DATE an autopsy was conducted at ORG at ORG . On DATE a blood test was carried out which showed that the deceased had QUANTITY of alcohol in his blood .

On DATE , by a decision of ORG , the investigation into the death of the applicant ’s husband was prolonged until DATE as further measures had to be taken ( including the obtaining of an expert opinion on traffic accidents and the questioning of further witnesses ) .

On DATE , DATE after the blood test had been carried out , the results were lodged with ORG .

On DATE , by a decision of ORG , the investigation was prolonged until DATE since the expert opinion had not yet been obtained . On DATE the inquest proceedings were again prolonged until DATE .

On DATE the applicant learned from the forensic expert appointed in the case the result of the blood test conducted on DATE .

On DATE the applicant requested that a further blood test be conducted . On DATE FAC gave a decision ordering a new blood test to be carried out . The test was conducted on DATE . Its results were different from those of DATE as the new examination showed that there had been QUANTITY of alcohol in the deceased ’s blood . Both examinations relied on the same blood samples taken on DATE .

On DATE ORG sent a letter to ORG explaining that the different results of the tests had been caused by a mistake in copying the results from CARDINAL medical document to another .

On DATE the applicant instituted criminal proceedings alleging that the results of the forensic tests had been forged .

On DATE the proceedings were discontinued by a decision of ORG . It was found that no criminal offence had been committed in connection with the forensic tests . The applicant appealed .

On DATE ORG upheld the decision . The applicant appealed .

On DATE the ORG quashed the decision and remitted the case to the prosecutor with a view to obtaining a supplementary opinion of an expert in graphology . Nevertheless , the prosecution authorities did not order such an opinion to be prepared and the applicant ’s subsequent request to that effect was refused .

On DATE ORG again discontinued the proceedings as the error was found to have been unintentional and as such could not constitute the offence of forgery . The applicant appealed . On DATE ORG upheld the decision .

On DATE the applicant lodged a private bill of indictment with the court against persons who , in her opinion , had been negligent in the preparation of the results of the blood tests .

On DATE the ORG discontinued the proceedings , finding that no criminal offence had been committed . The applicant appealed . On DATE ORG upheld the decision .

The applicant was a party to these proceedings as she had the status of a victim in the investigation and that of auxiliary prosecutor ( oskarżyciel posiłkowy ) in the judicial proceedings .

On DATE the driver of the ORG was questioned by the police . On DATE he was declared to be suspected of causing death by dangerous driving . On DATE he was questioned again .

On DATE ORG lodged with ORG a bill of indictment charging him with causing death by dangerous driving . In DATE the case was transferred to ORG and subsequently , in DATE , to ORG .

On DATE an expert opinion prepared by PERSON was submitted to the court .

Subsequent hearings were held on DATE and DATE . On the latter date the court decided to conduct the proceedings anew as a new judge rapporteur had been assigned to the case . The hearings were resumed and held on DATE , DATE , DATE , DATE , CARDINAL May , DATE and DATE . On DATE the applicant requested that the case be remitted for further investigation . The request was dismissed by the court on DATE .

On DATE the applicant lodged a hierarchical complaint with the President of the ORG concerning the excessive length of the proceedings . By a letter of DATE the President of the ORG informed the applicant that there were no grounds for finding that the proceedings were too lengthy .

On DATE the applicant challenged the judge rapporteur , a motion which was dismissed on DATE . On DATE the court allowed her motion for another expert opinion to be prepared . The next hearings were held on CARDINAL and DATE and DATE .

On DATE the court allowed the applicant ’s motion for another ( fourth ) expert opinion to be prepared . It was submitted to it on DATE . At a hearing held on DATE the court refused the applicant ’s request for another ( fifth ) opinion .

On DATE the ORG gave a judgment by which it acquitted the accused . Altogether CARDINAL hearings were held before the firstinstance court .

On DATE the applicant appealed .

On DATE the ORG quashed the judgment and remitted the case . It found , inter alia , that the length of proceedings had been excessive as they had lasted DATE . The court pointed out that numerous procedural shortcomings on the part of the firstinstance court had resulted in the erroneous assessment of the evidence . It found that the erroneous decisions taken in the course of the proceedings showed that the court had been unable to obtain a full picture of the circumstances relevant for the assessment of the case . In particular , it had admitted in evidence several expert opinions and later refused the applicant ’s request to summon the experts for questioning . The court had also organised CARDINAL subsequent superfluous hearings during which it only informed the parties that the expert opinions had not yet been obtained . It had also dismissed a request to admit the evidence of new witnesses , without specifying which request and which witnesses it had referred to . ORG further doubted whether one of the experts had had access to the court file , which would have been indispensable for giving his opinion . It also pointed out that although the expert opinions differed substantially , the first - instance court had not ordered the experts to be questioned .

The case was remitted to ORG and QUANTITY hearings were held .

On DATE the ORG stayed the proceedings in order to obtain a new expert opinion . The applicant appealed and her appeal was allowed . The proceedings were resumed on DATE . The new opinion was submitted to the court on DATE .

In DATE hearings were held on CARDINAL and CARDINAL May , DATE and DATE and CARDINAL DATE and CARDINAL DATE . Hearings scheduled for DATE and CARDINAL DATE were adjourned as the experts had failed to comply with the summonses .

On DATE the ORG found the accused guilty of causing death by dangerous driving and sentenced him to DATE imprisonment , suspended conditionally for DATE , and to a fine . On DATE the defendant appealed .

On DATE the ORG quashed the judgment and remitted the case . It found that there were serious discrepancies between the terms of the judgment and its written grounds and that numerous shortcomings of a procedural character had occurred in the proceedings .

CARDINAL hearings were held before ORG after the case had been again remitted .

On DATE the ORG found the accused guilty , sentenced him to DATE imprisonment , suspended conditionally for DATE , to a fine and to the payment of damages to the applicant . Both the applicant and the defendant appealed .

On DATE ORG upheld the first - instance judgment in its part concerning the conviction and the sentence . It quashed the part concerning the payment of damages . It observed that the firstinstance judgment of DATE had not contained any decision concerning compensation as the court had availed itself of the possibility of leaving the civil claim undecided . It had been appealed against by the defendant and was subsequently quashed . In this situation , the firstinstance court , when deciding the case again , could not rule on the compensation claim as this was in breach of the reformationis in peius prohibition .

The applicant was a party to these proceedings having the status of a victim of the offence .

On DATE the driver of the ORG was heard by the police as a witness .

On DATE ORG decided to discontinue the inquest proceedings as he found that although the driver of the ORG had been responsible for the accident , his or her identity had not been established . On DATE the applicant appealed .

On DATE ORG upheld the decision . On CARDINAL DATE the applicant appealed .

On DATE the ORG Appellate PERSON ordered the investigation to be reopened with a view to taking additional investigatory measures , including questioning of further witnesses and obtaining an expert opinion on traffic accidents .

On DATE , by a decision of the police , the investigation was discontinued as the driver of the ORG had not been identified . On DATE the applicant appealed .

On DATE ORG upheld the decision . On DATE the applicant appealed .

On DATE the President of ORG found the applicant ’s appeal inadmissible in law . The applicant appealed . On DATE ORG upheld the contested decision .

Under LAW CARDINAL of the Code of Criminal Procedure , the criminal court shall not decide on a civil claim brought in the criminal proceedings if it finds that the evidence gathered in those proceedings is insufficient to make a ruling and the gathering of such evidence would unduly prolong the proceedings . It is open for the victim of the offence to seek compensation in civil proceedings .


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

On DATE the applicant , along with some other intellectuals , artists and representatives of non - governmental organisations , totalling CARDINAL persons , gathered together outside the ORG building in GPE , where a representative read a declaration entitled “ To ORG and all other international organisations ” and distributed copies of it to members of the press .

On DATE , the public prosecutor filed a bill of indictment with ORG against the applicant and CARDINAL other co - defendants , who signed the declaration .

During the criminal proceedings before ORG , the court had obtained some of the defendants ' statements before it , for the others it issued rogatory letters addressing the local courts , as the accused persons were living outside the territory of GPE , in CARDINAL different cities of the Country , namely , GPE , GPE , GPE , GPE , ORG , Batman , Gaziantep , ORG , GPE , PERSON , Silopi , PERSON , GPE and GPE .

The court took note of the statements that were sent back at each hearing . It also issued arrest warrants for the defendants that could not be found merely for the purpose of obtaining their statements .

The case file does not disclose any information as to whether the applicant or his lawyer requested from the court that the applicant 's case proceed separately from the others .

On DATE before delivering its first decision , the court separated the CARDINAL defendants ' cases from the main case as they still could not be found , and sentenced the applicant and some of his co - accused to DATE imprisonment each and a fine of MONEY for disseminating propaganda against the territorial integrity of the ORG and the indivisible unity of the nation pursuant to section CARDINAL ( CARDINAL ) of the Prevention of Terrorism Act ( Law no . ORG ) .

On DATE the applicant appealed to ORG .

On DATE ORG quashed the judgment on account of the lack of notification papers in the case file , and sent it back to the first instance court .

On DATE ORG convicted the applicant of the offence as charged , and suspended the execution of the sentence in accordance with LAW no . DATE . The applicant appealed .

On DATE ORG quashed ORG judgment on the grounds that the criminal proceedings against the applicant should be discontinued since the prosecution was time - barred .

On DATE ORG adhered to the judgment of ORG and decided that the case be struck off from its list .


The applicant is a NORP citizen born in DATE .

A.

The applicant ’s detention on remand

On DATE the applicant was arrested . On CARDINAL DATE the ORG detained him on remand on charges of armed robbery committed on DATE against a post office in Gdańsk . The prosecutor referred to a danger of absconding and to the serious character of the offence concerned . On DATE the ORG dismissed the applicant ’s appeal against this decision .

On DATE , CARDINAL and DATE the prosecutor refused to release the applicant .

From DATE to CARDINAL DATE the applicant served a prison sentence imposed by a judgment of ORG of DATE , pursuant to which a fine had been imposed on him with CARDINAL days’ imprisonment in default .

On DATE the ORG prolonged the applicant ’s detention until DATE , referring in particular to new evidence gathered in the case since the beginning of the investigations which made the charges against the applicant and other accused plausible . The court further stressed that the suspects had probably been acting in an organised group , acting in a violent manner bordering on terrorism , and had unlawfully possessed weapons . The court further noted that various indications of criminal connections between the accused and other persons needed clarification .

On DATE ORG dismissed the applicant ’s appeal against a refusal of DATE to release him , considering in particular that the testimony of witnesses pointed to the applicant ’s guilt . On DATE the ORG prolonged detention on remand until DATE .

On DATE the ORG again refused to release the applicant . On DATE ORG upheld this decision . On DATE the applicant ’s detention was prolonged until DATE .

On DATE the ORG refused to release the applicant , referring to evidence gathered in the investigations , which supported suspicion against the applicant and to the danger of absconding .

On DATE ORG dismissed the applicant ’s appeal against a decision prolonging his detention until DATE .

On DATE and on CARDINAL DATE ORG upheld this decision , finding in particular that the evidence gathered so far in the investigations strongly supported the suspicion against the applicant .

On DATE the ORG refused to release the applicant . On DATE ORG upheld the decision of DATE , considering in particular that the applicant ’s allegations that the evidence against him had been fabricated , should be seen in the light of the fact that it was ultimately for the court to assess evidence in criminal cases . The applicant ’s health had also been examined and it did not amount to an impediment to the applicant ’s continued detention .

On DATE the ORG lodged a bill of indictment , including CARDINAL further charges of armed robbery with the ORG to which the case had in the meantime been transferred .

On DATE the ORG refused to release the applicant , and on DATE ORG upheld this decision , considering that the arguments advanced by the applicant in his appeal were essentially the same which he had put forward before in the proceedings concerning his detention . The court noted that certain evidence had still to be taken , in particular as certain witnesses had failed to attend the hearings in order to be questioned . The court further noted that the facts which sufficed for a continuation of detention on remand were not of the same level of probability as those which could ultimately lead to a conviction . In the applicant ’s case there was enough evidence against him to justify his continued detention . The applicant ’s health had repeatedly been taken into consideration by the courts and assessed under LAW .

On DATE the ORG rejected the applicant ’s request for release . The court recalled that the applicant ’s request for release had been examined by competent courts on numerous occasions , for DATE . No changes had occurred since that time such as to justify the release , in particular as several witnesses from PERSON had failed to comply with the court ’s summonses . Moreover , the lawyer of another accused , PERSON , had fallen ill , and PERSON had not consented to his being temporarily replaced by another lawyer . Thus , it was necessary to maintain the detention in order to ensure the proper course of the proceedings . Since the last judicial decision by which the lawfulness of the applicant ’s detention had been reviewed , he had twice been examined by an orthopaedist . The medical opinion of DATE indicated that the applicant ’s pains had become less severe , that no muscular atrophy had been established and that he had a wider range of movement in his right arm than he had had before , thus , there were no grounds to release the applicant .

On an unspecified later date the applicant complained to the President of the Bielsko - Biała Regional Court that his detention was unlawful . In reply , he was informed by a letter of CARDINAL DATE that pursuant to the provisions of LAW , detention on remand of persons arrested before DATE , whose length of detention had exceeded time - limits fixed by LAW , could be maintained until DATE . In cases in which a request for prolongation of detention had been submitted by a competent court to ORG , detention was to be maintained until this request be examined by that court . Therefore there was nothing , showing that the applicant ’s detention was , or had become , unlawful .

On DATE ORG refused to entertain the request of the ORG for prolongation of the applicant ’s detention , considering that this request should have been given by way of an interlocutory decision and not by a court ’s administrative order . On DATE the ORG requested again that the applicant’ detention be prolonged .

On DATE ORG , at the motion of the ORG , prolonged the applicant ’s detention until DATE . The court considered that the applicant had been arrested on CARDINAL DATE and noted that from DATE to CARDINAL DATE he had been serving a prison sentence . Likewise , from DATE to CARDINAL DATE he had been serving another sentence . Consequently , he had been detained on remand for DATE , DATE and DATE , which exceeded time - limits fixed by LAW . The ORG further considered that the lawfulness of the applicant ’s detention had been repeatedly examined by the courts . In the light of the evidence gathered in the case , their arguments in support of the applicant ’s detention appeared correct and should be accepted as well - founded . The proceedings against the applicant could not have been terminated on the grounds which could not be effectively counteracted by ORG , such as the fact that the applicant and other accused had submitted various requests for evidence to be taken , and that already when the proceedings were well advanced , for instance during the hearings held on DATE and CARDINAL and DATE . The ORG further had regard to the fact that certain witnesses failed to comply with the court summonses . Therefore the grounds on which detention could be prolonged beyond periods fixed by LAW , listed in LAW were obtained in the case and necessitated the prolongation of the applicant ’s detention .

On DATE the ORG convicted the applicant of CARDINAL counts of armed robbery and sentenced him to DATE of imprisonment and a fine with DATE of imprisonment in default .

On DATE ORG amended this judgment in part , in that it acquitted the applicant of CARDINAL count of robbery , reduced his sentence to DATE of imprisonment and upheld the judgment in its remainder .

On DATE the applicant lodged a cassation appeal with ORG against the judgment of DATE .

On an unspecified later date the applicant was released .

The applicant ’s medical treatment

In DATE the applicant , at the prosecutor ’s request , was examined in the forensic medicine ward of ORG in LOC . It was established that he could remain in detention if appropriate medical care was given to him .

On DATE the applicant was examined by a court medical expert .

On DATE ORG refused to institute investigations concerning the alleged offence of refusal of medical care to the applicant , finding that , in fact , the applicant had been receiving appropriate care .

On DATE the applicant was examined by a medical panel which did not find any counter - indications for his continued detention .

On an unspecified DATE before DATE the applicant had been examined and consulted by specialists in FAC .

By a letter of DATE the ORG Regional Court- ORG reminded the applicant that he had been examined by a court expert and that he had also been repeatedly examined by physicians of Wadowice prison . It had been demonstrated that his detention did not fall within the ambit of circumstances referred to in LAW .

On DATE the applicant was examined by a medical panel , composed of , inter alia , an orthopaedist and a surgeon , found that he could be maintained in custody .

On DATE the ORG ordered that the applicant should be examined by a physician , having a status of a court expert , and that a relevant expert opinion be prepared as to whether his continued detention on remand was compatible with his health .

In a report of CARDINAL DATE the forensic medicine ward of ORG in ORG stated that the applicant , on numerous occasions , had been examined by physicians at the prison , that numerous medical analyses and additional examinations had been made , which , in essence , had shown that the applicant had not had any particular pathological symptoms . His complaints related in particular to frequent headaches and vertigos . The physicians had diagnosed him as suffering from discopathy . In conclusion , the applicant who also suffered from certain sequelae of a trauma to his right shoulder could remain in detention .

On an unspecified date before DATE the applicant was examined by a neurologist and had had an electroencephalography , which had not showed any pathological changes .

By letters of CARDINAL DATE and DATE the applicant was informed by ORG that his complaints had been examined and that no lack of diligence had been established on the part of the prison medical services .

On an unspecified date the Bielsko - Biała Regional Court , having found that the applicant ’s health was not such as to justify a conclusion that his continued detention was incompatible with the requirements of LAW , prolonged his detention until DATE .

By an opinion of DATE the same court expert , who had already examined the applicant in DATE and in DATE , stated that the applicant suffered from sequelae of trauma to his right shoulder , significant obesity , hypertension and heart condition . This syndrom in itself did not amount to a categorical counter - indication for the applicant ’s continued detention . However , the persistent pains in his shoulder necessitated that the rehabilitation be undertaken as soon as possible under the supervision of an experienced orthopaedist , either in a civil or in a prison hospital .

On DATE a physician of the Bielsko - Biała District Detention Centre issued a medical certificate to the effect that the applicant was suffering from hypertension , and from sequelae of a trauma to his right shoulder , from discopathy and psoriasis . He was not rehabilitated , despite the orthopaedist ’s recommendation , as there was no such possibility in the conditions of the detention centre . He was also taking significant amounts of various medicines , which had not brought about any significant amelioration of his state .

On DATE the applicant was admitted to the prison hospital of Bytom prison , but he refused to give his consent for staying there .

On DATE the ORG refused to institute criminal proceedings against persons responsible for the alleged offence of the applicant ’s unlawful deprivation of liberty in conditions which entailed danger to his health , finding that the applicant had been kept in detention on the basis of valid decisions of competent authorities , and that the lawfulness and justified character of his detention had repeatedly been examined in the context of various appeals filed by the applicant , also as to its alleged incompatibility with his health . The prosecutor concluded that no criminal offence had been committed .

On an unspecified date before DATE the applicant was put in the hospital of the ORG prison . A medical opinion of DATE stated that the applicant had complained about pains and limited movement of his right arm , caused by an accident , certain pains in his spine , headaches and lack of appetite . The applicant ’s condition necessitated a permanent pharmaceutical treatment of his hypertension and periodical treatment of his spine problems . Also , a treatment to bring his right shoulder to full efficiency was indicated . Apparently , the applicant ’s actual pains were less severe than he had reported . Likewise , the range of movement of his right shoulder seemed to be wider than complained of . The physician concluded that the applicant could be maintained in detention and that the necessary treatment could be provided by the prison medical services .

On DATE the ORG upheld this decision of CARDINAL DATE finding , first , that there were no grounds on which to believe that the applicant ’s detention could be unlawful . It had repeatedly been reviewed by competent authorities who had found that the allegations of unlawfulness were ill - founded . It was emphasised that the applicant had very often been examined by prison physicians and that he had access to appropriate medical care , available in conditions of detention . The only limitation to this access concerned the rehabilitation treatment , but this was due simply to the fact that the detention centre was not in a position to ensure this kind of medical care to detained persons . This circumstance alone could not serve as a basis for the applicant ’s release as it had been established by way of expert medical opinions that his ailments were not severe enough to fall within the scope of LAW . In conclusion , the applicant ’s allegations that his detention could amount to a criminal offence were entirely implausible and should be regarded as attempts to put pressure on the justice administration organs .

On DATE a medical expert opinion was submitted to the ORG . The expert had examined the applicant and analysed the entries in his voluminous medical records . He stated that the applicant suffered significant obesity , had sustained a trauma of his right shoulder with a persistent pain syndrome , had a light hypertension and very light decrease of audition , caused by slight damage of a hearing nerve . It transpired from the entries in the applicant ’s records that he had very often requested medical advice and had been taking great quantities of painkillers and anti - inflammatory medicines . In conclusion , the applicant ’s ailments were not of such severity as to prevent him either from being detained on remand , or from serving a prison sentence . It was true that the rehabilitation treatment could not be provided in prison , and that , if postponed for a long time , this could lead to a gradual deterioration in the state in the applicant ’s arm .

B. Relevant domestic law and practice

Evolution of NORP criminal law in the relevant period

NORP criminal legislation was amended several times during the relevant period . LAW enacted in DATE ( “ old ” Code ) was replaced by LAW , adopted by ORG ( PERSON ) on DATE , and which entered into force on DATE .

The “ old ” Code was significantly amended by the PERSON of DATE on LAW to LAW and Other Criminal Statutes . This PERSON entered into force on DATE . However , the entry into force of the provisions concerning imposition of detention on remand was postponed until DATE . In pursuance of these provisions , detention on remand was to be imposed by a judge ( whereas before it was imposed by a prosecutor - see section CARDINAL below ) .

The second amendment , effected by the PERSON of DATE on LAW to the LAW ( commonly referred to as “ LAW DATE ” ) entered into force on DATE .

Preventive measures

The Code of Criminal Procedure ( “ old ” ) , applicable at the relevant time , listed as " preventive measures " , inter alia , detention on remand , bail and police supervision .

After the bill of indictment was transmitted to the court , relevant orders were to be made by the court . A decision concerning preventive measures could be appealed to a higher court .

Grounds for detention on remand

Article CARDINAL of the “ old ” Code of Criminal Procedure , as applicable at the relevant time , provided that a person could be held in detention on remand if there were serious grounds for believing that this person would abscond , did not have a permanent address or his / her identity could not be established . Further , detention could be imposed if there were serious grounds for believing that there was a risk of collusion or that an accused would otherwise jeopardise criminal proceedings . Finally , alternative grounds for detention on remand were either the fact that an accused was charged with an offence of a particular danger to society or that he was a recidivist within the meaning of LAW .

Pursuant to LAW ” Code of Criminal Procedure , if there were no special considerations to the contrary , detention on remand should not be imposed or should be lifted , if it involved danger to life or limb or entailed particular hardship for a suspect or his family .

After the Interim PERSON of DATE entered into force on DATE , grounds of imposition of detention on remand were restricted to situations in which there was a reasonable risk of absconding , or that a suspect would go into hiding , in particular when his identity could not be established or he had no permanent domicile . Secondly , detention could be imposed if there was a reasonable risk that the suspect would attempt to induce witnesses to give false testimony or to hinder the proper course of proceedings by any other unlawful means .

Proceedings to examine the lawfulness of detention on remand

At the material time there were CARDINAL types of proceedings enabling a detainee to challenge the lawfulness of his detention and thus possibly obtain release . Under LAW § CARDINAL of the “ old ” Code of Criminal Procedure he could appeal to a court against a detention order made by a prosecutor ( see above ) . Under Article CARDINAL § § CARDINAL(CARDINAL ) and CARDINAL he could appeal against a further decision by that court prolonging his detention on a prosecutor 's request . Finally , under LAW an accused could at any time request the competent authority to quash or alter the preventive measure applied in his case . Such an application had to be decided by the prosecutor or , after the bill of indictment had been lodged with the court competent to deal with the case , by that court , within DATE .

Statutory time - limits for detention on remand

Until DATE the law did not fix any time - limits concerning detention on remand in judicial proceedings . During the investigations , the prosecutor could order detention for DATE . Prolongation of this period was possible by a court order , for a period not exceeding one year , and for any further periods , by a decision of ORG given upon a request of ORG

Article CARDINAL of the Code of Criminal Procedure , as applicable from DATE , provided insofar as relevant :

" CARDINAL . The whole period of detention on remand until the date on which the first - instance court gives judgment may not exceed DATE and DATE in cases concerning offences . In cases concerning serious offences this period may not exceed DATE .

In particularly justified cases ORG may , upon the request of the court competent to deal with the merits of the case , ... prolong detention on remand for a further fixed period exceeding the periods referred to § ... CARDINAL , when it is necessary in connection with a suspension of the proceedings , a prolonged psychiatric observation of the accused , when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings within the time - limits set out in § CARDINAL . ”

However , under LAW ( a ) of LAW of DATE different rules applied in respect of persons whose detention on remand started prior to CARDINAL DATE . This article provided :

“ CARDINAL . In cases where the total period of detention on remand which started prior to CARDINAL DATE exceeds the [ maximum ] time - limits referred to in LAW ... and QUANTITY of the Code of Criminal Procedure [ as amended by the Law of DATE on LAW to LAW and Other Criminal Statutes ] , the accused shall be maintained in detention until ORG gives a decision on a request for prolongation of such detention under LAW of LAW .

In cases referred to in § CARDINAL , if no [ such ] request has been lodged , detention shall be lifted not DATE . ”

Under all the relevant provisions of LAW read together , a detainee was entitled to appeal against any decision prolonging his detention on remand , regardless of whether it had been made at the investigative or judicial stage of proceedings . However , no appeal lay in law either against a decision containing a request under LAW , or against a decision of ORG granting such a request .


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

On DATE the applicant was arrested by the police for being in possession of a firearm . He was taken into custody at ORG and accused of having taken part in an armed attack on a bank .

On DATE a magistrate ordered the applicant ’s provisional detention .

Subsequently , the public prosecutor attached to ORG charged the applicant with being an accessory to the crime of murder and with having taken part in an armed robbery of a bank and having fired shots into a café . According to the prosecutor , the offences were committed as part of a terrorist campaign aimed at overthrowing the constitutional order , a campaign conducted by an illegal organisation , ORG ( PERSON Revolutionary Way ) .

NORP In its judgment of CARDINAL DATE ORG found the applicant guilty as charged . Although the applicant could have faced the death penalty for the offences at issue , the court commuted this to life imprisonment .

The applicant and the prosecutor appealed to ORG .

In its decision of CARDINAL DATE ORG quashed the lower court ’s judgment on the ground that the facts of the case had not been properly established .

On DATE the applicant was released on parole .

In its judgment of CARDINAL DATE ORG complied partially with ORG decision of CARDINAL DATE and sentenced the applicant to a term of imprisonment of DATE on the accessory to murder charge as well as on the charge of membership of an armed gang .

The applicant and the prosecutor lodged an appeal against the judgment . The prosecutor sought the applicant ’s conviction in respect of the armed robbery charge and his acquittal in respect of the accessory to murder charge .

On DATE ORG confirmed the applicant ’s conviction on the murder charge and quashed the judgment of ORG insofar as it acquitted the applicant of the armed robbery charge .

NORP The public prosecutor attached to ORG sought the rectification of the judgment of CARDINAL DATE and requested that the initial charges be lifted and that the charge against the applicant be categorised as CARDINAL of active membership of an armed gang .

NORP In its decision of CARDINAL DATE , ORG quashed the applicant ’s conviction for being an accessory to the crime of murder but considered that he was guilty of armed robbery . The court remitted the case file to ORG .

On DATE ORG issued a new arrest warrant against the applicant .

On DATE ORG sentenced the applicant to a period of imprisonment of DATE for membership of an armed gang and acquitted him of the remaining charges .

By a judgment dated DATE and notified to the applicant ’s lawyer on DATE , ORG declared that the criminal proceedings against the applicant were now time - barred .


CASE OF CAMPBELL AND COSANS v. THE UNITED KINGDOM (ARTICLE 50)

Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction)

The present case was referred to the ORG in DATE by both ORG ( " the Commission " ) and ORG of GPE and GPE ( " the Government " ) . The case originated in CARDINAL applications ( nos . CARDINAL/CARDINAL and CARDINAL ) against GPE lodged with the Commission in DATE by Mrs. PERSON and by Mrs. PERSON on behalf of herself and her son PERSON , the latter also being hereinafter referred to as an " applicant " .

By judgment of CARDINAL DATE , ORG held that the existence of corporal punishment as a disciplinary measure in the schools attended by the applicants’ sons did not constitute , as regards those children , a violation of LAW ) of the Convention but did constitute , as regards their parents , a breach of the second sentence of LAW No . CARDINAL ( PCARDINAL - CARDINAL ) . It also held that , as regards PERSON , his suspension from school following his refusal to accept such punishment had given rise to a breach of the first sentence of the last - mentioned LAW ( PCARDINAL - CARDINAL ) ( Series A no . DATE , points CARDINAL of the operative provisions and paragraphs CARDINAL - CARDINAL of the reasons , pp . CARDINAL ) .

The only outstanding matter to be settled is the question of the application of LAW ) in the present case . Accordingly , as regards the facts , the ORG will confine itself here to giving the pertinent details ; for further particulars , reference should be made to paragraphs CARDINAL of the above - mentioned judgment ( ibid . , pp . CARDINAL ) .

At the hearings on DATE , counsel for Mrs. PERSON had stated that , should the ORG find a violation , his client would seek just satisfaction under LAW ) in respect of moral damage and legal costs . The Government had not taken a stand on the matter , nor had counsel for Mrs. PERSON .

In its judgment of CARDINAL DATE , ORG reserved the whole of this question . ORG was invited to submit to the ORG , within DATE , written observations thereon and , in particular , to notify ORG of any friendly settlement at which the ORG and the applicants might have arrived ( point CARDINAL of the operative provisions and paragraph CARDINAL of the reasons , ibid . , pp . CARDINAL and DATE ) .

Following several extensions of the aforesaid time - limit by the President of the ORG and in accordance with his Orders and directions , the registry received :

These documents revealed that no friendly settlement had been arrived at . For ease of reference , further particulars of the ORG claims and of ORG and the ORG ’s position relative thereto are set out below in the section " As to the law " .

Mr. PERSON and Mr. PERSON , substitute judges , took the place of Mr. PERSON and Mr. PERSON , who were prevented from taking part in the further consideration of the case ( Rules CARDINAL § CARDINAL and CARDINAL § CARDINAL of ORG ) .

Having consulted , through the Registrar , the Agent of the Government and the Delegates of the Commission , the ORG decided on DATE that there was no call to hold hearings .


The applicant was born in DATE and lives in GPE .

NORP In DATE a limited liability company , ORG ( “ ORG ” ) , hired the applicant as an accountant .

In DATE ORG granted the applicant an interest - free loan for the purchase of a ORG Land Cruiser car . The terms and conditions of the loan were set out in a loan agreement of DATE signed by the applicant and the director - general of ORG , PERSON PERSON . The loan was for MONEY * ( “ RUR ” ) over a period of DATE . On DATE the total amount was transferred directly to the bank account of the car dealer .

On DATE ORG of the GPE Region registered the purchased car in the applicant 's name .

According to an undated certificate signed by the new ORG director - general , PERSON , the applicant reimbursed CARDINAL instalments of RUR CARDINAL,CARDINAL ( after denomination ) DATE and DATE and one additional instalment of RUR CARDINAL in DATE , to the total of ORG .

On DATE ORG of GPE convicted PERSON and the applicant 's husband , PERSON , of large - scale fraud . The applicant was a witness at the trial . It was established that the accused , while holding managerial positions in the ORG telecommunication company ORG , had founded the ORG company that acted as a broker in the procurement of telecommunication equipment for ORG . They used the ORG 's funds to make advance payments under the contracts for the purchase of telephones signed by ORG and then sold these telephones to ORG at inflated prices . The court found :

“ Being managers of ORG , PERSON and PERSON ... used their position ... to take advantage of the cash flow of [ the ORG ] for their personal gain . Moreover , relatives of the defendants were simultaneously employees of the ORG and ORG and they received a salary from both companies . It was established by the court ... that the salary of the ORG employees , loans and dividends were paid out of money that had been taken from [ the ORG ] ” .

The court noted that the applicant had not shown the loan agreement to the investigator and held :

“ As it was established by the court that the loans for the purchase of cars had been granted to PERSON and [ the applicant ] unlawfully , at the expense of [ the ORG ] , without appropriate documentation , the court considers it necessary to order forfeiture of the cars as compensation for the damage ( обратить в возмещение ущерба ) ” .

The court sentenced both Mr PERSON and Mr PERSON to DATE imprisonment and issued confiscation orders in respect of their property . It also recovered ORG from them and ordered forfeiture of the ORG company 's cash funds and the applicant 's and Mr PERSON 's cars as compensation for the damage .

In DATE the applicant 's car was seized . On DATE certain household items in the applicant 's flat were also seized .

The applicant brought a civil action , seeking to lift the seizure order in respect of her household items and the car .

On DATE ORG of GPE granted the applicant 's action in respect of the household items but upheld the seizure of the car , finding as follows :

“ The court has established that on DATE the ORG company and [ the applicant ] concluded a loan agreement , by the terms of which [ the applicant ] was granted a loan of RUR CARDINAL,CARDINAL,CARDINAL ... It is true that , according to the sale certificate of DATE and a copy of the vehicle registration card , the car at issue was registered in [ the applicant 's ] name . However , the court considers that the plaintiff 's arguments to the effect that she is the legal owner of the car ... are unsubstantiated because the judgment of ORG of GPE of DATE ... had established that the loan for the purchase of that car had been granted unlawfully and , accordingly , the car had been forfeited as compensation for damage . ”

On DATE ORG of ORG , on an appeal by the applicant , upheld the judgment of DATE . The court justified the seizure of the car in the following terms :

“ The [ first - instance ] court correctly refused [ the applicant 's ] claim ... because the circumstances showing that [ the applicant ] had purchased the car from her own ( borrowed ) money had not been confirmed ... [ T]here is no evidence that the borrowed funds were used for the purchase of the car , the loan was only reimbursed from [ the applicant 's ] salary and the last instalment was paid on DATE ” .

The Civil Code of GPE provides :

Where the law so provides , property may upon a court decision be taken away from its owner without compensation by way of punishment for commission of a crime or another offence ( confiscation ) .

Where the law so provides , a confiscation order may be issued in administrative proceedings . The decision on confiscation made in the administrative proceedings may be appealed against to a court . ”

LAW of the Russian Federation provides that “ punishment shall be imposed on a person found guilty of commission of a crime ” . DATE ( g ) provides that confiscation is a form of punishment . LAW confiscation of property as the “ compulsory withdrawal , in whole or in part , without compensation , of the property owned by the convicted person ” .

The RSFSR Code on Administrative Offences ( in force at the material time ) provided for the confiscation of things by means of which the administrative offence had been committed or which had been the object of the offence .

The RSFSR Code of Criminal Procedure ( in force at the material time ) provided that instruments of the crime which belonged to the defendant ( Article CARDINAL § CARDINAL ) and criminally acquired money and other valuables were to be forfeited whereas other items were to be returned to their lawful owner ( Article CARDINAL § CARDINAL ) .