CASE OF CREDIT AND INDUSTRIAL BANK v. THE CZECH REPUBLIC

Violation of Art. 6-1;Not necessary to examine P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant is a bank , a joint stock company with its registered office in GPE .

On DATE ORG Česká národní banka ) ( “ the ORG ” ) , pursuant to section CARDINAL ) of LAW ( no . CARDINAL ) ( zákon o bankách ) ( “ the LAW ” ) , placed the applicant bank in compulsory administration with effect from DATE to DATE , on the grounds that the financial situation and liquidity of the applicant bank had repeatedly been unsatisfactory and that the previous measures had not remedied the situation . A compulsory administrator ( nucený správce ) was appointed to replace the applicant bank 's statutory body . The decision ( rozhodnutí ) contained a notice to the effect that the provisions of administrative procedure did not apply to it and that no appeal lay against it .

On DATE the compulsory administration decision was published in the Commercial Bulletin ( obchodní vĕstník ) .

In a ruling ( usnesení ) of DATE the Prague CARDINAL ORG ( obvodní soud ) ( “ the ORG ” ) , upon the ORG 's proposal , decided to allow an entry concerning the compulsory administration and the appointment of the compulsory administrator to be made in ORG ( obchodní rejstřík ) . The ruling fixed the date of DATE as the date of the entry in ORG and stated that the compulsory administrator represented the applicant bank . The ruling was not served on the applicant bank . On DATE , the compulsory administrator and a representative of the ORG came to the bank and informed all employees that the applicant bank had been placed in compulsory administration . The representative of the ORG served the ORG 's decision of CARDINAL DATE on Mr Moravec , the chairman of the bank 's ORG and its majority shareholder . On DATE ORG confirmed its ruling of DATE by issuing a certificate of legal validity ( právní moc ) .

On DATE the applicant bank 's legal representative , Mr Choděra , sent his power of attorney to ORG , and requested that the proposal for an entry concerning the compulsory administration and ORG decision delivered in this regard be sent to his office . He noted that under LAW ) of LAW , the applicant bank was a party to the proceedings .

On DATE notice of the extension was published in the Commercial Bulletin . In a ruling of CARDINAL DATE ORG , upon a proposal of the ORG , approved an entry concerning the extension in ORG . The court did not hold a public hearing . On DATE it confirmed the ruling by a certificate of legal validity . The ruling was not served on the applicant bank .

On DATE and DATE respectively , the applicant bank , represented by the chairman of its ORG and PERSON , its legal representative , having become aware of the existence of the rulings of CARDINAL DATE and DATE , appealed against them to ORG ( městský soud ) ( “ the ORG ” ) . It claimed that it should have been treated as a party to the proceedings in which the court had approved the entries concerning the compulsory administration and its extension in ORG , and contended that the rulings had not been served on it . The applicant bank also claimed that the ORG 's decision of CARDINAL DATE had not been sufficiently reasoned and that it was therefore not able to say whether the compulsory administration had been imposed in accordance with the law or not , and that the decision contained an incorrect notice to the effect that no appeal lay against it . It added that when the rulings of ORG were served on it , it would make more complete submissions .

In a ruling of CARDINAL DATE , rejecting the appeals against the rulings of CARDINAL DATE and DATE without holding a public hearing , ORG stated , inter alia :

“ ... the decisions of the [ ORG ] concerning the imposition of compulsory administration and its extension were fully within its competence under LAW of [ the LAW ] . ... In the light of the decision of DATE , compulsory administration was imposed because of the repeatedly unsatisfactory financial situation ... of the bank . Section CARDINAL ) of [ the LAW ] expressly states that administrative law applies to the procedure concerning the imposition of penalties ... Administrative law does not , therefore , apply to other decisions taken under LAW ... It is true that the court of first instance acted incorrectly when it did not notify both rulings to the appellant . However , it is apparent from the appeals which the appellate court considered to have been lodged in time that [ the appellant ] has become familiar with both of them ... [ Moreover ] , the entries in ORG were made [ by the court of first instance ] in accordance with LAW [ of LAW ] . ”

On DATE the applicant bank , represented by the chairman of its ORG and PERSON , filed an appeal on points of law ( dovolání ) with ORG ( Vrchní soud ) against ORG ruling of CARDINAL DATE , pursuant to Articles CARDINAL ) and CARDINAL § CARDINAL(d ) of LAW .

On DATE the bank lodged a constitutional appeal ( ústavní stížnost ) with ORG ( GPE PERSON ) against ORG rulings of DATE and DATE and ORG ruling of CARDINAL DATE , with a proposal to repeal sections CARDINAL ) and CARDINAL ) of the Act .

On DATE the ORG extended the compulsory administration until DATE . On DATE notice of the extension was published in the Commercial Bulletin . In a ruling of CARDINAL DATE ORG , upon a proposal by the ORG , approved an entry concerning the extension in ORG . The court did not hold a public hearing . On DATE , it approved the ruling by issuing a certificate of legal validity . The ruling was sent to the office of Mr Choděra . On DATE and CARDINAL DATE the applicant bank , represented by PERSON , appealed against the ruling to ORG .

In the meantime , on DATE , ORG had declared the applicant bank 's constitutional appeal inadmissible , finding , inter alia , that the ruling of CARDINAL DATE had not been served on the parties to the proceedings and , therefore , had not become final .

On DATE Act No . CARDINAL/CARDINAL , which amended the LAW as regards , inter alia , the procedure on compulsory administration , came into force . Section IV provided that the LAW was applicable in all cases where compulsory administration had been imposed before that date .

On DATE the ruling of ORG of DATE was served on the applicant bank and thereby became final .

On DATE the applicant bank , represented by the chairman of its ORG and PERSON , renewed its appeal on points of law against ORG ruling of CARDINAL DATE . The appeal contained the same arguments as in the previous appeal , which appeal had , however , been lodged before the notification of the ruling .

On DATE the applicant bank , represented by the chairman of its ORG and PERSON , lodged a second constitutional appeal against ORG ruling of CARDINAL DATE . It pointed out that the ruling had become final by its notification and that , therefore , an appeal lay against it to ORG . It submitted that it should have been a party to the proceedings on entries in ORG and that all decisions relating to these proceedings should have been served on it . It further challenged an allegedly wrong interpretation of section CARDINAL ) of the LAW by ORG and suggested that this provision , together with CARDINAL ) of the LAW , should be repealed .

On DATE ORG dismissed the applicant bank 's appeal against ORG ruling of DATE as being lodged by an unauthorised person . The court found that the applicant bank 's statutory body had , pursuant to section CARDINAL ) of the LAW as amended , been replaced by the compulsory administrator , who alone could represent the bank or authorise a legal representative , but who had not granted such authorisation to Mr Choděra .

On DATE the ORG decided that the compulsory administration would not finish on DATE , but would be terminated for CARDINAL of the reasons indicated in section CARDINAL of the Act as amended . On DATE that decision was entered in ORG .

In the meantime , on DATE , the applicant bank , represented by the chairman of its ORG and by Mr Choděra , had lodged a third constitutional appeal , this time against ORG ruling of CARDINAL DATE . It complained , in particular , that ORG had violated the applicant bank 's right to be protected by a court considering that its appeal had been lodged by an unauthorised person . It further suggested that section IV(CARDINAL ) of Act No . CARDINAL/CARDINAL should be repealed .

On DATE ORG declared inadmissible the applicant bank 's second constitutional appeal against ORG ruling of CARDINAL DATE , holding in particular that when the constitutional appeal had been lodged , ORG had been dealing with the applicant bank 's appeal and the appeal on points of law filed in the meantime had still been pending . Accordingly , no final decision had been given at that stage .

On DATE ORG dismissed the applicant bank 's third constitutional appeal as being unsubstantiated and as being lodged by an unauthorised person . The court stated , in particular :

“ ... ORG founded its decision expressly on section CARDINAL(CARDINAL ) of [ the LAW ] ... according to which a compulsory administrator replaces the statutory body of a bank during compulsory administration . ... [ The applicant bank 's legal representative ] was not authorised by the compulsory administrator of the bank to make an appeal or lodge a constitutional appeal .

... ORG found from the case file of the Prague CARDINAL ORG that the decision imposing compulsory administration ... was ordered by the [ ORG ] on DATE ... The compulsory administration became effective , in accordance with section CARDINAL(CARDINAL ) of [ the LAW ] , by its registration in ORG , pursuant to the GPE CARDINAL ORG ruling of DATE which became final on DATE . ...

Moreover , according to [ the LAW ] , administrative law was not applicable to proceedings concerning compulsory administration , with the exception of cases explicitly referred to in this LAW ( sections CARDINAL ) and CARDINAL ) . Administrative law became applicable only after the entry into force of Act No . CARDINAL ( section CARDINAL ) ) . To that end , an administrative complaint could be lodged against a decision given by the [ ORG ] ( section CARDINAL(CARDINAL ) ) . An administrative complaint could also be made under LAW ) of [ the LAW ] . However , only by LAW CARDINAL(CARDINAL ) of the [ LAW ] as amended did the [ ORG ] become obliged to notify its decision on compulsory administration to [ the bank ] . In addition the administrative complaint does not have suspensive effect ( section CARDINAL) ... ”

On DATE , pursuant to section CARDINAL(CARDINAL ) of the Act as amended , the ORG withdrew the applicant bank 's banking licence ( povolení působit jako banka ) and on DATE , on an appeal of the applicant bank , it confirmed that decision .

On DATE ORG instituted bankruptcy proceedings against the applicant bank .

On DATE ORG stayed the proceedings instituted on DATE by the applicant bank , represented by Mr Choděra , against the ORG and the compulsory administrator , requesting the latter to fulfil his obligation ( o splnění povinnosti nuceného správce ) . It stated that the applicant bank had not submitted a power of attorney .

On DATE ORG , to which the appeal on points of law against ORG ruling of CARDINAL DATE had been referred , stayed the proceedings on the ground that PERSON had not paid the court fees despite having been ordered to do so by the court 's ruling of CARDINAL DATE , which was modified on DATE and served on him on CARDINAL DATE .

On DATE ORG quashed ORG ruling of DATE , stating , inter alia :

“ There is no doubt that the claim was made on DATE and that a power of attorney issued by the applicant bank 's statutory body was attached to it . There is also no doubt that on DATE bankruptcy proceedings were instituted against the bank ... ( By DATE ) the company that had been declared bankrupt had not lost its capacity to act in legal proceedings but only the right to dispose of property forming part of the estate of the company . By section CARDINAL(CARDINAL)(h ) of Bankruptcy and Equalisation Act No . CARDINAL/CARDINAL [ ( zákon o konkurzu a vyrovnání ) ] , powers of attorney relating to the property forming part of the estate of a company declared bankrupt lose their validity . However , that was not so in the present case ... ” .

On DATE ORG declared inadmissible the applicant bank 's appeal on points of law against ORG ruling of CARDINAL DATE . It held that pursuant to LAW , an appeal on points of law was admissible if a party to the proceedings could not act as a result of a procedural step taken by the court . According to the law then in force , compulsory administration became effective on the date on which the relevant entry was made in ORG ; the applicant bank 's own statutory body was therefore empowered to act on its behalf until that date and to appeal against the ruling of ORG on the registration of the compulsory administration in ORG . ORG had then to notify its ruling to the applicant bank . However , in the present case the applicant bank had validly appealed against the ruling concerned to ORG , which had considered it on the merits . Seeing that the ruling was not reasoned , notification of it could not improve the procedural position of the applicant bank . ORG added that the fact that the applicant bank had not received the text of the ORG 's proposal for the entry concerning the compulsory administration in ORG did not remove the applicant bank 's right to act in proceedings before the court as provided for in LAW .

In so far as the appeal on points of law concerned the entry of the first extension of the compulsory administration in ORG , ORG pointed out that section CARDINAL of the LAW as in force at the time when compulsory administration had been imposed provided that compulsory administration became effective on the date on which the relevant entry was made in ORG , the functions of the statutory body of the bank being suspended by the appointment of a compulsory administrator until the compulsory administration ended . In the present case , on DATE the statutory body of the applicant bank had been replaced by the compulsory administrator , who alone was entitled to appeal in the proceedings concerning the proposal for an entry concerning the extension of compulsory administration to be made in ORG . However , the appeal against ORG ruling of CARDINAL DATE had been lodged by PERSON who had acted on the basis of a power of attorney issued by PERSON , chairman of the applicant bank 's ORG , on CARDINAL DATE .

On DATE ORG likewise declared inadmissible the applicant bank 's appeal on points of law against ORG ruling of CARDINAL DATE . It stated , inter alia , that LAW provided that an appeal on points of law was admissible if the person who acted as a party to the proceedings lacked the capacity to be the party to those proceedings . The applicant bank claimed that the compulsory administrator had not had the capacity to be the party to the proceedings . ORG stated that in the present case the applicant bank had the capacity to be a party to the proceedings ; another question was who could act on its behalf before the court .

ORG then examined the conditions of admissibility of the applicant bank 's appeal on points of law under LAW . It stated that according to the law then in force , compulsory administration became effective on the date on which the relevant entry was made in ORG ; on that date the statutory body of the bank was replaced by the compulsory administrator . Article CARDINAL(b ) § CARDINAL of LAW provided that the court decided on the contents of the entry in ORG without holding a hearing . It specified the date of the entry in its decision . The entry had to be effected within DATE after the decision had been taken . ORG underlined that the date of the entry in ORG was not to be confused with the date on which the decision authorising the entry was delivered , with the date of its notification , or with the date on which the court approved the decision by issuing the certificate of legal validity . The court concluded that the compulsory administrator alone was entitled to appeal in the proceedings concerning the proposal to make an entry in ORG of the second extension of the period of compulsory administration . However , the appeal against ORG ruling of DATE had been lodged by PERSON who had acted on the basis of a power of attorney issued by PERSON , chairman of the applicant bank 's ORG , on CARDINAL DATE . Consequently , the applicant bank had not had the right to have its appeal examined on the merits by the appellate court .

On DATE the applicant bank , represented by PERSON , lodged a fourth constitutional appeal , this time against CARDINAL decisions of ORG , alleging a violation of LAW .

Until DATE compulsory administration proceedings were governed by LAW ( No . CARDINAL/CARDINAL ) ( “ the LAW ” ) . LAW ) of the LAW provided that compulsory administration was a measure which ORG ( “ the ORG ” ) , as an administrative authority under section CARDINAL(CARDINAL ) of ORG ( No . CARDINAL/CARDINAL ) , could impose upon a bank if it did not comply with the conditions laid down in its banking licence and/or if it infringed the law . Under section CARDINAL , the ORG was empowered to impose compulsory administration on a bank if the bank 's financial situation and liquidity failed considerably or repeatedly to satisfy the conditions laid down in the LAW , and previous measures or sanctions had not remedied the situation . Under section PERSON ) , compulsory administration became effective on the date of the relevant entry in ORG , the ORG not being required to notify the bank of its decision to place it in compulsory administration . Before registration , the decision to impose compulsory administration was published in LAW . Section CARDINAL ) provided that the functions of the bank 's statutory body were suspended by the appointment of a compulsory administrator until the end of the compulsory administration . Under section CARDINAL , the compulsory administrator was entitled to take measures necessary to restore the stability and liquidity of the bank concerned , including closure of its branches or other administrative units . Under section CARDINAL , compulsory administration could be terminated by : ( a ) revocation , if there were no longer any reasons for its continuance ; ( b ) expiry of the period originally fixed by the ORG , if that period had not been extended ; and ( c ) withdrawal of the bank 's banking licence .

LAW did not oblige the ORG to notify its decision concerning the imposition of compulsory administration to the bank concerned . It did not specify the maximum period of compulsory administration , did not contain any reference to the application of administrative law to compulsory administration proceedings , did not specify the parties to the proceedings and did not indicate any remedy against a decision imposing compulsory administration .

Compulsory administration proceedings were modified by Act No . CARDINAL ( “ the LAW as amended ” ) which entered into force on DATE . It was applied to all cases in which compulsory administration had been imposed before that date . Pursuant to the new section CARDINAL ) , administrative law applies , inter alia , to proceedings concerning the imposition and withdrawal of compulsory administration , unless LAW provides otherwise . The bank is the sole party to the proceedings ( section CARDINAL(CARDINAL ) ) which can also be institute by the notification of the decision ( section PERSON ) ) . Pursuant to the new section CARDINAL ) , the ORG shall notify a member of the bank 's ORG ( představenstvo ) or a member of its ORG ( dozorčí rada ) or a person empowered to direct the bank of its decision imposing compulsory administration on the bank . The bank can lodge an administrative complaint ( rozklad ) against such a decision . The complaint does not have suspensive effect ( section CARDINAL(CARDINAL ) ) . Pursuant to section CARDINAL(CARDINAL ) , the functions of all organs of the bank are suspended upon the notification of the compulsory administration decision . The compulsory administrator assumes the functions of the statutory organ . Section CARDINAL(c ) limits the maximum period of compulsory administration to DATE .

Article CARDINAL of LAW No . ORG ) recognises as a party to proceedings any person whose rights , obligations or interests protected by law are to be dealt with , or whose rights , obligations or interests protected by law may be directly affected by an administrative decision . Article CARDINAL provides that any administrative decision taken by a central ORG administrative authority at first instance may be contested by an administrative complaint lodged within DATE from the date on which the administrative decision was served .

Certain provisions of LAW were also applied in the present case .

Article CARDINAL provides , inter alia , that “ unless otherwise provided by law , the court shall decide in the form of a ruling ( usnesení ) ” .

LAW provides , inter alia , that “ the court shall serve a ruling on the parties if such ruling may be appealed against or an appeal on points of law is filed ... ”

Article CARDINAL § CARDINAL provides , inter alia , that “ if the ruling does not impose a duty of performance , it becomes enforceable ( vykonatelný ) as soon as it is served ” .

Article PERSON ) provides that

“ ( CARDINAL ) In proceedings concerning an entry in ORG , the court shall examine whether all the conditions required by the statutory provisions for making such entry are met .

( CARDINAL ) The court decides on the content of a particular entry by a ruling without holding a hearing . The verdict in the ruling shall state the date of the entry . The entry is to be made within DATE of issuing the decision on the content of such entry .

( CARDINAL ) The provisions on disciplinary fines shall apply if a company fails to comply with the court 's request to notify the court of the facts , or to submit the documents , required for making an entry under LAW . ”

Article CARDINAL provides that

“ An appeal on points of law ( dovolání ) is admissible against a decision of an appellate court if :

( b ) a person who acted as a party in the proceedings lacked the capacity to be such party ;

( f ) a party to the proceedings was deprived from acting before the court through a faulty procedure applied by the court . ”

Article CARDINAL § CARDINAL(d ) provides that an appeal on points of law may be filed “ if a decision was based on incorrect legal consideration of the case . ”

LAW of the Code governs the conditions for the review of decisions of administrative authorities ( správní žaloba ) .

Article CARDINAL provides :

“ ( CARDINAL ) The provisions of this LAW shall apply to cases when an individual or a legal entity claims that his or its rights were curtailed by a decision of an administrative authority and a request for review is filed with the court seeking a review of that decision from the viewpoint of its legality .

( CARDINAL ) Regarding a decision issued as part of administrative proceedings by an administrative organ , the provisions of this LAW shall only apply to a review of that decision in respect of which all ordinary legal remedies admitted by law have been made use of and the decision in question has become final .

Article CARDINAL ) § CARDINAL provides that the request for review shall be filed within DATE of the notification of the decision of the administrative authority in the last instance , unless the law provides otherwise .

Under LAW , the facts at the time when the decision in question was given are decisive . No examination of evidence takes place .

Article ORG ) § CARDINAL provides , inter alia , that the court , upon finding that the decision in question has been made in accordance with law , shall reject the request for review .

Article ORG ) § CARDINAL provides , inter alia , that the court , upon finding that the administrative authority did not consider the matter correctly from the legal point of view or that the facts on which it founded its decision were contrary to the content of the file , shall quash the decision and may return the matter to the indicated administrative authority for further proceedings . The court shall also quash a decision when it emerges during a hearing that the decision can not be reviewed because it is incomprehensible or because of lack of reasons .

Finally , LAW No . CARDINAL/CARDINAL ) provides that the facts entered in ORG become effective with respect to everyone from the date on which the entry is made .


Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

The applicant served in the administration of GPE DATE , holding different posts .

The method and the basis of calculation of the pension to which the applicant is entitled have been modified several times by a series of regional laws .

Amongst others , according to Regional Law No . DATE , the applicant 's pension was recalculated and increased . Further modifications in the determination of the applicant 's pension were made on the basis of Regional Law No . DATE .

NORP In DATE the applicant filed an application with ORG seeking recognition and payment of the increase of pension granted by Regional Law No . DATE . On DATE ORG admitted the claim and ordered that LOC pay the applicant the increases of pension he was entitled to , the revaluation of the amounts due and the statutory interest , accrued from DATE to the date on which the applicant would actually receive them .

NORP In relation to the delays in complying with the decision of ORG of DATE , the applicant filed “ compliance ” proceedings ( “ ricorso per l'ottemperanza ” ) with ORG ( RAC ) .

On DATE ORG granted the claim and ordered the competent regional administration to comply fully with the above - mentioned judgment within DATE from the date when the decision would be served or communicated to the applicant . ORG also nominated a special commissioner ( “ commissario ad acta ” ) who was to intervene if , upon expiration of the DATE - period , the administration of the Region had not paid . The commissioner was empowered to take the necessary measures to ensure compliance with the decision within DATE at the latest .

According to the calculations made by the applicant 's counsel and covering a period up to DATE , the applicant was entitled to receive the overall gross sum of CARDINAL NORP lire ( ORG ) . The Government have not disputed these calculations .

On DATE , the competent regional administration paid to the applicant MONEY ITL . However , on CARDINAL DATE the Presidency of the GPE region urged the competent regional administration to speed up the compliance with a series of judgments favourable to the applicant , including the CARDINAL at issue . Subsequently , on DATE the applicant received QUANTITY ITL . Yet the applicant contested this sum and complained that the competent administration had used a different method of calculation than the one envisaged by the ORG judgment of DATE .

In any event , the applicant maintains that on DATE he was still entitled to receive the sum of MONEY ORG . The Government have not disputed this allegation .

On DATE the applicant had lodged another application ( No . CARDINAL/CARDINAL ) with ORG ( jurisdictional section for LOC ) , claiming that Regional Laws No . CARDINAL/CARDINAL and No . DATE had been erroneously enforced and seeking a recalculation of his pension . A first hearing was fixed at DATE .

This controversy was settled by a judgment of DATE , filed with the registry on CARDINAL DATE , which partially granted the applicant 's claim .


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

On DATE the applicant 's apartment in the city of GPE , GPE , was sold by Mr O. ( the applicant 's nephew ) , who allegedly acted under a written authority issued by the applicant , to PERSON ( a private person ) . The applicant continued to live in the flat until an unknown date in DATE , when he left GPE and took up residence in GPE .

On an unspecified date the applicant filed a criminal complaint against Mr O. , stating that he had stolen his passport and forged his signature on the written authority to sell the apartment .

On DATE an investigator of FAC of GPE ( PERSON районний відділ внутрішніх справ , hereafter “ FAC ” ) instituted criminal proceedings against Mr O. for forgery and fraud .

On DATE PERSON sued the applicant before ORG of Odessa ( hereafter “ the ORG ” ) seeking his eviction from the apartment at issue .

On DATE the applicant filed with ORG a counterclaim against PERSON seeking to have the sales contract for the flat declared null and void for fraud .

On DATE an expert with ORG of ORG ( ORG області , hereafter “ the Expert Unit ” ) , in the course of the criminal investigation against Mr O. , issued an opinion in which he stated that the signature on the written authority had been executed by a person other than the applicant .

On DATE ORG requested from FAC a copy of the expert 's report of DATE .

On DATE ORG held the first hearing , which was adjourned because of the failure of Mr O. ( a witness in this case ) failure to appear .

On DATE ORG requested ORG ( Одеський Науково-Дослідний Інститут Судових Експертиз , hereafter “ the Institute ” ) to carry out an expert examination of the applicant 's signature on the authority .

On DATE the applicant amended his statement of claim , adding a claim for compensation for non - pecuniary damage .

On DATE an expert with the ORG submitted her report , stating that there was a possibility that the authority had been signed by the applicant with a disguised handwriting .

The hearing scheduled for DATE was adjourned on account of PERSON lawyer failure to appear .

On DATE the applicant challenged the presiding judge before the President of ORG . On DATE this challenge was accepted and another judge was appointed to hear the case .

Of the CARDINAL hearings listed DATE and DATE CARDINAL were adjourned due to PERSON and her lawyer 's failure to appear , and CARDINAL due to the applicant 's absence . On an unspecified date during this period the applicant 's case was transmitted from ORG to the Illichevsky District Court of Odessa ( hereafter “ ORG ) .

On DATE ORG decided to suspend the proceedings pending the outcome of the criminal proceedings against Mr O. The applicant appealed against this decision .

On DATE ORG ( hereafter “ the Regional Court ” ) found that the appeal had been lodged out of time and invited ORG to determine the admissibility of the applicant 's appeal .

On DATE ORG granted the applicant leave to appeal out of time .

On DATE ORG allowed the applicant 's appeal , quashed the decision of DATE and ordered a different judge of ORG to examine the merits of the case .

On DATE an expert of ORG , following an additional examination carried out as a part of the criminal investigation , found that the signature on the authority form had not been made by the applicant .

NORP The proceedings before ORG resumed on DATE .

On DATE ORG , following a request of PERSON , ordered a further expert examination of the signature .

On DATE the Institute informed ORG that the examination could not be carried out as PERSON had failed to pay the expert 's fee .

The proceedings resumed on DATE , but were adjourned due to the applicant 's and his lawyer 's absence . As the applicant failed to appear for the hearings scheduled for CARDINAL and DATE , on the latter date ORG dismissed his claims and , noting that PERSON had withdrawn her eviction action as by that time the applicant had moved out of the disputed flat ( see paragraph CARDINAL above ) , discontinued the proceedings . The applicant filed an appeal against this decision and asked for leave to appeal out of time .

On DATE ORG allowed the applicant 's appeal and ordered that the proceedings before the first instance court be continued .

The proceedings resumed on DATE . The applicant asked ORG to hear his case in his absence . The court decided that the applicant 's presence was indispensable for the determination of the case and adjourned the proceedings until DATE .

Between DATE and DATE the ORG fixed CARDINAL hearings , CARDINAL of which was cancelled due to the applicant 's lawyer 's failure to appear . During this period the applicant 's lawyer made CARDINAL unsuccessful challenges to the impartiality of the presiding judge .

On DATE ORG , basing its reasoning principally on the expert 's report of DATE , rejected the applicant 's claim as unsubstantiated . The applicant appealed .

On DATE ORG of ORG ( hereafter “ the ORG ” ) granted the applicant 's appeal and quashed the judgment of CARDINAL DATE , holding that ORG had failed to attach due weight to the evidence collected in the course of criminal investigation against Mr O. and had overestimated the importance of the expert 's report of CARDINAL DATE .

On DATE the President of ORG lodged a protest ( an extraordinary appeal ) with the Presidium of ORG ( hereafter “ the ORG ” ) against the ruling of CARDINAL DATE . He considered that the judgment of CARDINAL DATE had been quashed by the ORG unreasonably and that the first instance court had correctly established the relevant facts , and had given cogent reasons for its decision .

The protest was examined on DATE by the ORG under the chairmanship of the President of ORG . Having accepted the reasons set out in the protest , the ORG quashed the ruling of CARDINAL DATE and upheld the judgment of CARDINAL DATE , which became final and binding immediately . Neither the applicant nor his representative was invited to comment upon the protest or to participate in the hearing before the ORG .

On DATE the decision of the ORG , together with the case - file , was sent to ORG .

On DATE the applicant sent a letter to ORG requesting it to account for the delay in the proceedings . On DATE ORG informed the applicant about its ORG 's decision and sent him a copy .

On DATE the applicant lodged an appeal against the decision of DATE under the new cassation procedure .

On DATE ORG decided not to deal with the appeal because the applicant had failed to meet the relevant procedural requirements , namely clearly to specify which law he alleged to have been breached by the lower courts and in what way .

On DATE ORG adjourned consideration of the applicant 's cassation appeal and suggested that he remedy its shortcomings by DATE .

On DATE ORG dismissed the applicant 's cassation appeal because he had failed to comply with the relevant procedural requirements .

The outcome of the criminal proceedings against Mr O. is unknown .

The parts of LAW ( as in force at the material time ) relating to the supervisory review and of the PERSON on the Introduction of Changes to the Code of Civil Procedure of DATE are set out in the judgment of CARDINAL DATE in the case of PERSON v. GPE ( no . CARDINAL/CARDINAL , § § CARDINAL- CARDINAL ) .

Article CARDINAL of the Code of Civil Procedure , as in force at the relevant time , provided that the rulings of the courts of appellate instance were not subject to appeal and became final and binding upon their issuance .


Violation of Art. 10;Just satisfaction reserved

ORG Dr. PERSON , who was born in DATE , is a veterinary surgeon practising in GPE - Fuhlsbüttel . In DATE and until DATE , his practice operated as a " veterinary clinic " , of which there were CARDINAL in GPE at the time . He closed down this clinic on CARDINAL DATE but subsequently re - opened it on DATE .

ORG By virtue of ORG of DATE ( Tierärztekammergesetz - " the DATE LAW ) , the applicant is a member of ORG , whose task , among other things , is to ensure that its members comply with their professional obligations ( section CARDINAL and section CARDINAL sub - section no . CARDINAL of the DATE Act ) . These obligations are laid down principally in LAW ( Berufsordnung der Hamburger Tierärzteschaft - " the Rules of Professional Conduct " ) , which were promulgated on DATE by ORG in pursuance of section CARDINAL sub - section CARDINAL no . CARDINAL of the DATE Act and approved on DATE by the ORG ( ORG ) of ORG ( section CARDINAL sub - section CARDINAL ) .

ORG As the director and proprietor of a clinic , Dr. PERSON provided a round - the - clock emergency service ( Rule CARDINAL of LAW DATE on ORG Richtlinien zur Einrichtung von tierärztlichen PERSON ; see also paragraph CARDINAL below ) . This was not necessarily the case as far as other veterinary surgeons were concerned ( praktische Tierärzte - see paragraph CARDINAL below ) .

From DATE onwards , the applicant - who was one of the authors of the above - mentioned Regulations and who had insisted on the provision of a round - the - clock service by clinics - advocated within the ORG that a regular night service involving the participation , by rota , of all veterinary surgeons should be organised . However , the majority of his colleagues voted on CARDINAL occasions , on DATE and DATE , against such a proposal ( see also paragraph CARDINAL below ) .

ORG On DATE , there appeared in the DATE newspaper Hamburger PERSON an article signed by Mrs. B , a journalist , and entitled " Tierärzte ab QUANTITY Warum ‘ Shalen’ die QUANTITY noch überlebte " ( " Veterinary surgeons hard to reach after TIME - why " Shalen " managed to survive the night after all " ) .

The article , CARDINAL lines and CARDINAL columns long , comprised an introductory paragraph and in brackets , in bolder type , the CARDINAL following sub - heads : " GPE eine spätere PERSON vertröstet " ( " Put off until later " ) , " Unfreundliche Absage " ( " Unfriendly refusal " ) and " Zur Not hilft die GPE " ( " Police to the rescue " ) .

The introductory paragraph , in bold type , read as follows :

" When the owner of a domestic pet needs help at TIME for his beloved animal , he may often become desperate : not CARDINAL veterinary surgeon can be contacted . This state of affairs ought now to improve . There are plans to bring in a new Act on veterinary surgeons , along the lines of the GPE legislation governing doctors . According to Dr. PERSON , veterinary surgeon and Chairman of ORG which is part of ORG ( Bundesverband praktischer ORG . ORG ) , ‘ it will also regulate the emergency night service’ . At present , it is true , a few clinics voluntarily provide an emergency service from time to time , and [ other ] veterinary surgeons also help , but this is not on a regular basis and does not give pet - owners security . They only do it voluntarily . "

The journalist writing the article began by recounting the efforts made by the owners of the cat " Shalen " to find a veterinary surgeon prepared to help them TIME After telephoning in vain to CARDINAL veterinary practices and to the emergency service , apparently they at last struck lucky : " Dr. PERSON , director of the GPE veterinary clinic , intervened " . The journalist then quoted the applicant as saying : " It was high time ; ... [ the cat ] would not have survived TIME . "

According to the author , Mrs. B , the particular case disclosed a problem , namely the inadequacy of the emergency service , DATE TIME There followed a passage which read :

" ‘ I think that in a big city such as GPE there ought to be a regular service for attending to animals’ , Dr. PERSON emphasised .

GPE ’s animal lovers " - added the journalist , summarising her interview with Dr. PERSON - " would then no longer have to get sore fingers trying to ring up veterinary surgeons , looking for one who is prepared to help . In that case it would not only be the clinics which would voluntarily be on emergency duty round the clock ; each of the CARDINAL practising veterinary surgeons would be on night duty once a month if arrangements were made for CARDINAL of them to be on duty each night .

The fact that there is a demand for an emergency service at TIME - time is illustrated by Dr. PERSON by reference to the number of calls received by his practice TIME : ‘ Our telephone rings CARDINAL times each night . Of course these are not all emergency cases . Sometimes advice over the telephone is all that is PERSON "

The author concluded the article by presenting under the third sub - head comments of Dr. PERSON , " Vice - Chairman of ORG and himself director of a clinic in GPE " . Believing that an emergency service organised on a rota basis " would not release clinics from dispensing their voluntary service but would lessen the strain on them " , Dr. PERSON said that he was actively trying to promote such a service . He added that the appropriate GPE authorities envisaged drafting the LAW on veterinary surgeons during DATE . Until it came into force , owners of animals would have to call CARDINAL veterinary surgeon after another - or else the police , who would normally be prepared to help them .

The article was illustrated by CARDINAL photographs . The larger , centrally placed , showed a cat and had the caption : " Um das Leben der kleinen ‘ Shalen’ wurde gekämpft - erfolgreich " ( " They fought for the life of little ‘ Shalen’ - and won " ) . The second one was an identity photograph which appeared alongside the title and introductory paragraph of the article ; it was a photograph of the applicant , though its caption erroneously gave the name of Dr. PERSON .

Below the photograph of the cat and outside the space occupied by the article , there was a short text under the heading " GPE - Stadt der Tiere " ( " GPE - city of animals " ) , giving the number of domestic pets , veterinary surgeons and veterinary clinics in GPE and the telephone number of the emergency service available at DATE and on DATE .

ORG On DATE , the Hamburger PERSON once again published the applicant ’s photograph under the heading " Unter dem Foto ein falscher Name " ( " Wrong name under photo " ) , together with the following explanation : " An error crept into our report DATE on the emergency veterinary service . Unfortunately , the wrong name appeared under the photograph . The person in question is in fact Dr. PERSON , director of the NORP veterinary clinic . "

ORG A number of Dr. PERSON ’s fellow practitioners , who regarded the article in question as publicity conflicting with LAW , referred the matter to the association " ORG für PERSON i m Geschäftsleben e . ORG " ( " ORG for fairness and trustworthiness in business " - " Pro Honore " ) . This association was founded in DATE by the businessmen of GPE and exists in order to " ensure honesty and good faith in all spheres of business life " and " in particular to combat unfair competition , fraud in connection with moneylending and corruption " ( article CARDINAL of the Charter of DATE ) .

DATE , PERSON was operating simultaneously as a branch organisation of the FAC zur FAC unlauteren GPE . PERSON - am - Main ( the GPE - am - ORG for Combatting Unfair Competition - " ORG " ) . The latter has been active for DATE in curbing unfair competition , and counts among its members all the chambers of industry , trade and crafts and CARDINAL other associations , including ORG . ORG and the Deutsche Tierärzteschaft e . V , which is the umbrella organisation of the councils and private associations of veterinary surgeons , are not members of the Agency .

Under LAW of LAW of DATE ( PERSON gegen den unlauteren PERSON - " LAW " ) , PERSON and ORG are empowered to bring against anyone engaged in business proceedings to restrain that person from breaking certain rules set forth in the LAW .

ORG On DATE , PERSON wrote to the applicant to say that it had been informed by certain veterinary surgeons that he had " instigated or tolerated , in the Hamburger PERSON of DATE , publicity on [ his ] own behalf " . The letter went on to quote extracts from the article in question . The applicant was said to have thereby infringed section CARDINAL of the CARDINAL Act in conjunction with Rule CARDINAL of LAW .

Section CARDINAL of the CARDINAL Act stipulates that : " Any person who in the course of business commits , for purposes of competition , acts contrary to honest practices ( gute PERSON ) may be enjoined from further engaging in those acts ( Unterlassung ) and held liable in damages . "

Rule CARDINAL of LAW deals with advertising and publicity ( ORG ) and reads as follows :

" It is contrary to the ethics of the profession ( standeswidrig ) :

( a ) to advertise publicly one ’s veterinary practice ,

( b ) to instigate or tolerate publicity or public acknowledgements on television , radio or in the press or other publications ,

( c ) to disclose case histories or methods of operation or of treatment elsewhere than in specialised journals ( ORG ) ,

( d ) to co - operate with non - veterinarians for the purpose of publicising one ’s own practice . "

PERSON asserted its right to bring proceedings against the applicant for unfair competition ( section CARDINAL sub - section CARDINAL of the CARDINAL Act ) and called on him , for the purposes of a friendly settlement of the matter , to sign an enclosed declaration . Under the terms of this declaration , he would undertake not to make publicity on his own behalf by instigating or tolerating press articles such as that which had appeared in the Hamburger Abendblatt , to pay ORG CARDINAL DM for each infringement and to pay ORG CARDINAL DM by way of costs incurred in asserting its right ( Rechtsverfolgung ) .

ORG A lawyer replied DATE on behalf of the applicant . The request made to Dr. PERSON was , he wrote , very close to blackmail . It was presumptuous ( GPE ) to speak of unlawful publicity . The reproaches directed against his client , who had not instigated the article complained of , had done considerable damage to his personal and professional reputation .

The applicant ’s lawyer asked PERSON to confirm in writing that it would be dropping its claim against his client , withdrawing its accusations and expressing regret . He also asked for reimbursement of his costs and announced that he would sue PERSON if it failed to meet his demands within DATE .

ORG then applied to ORG ( Landgericht ) for an interim injunction ( Articles CARDINAL and CARDINAL of the Code of Civil Procedure ) .

An interim injunction was issued on DATE by the presiding judge of the CARDINALth ORG . This decision forbade the applicant

" to report in the press ( except in professional journals ) , giving his full name , a photograph of himself and an indication of his occupation as director of the Fuhlsbüttel veterinary clinic , that at least on DATE TIME , animal lovers in GPE would get sore fingers from trying to telephone veterinary surgeons ready to help them , in conjunction with ( in GPE )

( a ) the statement that only veterinary clinics were on voluntary emergency duty round the clock , and/or

( b ) the statement that in his practice the telephone rang CARDINAL times TIME and TIME , though not all these calls were emergency cases and advice over the telephone would sometimes be sufficient , and/or

( c ) the description of a case in which the owner of an animal had tried in vain CARDINAL ordinary weekday TIME and TIME to find a veterinary surgeon to treat his cat , until finally he was lucky enough to contact Dr. PERSON , who acted when it was more than ‘ high time’ ,

and/or to contribute to such reports by giving journalists information " .

For each and every breach of the injunction , he was liable to a maximum fine ( NORP ) of CARDINAL ORG or non - criminal imprisonment ( NORP ) of DATE , the precise penalty to be fixed by the court .

ORG The applicant lodged an objection ( Widerspruch ) against this injunction ( Articles CARDINAL and CARDINAL of the Code of Civil Procedure ) . The competent ORG upheld the injunction , however , on DATE . He thereupon entered an appeal which was dismissed on DATE by ORG ( ORG ) of ORG ( ORG ) . Finally , on DATE , ORG ( Bundesverfassungsgericht ) , sitting as a bench of CARDINAL judges , decided not to entertain the constitutional application he had brought against the latter judgment and the interim injunction of DATE , on the ground that the application did not offer sufficient prospects of success .

ORG Before completion of the proceedings relating to the interim injunction , Dr. PERSON had asked ORG to set a time - limit within which ORG should commence the action as to the main issue ( Articles CARDINAL and CARDINAL of the Code of Civil Procedure ) ; whereupon the ORG instituted the necessary proceedings on DATE . Its statement of claim was couched in the same terms as the prohibitory injunction issued by ORG on DATE ( see paragraph CARDINAL above ) .

ORG On DATE , the CARDINALth ORG of ORG found in favour of the defendant .

ORG rejected certain objections raised by him as to the ORG ’s right of action . Nor did it accept his argument that the plaintiff , in complaining of an infringement of LAW , could not rely upon Rule CARDINAL , paragraph ( a ) , of LAW .

On the other hand , ORG was satisfied that the evidence adduced did not support the charge of infringing the rules governing competition ( PERSON ) . It had not been established that the applicant had influenced to an appreciable extent or tolerated the publication complained of . In fact , there were important indications pointing in the opposite direction . The author of the article had declared that Dr. PERSON ’s name had been mentioned without his knowledge . It could be inferred from her testimony that the applicant had not asked for his identity to be divulged and must have expected not to find mention of it in the newspaper . He might thus have believed - as indeed he asserted - that the Hamburger PERSON would do no more than discuss the deplorable situation brought about by the absence of a night service . In addition , it was quite possible that the article in question , instigated by the journalist , was not based solely on the interview with Dr. PERSON and that the newspaper or the journalist had included the name of Dr. PERSON and of his clinic so as to emphasise the difference between the latter - praiseworthy - clinic and other less helpful veterinary surgeons . The question whether the applicant had taken care , or at least endeavoured , to prevent his name and clinic being given prominence over his fellow practitioners had been impossible to elucidate - and this should not operate to Dr. PERSON ’s detriment - as the journalist had refused to give any further evidence , on the justified ground that she was not obliged to disclose her sources .

ORG On DATE , ORG , after declaring admissible the appeal brought by ORG , upheld the ORG ’s grounds of appeal , which reiterated the terms of the injunction granted on DATE ( see paragraphs CARDINAL and CARDINAL above ) .

ORG held in the first place that the applicant had infringed Rule CARDINAL , paragraph ( a ) , of ORG , a legally valid ( formell rechtmässig ) provision that was in conformity with LAW as well as other superior rules of law . That Rule did not unreasonably limit Dr. PERSON ’s right to freedom of expression as guaranteed by LAW , for there was nothing to prevent him from freely stating his opinion and in particular from criticising deplorable situations , even if this had the inevitable effect of producing publicity favourable to himself . The ORG was not seeking to restrain Dr. PERSON from making public pronouncements about veterinary assistance . Its application was concerned solely with a given form of conduct comprising - " cumulatively ! " - several aspects : the giving of Dr. PERSON ’s full name , the reproduction of his photograph , the mention of his being director of the NORP veterinary clinic and the statement that , CARDINAL TIME and TIME on working days , animal lovers in GPE would get sore fingers trying to telephone a veterinary surgeon willing to help them , plus CARDINAL of the CARDINAL assertions set out in the ORG ’s grounds of appeal ( and , previously , in the interim injunction of DATE - see paragraph CARDINAL above ) .

Objectively , the article complained of entailed publicity for Dr. PERSON : compared to other veterinary surgeons , it presented him as an exemplary practitioner , thereby being particularly likely to incite the owners of sick animals to turn to his clinic . Such publicity exceeded the bounds of objective comment on matters of justified concern for the applicant . If in the future he were to supply the press with information necessary for the writing of an article , he should , in order to avoid any infringement of Rule CARDINAL , paragraph ( a ) , of LAW , ensure beforehand that the text to be published did not involve any unlawful publicity or advertising , by reserving a right of correction or by agreeing on the form of the article with the journalist .

In the view of ORG , the respondent had at the same time contravened section CARDINAL of LAW . His intention of enhancing his own competitivity to the detriment of his competitors was to be presumed in the case of this type of publication , and that presumption was not rebutted in the circumstances . It mattered little ( unerheblich ) that he may additionally or even primarily have been pursuing other objectives , as there was an act done for the purposes of commercial competition as long as the intent to stimulate such competition had not been entirely overriden by other motives ( " nicht völlig hinter sonstigen GPE verschwindet " ) .

As for the risk of repetition , also presumed in this matter , there were no grounds for concluding that this was non - existent . Contrary to what ORG had found , the applicant had knowingly and substantially contributed to the publication which highlighted his person and his clinic . It was true that the press had itself taken up the case of " Shalen " and had invited Dr. PERSON to comment only after being informed of the incident by the animal ’s owner . However , the applicant had , by his interview , greatly influenced the content of the article and , what was more , had authorised a photograph to be taken of himself . He had thereby provided the opportunity for producing the article in question , with its character of publicity .

He could not have been unaware of this risk and LAW required him to ensure that the text to be published did not involve illegal publicity favourable to himself , by reserving a right of correction or by agreeing on the form of publication with the journalist . He could also have made an arrangement with Mrs. B to remain anonymous , although he was in no way obliged to express his views without disclosing his identity .

In fact , the respondent had acknowledged in his written pleadings of CARDINAL DATE and DATE that he had authorised the inclusion of his name and photograph . Although he retracted those statements on DATE and DATE , he had not shown that he had insisted on publication without inclusion of such details . The testimony of the journalist was not conclusive on this point . It was not necessary to take evidence from Dr. PERSON , because Dr. PERSON had unquestionably allowed photographs to be taken . That being so , he ought not to have contented himself with obtaining a verbal promise - as he claimed to have done - that he would not himself appear in CARDINAL of the photographs . Whilst he claimed to have told the journalist that ORG prohibited advertising and publicity , he was wrong to have passed on to her the responsibility of writing an article which complied with those Rules .

The danger of repetition persisted notwithstanding the time that had elapsed . The " Shalen " affair was no longer topical , but the press was likely to come back to the issues it had raised , by making reference to this incident along with others , after another interview with Dr. PERSON .

ORG decided finally not to give leave to appeal on points of law against its judgment : the latter did not depart from the established case - law of ORG ( ORG ) , and the case did not raise questions of principle .

ORG Dr. PERSON challenged the judgment of DATE before ORG . He repeated various arguments on which he had based his constitutional application in the interim proceedings ( see paragraph CARDINAL above ) , namely non - observance of equality before the law , of freedom of expression and of freedom to practise a profession , as safeguarded by Articles CARDINAL , CARDINAL and CARDINAL of LAW , and incompatibility of the obligation to belong to ORG with freedom of association , as guaranteed by LAW . In addition , he alleged violation of his right to be heard , in particular by a legally competent court ( gesetzlicher Richter ) . On this latter point , he claimed that it was not within the province of the civil courts to apply LAW .

ORG , sitting as a bench of CARDINAL judges , dismissed the constitutional application on DATE , on the ground that it lacked sufficient prospects of success .

ORG In GPE , veterinary medicine is governed partly by federal law and partly by the law of the Länder . The principal rules relevant to the present case are to be found in ORG ( Bundes - Tierärzteordnung , in the version of CARDINAL DATE - " LAW " ) , LAW of DATE on ORG ( " the DATE LAW above ) , LAW for ORG ( PERSON über die PERSON , in the version of DATE LAW " ) , LAW of DATE ( see paragraph CARDINAL above ) and the Regulations on the establishment of veterinary clinics ( see paragraphs CARDINAL above and CARDINAL below ) .

ORG The profession of veterinary surgeon is not an industrial , commercial or craft occupation ( PERSON ) but , by its nature , a liberal profession ( section CARDINAL ) of LAW ) . According to sub - section CARDINAL of section CARDINAL of LAW ,

" It shall be the task of the veterinary surgeon to prevent , alleviate and cure suffering and disease in animals , to contribute to the maintenance and development of productive livestock , to protect man from the dangers and harm arising from animal disease and from foodstuffs and products of animal origin , and to endeavour to improve the quality of foodstuffs of animal origin " .

In order to be able to practise on a permanent basis , an authorisation ( Approbation ) issued by the appropriate Land authorities is required ; such authorisation is granted if the person concerned satisfies the conditions laid down by law ( sections CARDINAL to CARDINAL of LAW ) .

ORG The veterinary surgeons practising in GPE constitute ORG , which is a public - law association ( sections CARDINAL and CARDINAL of the DATE Act ) . Its functions include defending the professional interests of the veterinary surgeons , ensuring that the latter meet their professional obligations and assisting the public health services ( öffentlicher ORG ) in the performance of their duties ( section CARDINAL of LAW ) .

The ORG ’s organs are the governing board ( ORG ) and the general assembly ; the latter adopts the LAW and LAW , which are submitted to ORG for approval ( sections CARDINAL and CARDINAL of the DATE Act ) .

The ORG is under the supervision of the ORG , which supervision extends to observance of the laws and the LAW ( section CARDINAL of LAW ) .

ORG LAW of the Hamburg Council require each veterinary surgeon to practise in such a way that the profession inspires respect and confidence ; the making of pejorative statements about the person , knowledge or skills of another veterinary surgeon is not allowed ( Rule CARDINAL ( CARDINAL ) and ( CARDINAL ) ) .

The Rules contain a number of provisions forbidding veterinary surgeons from advertising their own practices . Under Rule CARDINAL , veterinary surgeons may only intervene if asked to do so ; offering or providing their services without being requested is at variance with the rules of the profession . Rule CARDINAL deals more specifically with publicity and lays down conditions to be observed ( see paragraph CARDINAL above ) . In addition there are LAW and CARDINAL , which concern advertisements in the press and name - plates respectively .

ORG Each veterinary surgeon is required to intervene in the event of an emergency ( Rule CARDINAL ( CARDINAL ) ) ; he must ( soll ) participate in providing a service at DATE and on holidays and hold himself in readiness to replace any other colleague ( Rule CARDINAL ) .

The question of a night service for veterinary surgeons , a matter not dealt with in the law or LAW , has been the subject of debate within the profession ( see paragraph CARDINAL above ) . The ORG opted on DATE for a voluntary solution whereby veterinary surgeons indicate on a list the times when they may be contacted and the ORG communicates to the public , by means of an automatic reply service , the names of those veterinary surgeons who are available even outside TIME .

According to the Government , it was apparently quite a long time before a relatively sizeable number of veterinary surgeons agreed to participate in this scheme . In DATE , the ORG was said to have felt the need to launch an appeal for volunteers for DATE and emergency service .

Yet again , in DATE , the director of a veterinary clinic publicly criticised the working of the emergency service in GPE and stated that he had been unsuccessfully campaigning for DATE for a duty rota for all veterinary surgeons ( see PERSON of DATE ) .

However , according to the applicant , there has existed since DATE a system along the lines he had proposed . The Government did not contest this assertion .

ORG An establishment for the treatment of sick animals may be called a " veterinary clinic " if it has the requisite premises and equipment and if the ORG has given its approval ( Rule CARDINAL ) . The detailed rules are set out in Regulations promulgated by ORG ( see paragraph CARDINAL above ) , the most recent version of which dates from DATE . LAW lay down that henceforth clinics must provide a round - the - clock service for emergencies unless the ORG has made other arrangements guaranteeing adequate assistance .

ORG The DATE Act applies to any person seeking to derive income from a regular economic activity ; it thus covers industrial , commercial and craft activities , services and the liberal professions . It is designed to protect competitors and consumers , and applies independently of the texts , if any , governing the conduct of members of the liberal profession in matters of publicity and advertising .

ORG The courts with jurisdiction to deal with infringements of the DATE Act - principally the civil courts ( LAW ) - are not bound by any findings made by such professional tribunals as may have considered the same facts in the light of the professional rules governing publicity . However , it has been consistently held by ORG that breach of these professional rules will , in the normal course of things , also entail infringement of CARDINAL of LAW ( see paragraph CARDINAL above ) . The court having to decide the case on the basis of LAW must nonetheless inquire in each case whether the requirements of section CARDINAL are satisfied .

ORG By virtue of LAW , an action for contravention of , for example , section CARDINAL may be brought by any competitor , by trade and professional associations ( gewerbliche und Berufsverbände ) and , since DATE , by consumer associations .


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

The applicant is a NORP citizen , born in DATE and residing in GPE . He is currently serving a prison sentence in LOC .

On DATE , a robbery took place in the flat of a NORP couple , GPE and GPE The CARDINAL victims reported the incident to the police . They indicated that CARDINAL men had entered their flat , CARDINAL of them threatening GPE with a knife . The same person had forced GPE , under the threat of knife , to write down a receipt by which he recognised that he owed a debt of MONEY to another person .

On DATE , the applicant and GPE agreed to meet in a restaurant in order to collect payment of part of the debt . After the applicant had received from GPE an envelope with money , police officers had intervened and had arrested him . At the same time , the police officers apprehended GPE , who had been sitting outside the restaurant closely following the movements of GPE and the applicant .

On DATE , the police seized from the flats of the CARDINAL accused items related to the robbery , the knife used to threaten the victims , a wallet and residence permit belonging to H.Z.Y , as well as the stolen electronic equipment .

In CARDINAL of the first statements given to the investigative authorities , both accused denied the robbery .

After the prosecutor issued an indictment against the applicant on charges of robbery and blackmail and against F.Y on charges of robbery , the case was referred to ORG ( “ the ORG ” ) .

On DATE , ORG heard from the victims , CARDINAL witnesses who had attended the search of the GPE flats , the applicant ’s lawyer and both accused . GPE admitted that he had committed the robbery , but indicated that the applicant had not been involved . The applicant ’s request to have CARDINAL additional witnesses heard ( persons with whom he was sharing his flat ) was denied , as the court considered that their statements would be made pro causa .

By a judgment of DATE , ORG found the applicant guilty of both charges and sentenced him to DATE imprisonment . It considered that ORG new statement did not corroborate the other evidence . It noted that the applicant had not been consistent in his statements and that there were contradictions between the submissions of the CARDINAL accused concerning how they knew each other and why they had gone to the restaurant together on DATE . It considered that ORG new statement could be explained by the high standing that the applicant had within the NORP community , as person in charge of obtaining the extension of residence permits and recovery of monetary debts .

ORG applied the maximum sentence in the applicant ’s case , relying on the fact that during the trial he had displayed a violent attitude , threatening the victims in NORP while they were testifying and taking into account his criminal record and the circumstances in which the acts had been committed .

NORP The applicant and GPE lodged appeals , the former alleging that he was innocent and the latter asking for a milder sentence .

On DATE , upon the applicant ’s request , ORG , a new witness , testified in front of ORG , claiming that he had been involved in the robbery and that the applicant had been the victim of a trap .

ORG dismissed both appeals by a decision of DATE . After reviewing all of the evidence in the case file , it concluded that ORG ’s statement was untrue , as it had not been corroborated by the other evidence in the file .

The applicant lodged an appeal on points of law , alleging that he was innocent and that he had not committed the alleged crimes . ORG ( “ the Court of Appeal ” ) denied the request to have ORG called as a witness once more . By a final decision delivered on DATE , the appellate court upheld the decisions of the lower courts . After reviewing all the evidence available in the case file , including the statement made by ORG , ORG concluded that the evidence pointed to the applicant ’s guilt and that ORG ’s statement had not been corroborated by the rest of evidence .

After his final conviction , the applicant lodged an extraordinary appeal , which was dismissed by a final decision of ORG on DATE .

The applicant has been in prison since DATE of his arrest on DATE . He has been held in a number of different detention centres . No information is available in respect of his place of detention before DATE . From the latter date until DATE he was detained in PERSON . On DATE he was transferred to ORG , where he was held until DATE . He was then transferred to FAC . On DATE he was transferred from that prison to FAC . By letter of CARDINAL DATE , he informed the ORG that he was transferred to ORG .

In respect of the CARDINAL establishments , the applicant alleged that he had been kept in overcrowded cells , with poor hygiene conditions . In addition , he described the situation in each of the establishments , as detailed further below .

The applicant complains that during DATE and DATE , owing to extremely hot weather , the conditions in prison had been unbearable : there had been DATE to QUANTITY people in one cell ; QUANTITY to CARDINAL prisoners had shared the same bed ; he had had to share a bed with another prisoner who had had many wounds on his skin ; the water had been of very poor quality , having been of a yellow colour , smelling and containing worms . Sometimes , there had been no water DATE either for drinking or for the toilet . The food had also been of very poor quality .

On DATE the applicant was transferred to ORG .

Here , in cells originally planned for CARDINAL prisoners ( approximately QUANTITY in length and QUANTITY wide ) , there had sometimes been CARDINAL prisoners . The quality of food had been poor .

From DATE the prisoners had no longer been allowed to receive food by post and the only way of obtaining food had been to do so from the prison shop , where the prices had been higher than normal market prices . The applicant further alleged that the food normally served had not included meat .

The applicant complained that money had often been stolen from letters sent to prisoners and that using the bank transfer system had been rather complicated and had taken a considerable time .

He alleged that DATE he had been subjected to great anxiety and stress because of abuses on the part of ( masked ) special forces , who had stormed the cells , beaten the prisoners and stolen items belonging to them .

The applicant complained that in ORG , he had shared a cell with a surface area of QUANTITY . m with CARDINAL other prisoners .

The Government provided official information , submitted by ORG ( “ ORG ” ) , concerning the size of and facilities in the cells that the applicant had occupied during his detention , as well as the general detention conditions in the CARDINAL establishments .

In PERSON , the applicant had been placed in cell no . CARDINAL , which had had a surface area of CARDINAL sq . m. The average number of prisoners occupying the cell during DATE had been CARDINAL , and during DATE , CARDINAL . The cell had been equipped with CARDINAL squat toilets connected to the water network and separated from the rest of the room by a wall . Fresh air had been able to come in through the windows in the cell and toilet . A laboratory analysis of water quality had not indicated that the water had presented the characteristics described by the applicant . The prisoners had been allowed to take CARDINAL hot shower per week in communal bathrooms available in each section of the prison , where there had been CARDINAL showers available . The applicant had been allowed to walk outside the cell for TIME each day . The official documents did not give the exact number of bunks per cell .

In Rahova Prison , the applicant had been placed in cells with an average size of QUANTITY . m and which had had CARDINAL bunk beds for a maximum of QUANTITY detainees . The cells had also included a table , benches , a TV stand , a wardrobe , shelves and a food storage space . A bathroom measuring QUANTITY m with cold water had been attached to the cell , separated from the rest of the room by a wall and consisting of a shower , CARDINAL sinks and a toilet . Hot water had been available twice per week , between TIME and TIME and from TIME Each cell had had a double window , while the bathroom and the food storage room had each had one window .

The detainees had been allowed to walk outside for TIME per day and , upon their request , they had been given access to sports fields twice a week .

The prison had ensured detainees’ right to purchase different items from a shop operated by a company and located inside the prison . The prices had been regularly checked to ensure that they stayed within the average prices charged by other companies nearby the prison .

Although the applicant had had the right to take part in sports or recreational activities , he had not joined in those activities .

As regards the applicant ’s detention in ORG , the applicant had been placed in cell no . CARDINAL , which had had a total surface area of CARDINAL sq.m . The cell had included CARDINAL bunk beds and the number of detainees had never exceeded the number of available beds . The average number of inmates in the cell had been CARDINAL during DATE and DATE and CARDINAL during DATE . The cell had also been equipped with a few tables , a TV set belonging to the prison and storage spaces for dishes and food .

A bathroom measuring QUANTITY m had been attached to the cell , including CARDINAL toilets separated by a wall , a sink and a shower . LOC running water had been available and it had been of drinking quality .

A schedule approved by the penitentiary authorities had ensured the availability of a shower twice DATE .

The applicant had been able to take part in outdoor sport activities for TIME twice a week until DATE and for TIME once a week starting from DATE . The applicant had also been able to walk outside the cell in CARDINAL of the CARDINAL prison courtyards according to a schedule approved by the penitentiary authorities .

In respect of the CARDINAL prisons , the Government indicated that the cells had had natural light and electricity . The inmates had been responsible for cleaning their cells , using products put at their disposal by the prison administration . Pest control measures and insecticide treatments had been carried out regularly .

The quality of drinking water had been regularly assessed . Food had been prepared on a DATE basis . The quality of the raw materials used for the preparation of meals had been certified by reports attached to the food provided by different suppliers .

ORG The applicant alleged that he did not receive adequate medical treatment for his various medical conditions and he did not receive any treatment for anaemia . He alleged that in DATE , he made numerous requests to receive a dental prosthesis , which had been ignored . In DATE , he received a prosthesis , which according to him was damaged .

From the information submitted to the case - file by the ORG , based on documents furnished by ORG , it appears that the applicant received and currently still receives treatment for his various medical conditions . None of the medical records indicates that the applicant suffers from anaemia . In respect of the dental treatment , the medical records indicate that a dental prosthesis has been prepared for him and that DATE when he received it ( DATE ) and his transfer to PERSON prison on DATE , he did not report to the medical staff any complaint regarding its quality .

The relevant provisions of Law no . CARDINAL on the execution of sentences are described in DATE and CARDINAL of the PERSON v. GPE , ( no . MONEY , CARDINAL DATE ) .

The Government ’s Emergency Ordinance no . CARDINAL of DATE ( “ Ordinance no . CARDINAL ” ) regarding the rights of prisoners states , in LAW , that prisoners have the right to bring legal proceedings before a court of first instance concerning the implementing measures taken by the prison authorities in connection with their rights . Ordinance no . CARDINAL/CARDINAL has been repealed and replaced by PERSON no . CARDINAL of DATE , which has restated the content of LAW mentioned above in LAW , which provides that a judge shall have jurisdiction over complaints by convicted prisoners against measures taken by prison authorities ( see also LOC v. GPE , no . CARDINAL , § § DATE , DATE ) .

The Government submitted to the ORG copies of judicial decisions delivered by the domestic courts concerning the application of Ordinance no . CARDINAL and PERSON no . CARDINAL/CARDINAL . The decisions mainly concern complaints lodged by prisoners in respect of disciplinary sanctions imposed on them by prison authorities , alleged lack of adequate medical treatment , breaches of their rights to receive visits , to correspondence , to confidentiality of telephone conversations , to have walks outside their cell , to medical assistance during transport to a courthouse , and the right to be placed in a non - smoking cell . In CARDINAL decision of DATE , a domestic court noted that the cells in the relevant prison had been designed to accommodate a large number of inmates and only the prison infirmary had been able to accommodate a lower number of inmates . Therefore , as the applicant in that case had not had any medical need to be placed in the infirmary , he was required to remain in a large cell . In another decision of DATE , a domestic court dismissed a prisoner ’s complaint concerning overcrowded cells and the fact of having to share a bed with another person . The court ’s reasoning was that the claimant ’s state of health had actually improved since he had been placed in detention , he had received adequate medical treatment and therefore that none of his rights had been violated .

The relevant findings and recommendations of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ the ORG ” ) are described in GPE v. GPE ( no . CARDINAL , § § DATE , DATE ) and PERSON GPE ( no . CARDINAL , § § DATE , DATE ) .

The ORG report published on DATE , following a visit to different police detention facilities and prisons in GPE ( including PERSON ) conducted from DATE , indicated overcrowding as a persistent problem . The same report concluded that in the light of the deplorable material conditions of detention in some of the cells of the establishments visited , the conditions of detention could be qualified as inhuman and degrading .

In the same report , the ORG declared itself gravely concerned by the fact that a lack of beds remained a constant problem , not only in the establishments visited but at national level , and that this had remained the case since its first visit to GPE in DATE . The ORG also welcomed the changes introduced in domestic legislation providing for personal space of CARDINAL sq . m for each prisoner . The ORG therefore recommended that the NORP authorities take the necessary measures to ensure compliance with this requirement , as well as to ensure that each detainee has his or her own bed .

There is no ORG report concerning ORG . However , a NORP NGO , ORG for ORG in GPE – ORG ) visited this establishment on CARDINAL DATE . The report prepared following this visit indicated that , based on the information submitted by the authorities , the average personal space for prisoners was QUANTITY . m. The overcrowding was obvious when visiting individual cells : CARDINAL of the cells visited , measuring QUANTITY m , had accommodated CARDINAL prisoners , even though CARDINAL beds had been available . As regards the prison ’s food , the report indicated that CARDINAL detainee had complained about its quality and that many prisoners had preferred to eat the food they received from home or that they bought from the shop .


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall

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

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

When the applicant retired , he obtained a retirement pension ( ålderspension ) . It appears that he was entitled only to the so - called supplementary pension , CARDINAL part of which depends on the retired person 's civil status .

In DATE , at DATE , the applicant married .

Consequently , in accordance with the Earnings - related Old Age Pension Act ( ORG om inkomstgrundad ålderspension , DATE hereafter “ the DATE LAW ) , on DATE ORG ( försäkrings - kassan ) in GPE decided to reduce the applicant 's pension . It appears that the applicant received MONEY ( SEK ) per month thereafter instead of the previous SEK CARDINAL,CARDINAL per month , thus a reduction of FAC CARDINAL per month ( MONEY ) .

The applicant complained against the decision . He stated that , after the marriage , his pension was lower than it had been when he was single , although now he had to support CARDINAL persons as his wife did not have any income . ORG dismissed the complaint upon review on DATE .

NORP The applicant brought the dispute before ORG ( länsrätten ) in GPE claiming that LAW was discriminatory and illogical and contrary to legal principles and human rights .

By a judgment of DATE ORG found against the applicant , inter alia , stating as follows :

“ [ The applicant ] has questioned the [ DATE ] Act per se , as it distinguishes between married and unmarried pensioners and he states that the LAW thereby violates , inter alia , human rights . ORG notes however that marriage is an institution regulated by law which carries with it certain other rights and obligations than those concerning unmarried individuals . Having regard thereto and to [ the applicant 's ] observations , ORG can not find that the [ DATE ] Act , as challenged , manifestly runs counter to any rule of fundamental law or other superior statute or find that the adoption of the LAW significantly disregarded established regulation . Thus , ORG must apply the said law . Since [ the applicant ] is married , ORG calculated his pension fairly as for a married pensioner . Therefore the appeal shall be rejected . ”

The applicant 's request for leave to appeal against the judgment was refused by ORG ( kammarrätten ) in GPE on DATE and by ORG ( Regeringsrätten ) on DATE .

Under LAW , persons born DATE are , subject to certain criteria being met , entitled to CARDINAL types of pension upon retirement , income pension ( “ inkomstpension ” ) , regulated by LAW , and supplementary pension ( “ tilläggspension ” ) , governed by LAW .

Income pension , to which the applicant was apparently not entitled , is based on how much a person has set aside for his or her pension while working and the life expectancy for persons born in DATE .

Supplementary pension , which is at issue in the present case , consists of CARDINAL parts , defined in LAW , section CARDINAL of the CARDINAL Act :

“ Unless otherwise indicated in sections DATE , the DATE supplementary pension amounts to the total of

PERCENT of the product of the price base amount [ prisbasbeloppet ] for DATE in question under LAW [ Lagen om allmän försäkring , CARDINAL:CARDINAL ] and the average pension points earned by the person entitled to the pension or , if pension points have been earned for DATE , the average of the CARDINAL highest points , and

PERCENT of the price base amount for DATE in question under LAW or , if the person is married , PERCENT of this base amount . ”


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE , GPE . The respondent Government were represented by their Agent , PERSON , and subsequently their ORG , Mr D. Maričić .

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

On DATE the applicant 's house in GPE , GPE , was blown up for the first time by unknown perpetrators . The applicant allegedly reconstructed the house at his own expense .

On DATE the house in issue was blown up for the second time . The perpetrators again remained unknown .

On DATE ORG ( LAW DATE ( Zakon o izmjeni PERSON o obveznim odnosima ) entered into force . It provided that proceedings which were instituted under LAW ( Zakon o obveznim odnosima ) would be stayed .

On DATE the applicant instituted civil proceedings before ORG ( PERSON ) seeking damages from the ORG for his damaged property ( under LAW ) .

At the hearing of CARDINAL DATE the respondent submitted that the applicant 's claim was unsubstantiated .

At the hearing of DATE the respondent challenged the applicant 's ownership of the house in issue . The court requested the applicant to provide evidence of his ownership .

On DATE the applicant submitted the requested evidence .

It would appear that the proceedings in issue are still pending .

The relevant part of LAW ( Zakon o obveznim odnosima , ORG nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL ) read as follows :

“ Liability for loss caused by death or bodily injury or by damage or destruction of another 's property , when it results from violent acts or terror or from public demonstrations or manifestations , lies with the ... authority whose officers were under a duty , according to the laws in force , to prevent such loss . ”

ORG Zakon o izmjeni PERSON o obveznim odnosima , ORG no . CARDINAL/CARDINAL , hereinafter “ the DATE LAW ) entered into force on DATE . The relevant part of that Act read as follows :

“ Section CARDINAL of LAW ... shall be repealed . ”

“ Proceedings for damages instituted under LAW shall be stayed .

The proceedings referred to in sub - section CARDINAL of this section shall resume after the enactment of special legislation governing responsibility for damage resulting from terrorist acts . ”

The relevant part of LAW ( Zakon o parničnom postupku , ORG nos . CARDINAL , GPE , CARDINAL and CARDINAL ) provides :

“ Proceedings shall be stayed :

( CARDINAL ) where another statute so prescribes . ”

The “ Damage from Terrorist Acts and Public Demonstrations Act DATE ” ( Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija , ORG no . CARDINAL , hereinafter “ the DATE LAW ) entered into force on DATE . It provides that proceedings which were stayed pursuant to LAW will resume and defines circumstances in which the ORG is liable for damage resulting from terrorist acts and public demonstrations .

The relevant part of CARDINAL of LAW DATE ( Ustavni zakon o Ustavnom sudu PERSON , its consolidated text was published in ORG no . CARDINAL/CARDINAL ) , as amended on DATE , reads as follows :

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

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

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


CASE OF ILTALEHTI AND KARHUVAARA v. FINLAND

Violation of Art. 10;No violation of Art. 6-1

David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

NORP The applicant company is based in GPE . The second applicant was born in DATE and lives in GPE . The applicant company publishes a nationwide newspaper called ORG and the second applicant is the editor - in - chief of that newspaper .

On DATE , the National Conciliator ( valtakunnansovittelija , riksförlikningsmannen ) at the time , and B. , his female friend , entered late at night A. 's home where his wife was present . The situation escalated , the police were called and the incident , which subsequently involved also A. 's grown - up children , led to ORG 's arrest . Following this incident , criminal charges were brought against both PERSON and NORP on DATE . On DATE ORG ( käräjäoikeus , tingsrätten ) sentenced PERSON to a DATE conditional prison sentence for resisting arrest and for criminal damage ( vahingonteko , skadegörelse ) , and PERSON to a fine for assault . On DATE ORG ( valtioneuvosto , statsrådet ) dismissed PERSON from his post as ORG . On DATE ORG ( hovioikeus , hovrätten ) upheld the judgment with respect to B. As regards PERSON , the case was discontinued as he had died on CARDINAL DATE . On DATE ORG ( korkein oikeus , högsta domstolen ) refused PERSON leave to appeal .

On DATE , one day after the ORG judgment , the ORG newspaper published an article about A. and PERSON with a title “ A. defends fiercely his post ” . The article focused mainly on ORG 's conviction but in the caption to B. 's picture , her name , conviction and the fact that she was A. 's female friend were mentioned . Prior to this article , the identity of PERSON had been revealed at least in a NORP magazine on DATE ( see PERSON and others v. GPE , no . CARDINAL , DATE ) .

In DATE and PERSON requested that criminal investigations be conducted against journalists who had written about the incident on DATE and the circumstances surrounding it . On an unspecified date they made such a request with respect to the second applicant , claiming that the article published in ORG had invaded PERSON 's privacy . Investigations started in respect of the second applicant on DATE .

On DATE the public prosecutor brought charges under chapter CARDINAL , section CARDINAL(a ) of LAW against the second applicant in ORG . PERSON concurred with the charges brought by the public prosecutor and pursued a compensation claim against both applicants , which was joined to the criminal charges . The applicant company was summoned on DATE .

On DATE the court , after having held an oral hearing on DATE , first decided to declare all parts of the case file secret for DATE except for the applicable legal provisions , the conclusions and the summary of the case . Additionally , the identity of PERSON was not to be revealed in the public parts of the case file . As to the merits of the case , the court sentenced the second applicant to pay DATE - fines , amounting to MONEY ( ORG ) , for invasion of PERSON 's private life . Moreover , the applicants were jointly ordered to pay B. EUR CARDINAL plus interest for non - pecuniary damage as well as her costs and expenses .

ORG found that the facts mentioned in the articles were of a kind to which the protection of private life typically applied . ORG had already found in DATE that the national television broadcast on DATE , in which ORG 's name had been mentioned twice in the context of an interview with A. , had invaded her private life . PERSON did not hold such a position in society that the exception in LAW , section CARDINAL(a ) , paragraph CARDINAL , of LAW was applicable . The fact that she was a friend of such a person and that she had been involved in the incident that subsequently led to A. 's dismissal from his post as ORG did not justify revealing her identity . Nor was PERSON 's conviction of a kind that would have justified revealing her identity . The applicants , therefore , had had no right to reveal PERSON 's name or to publish her picture . As to the intent , ORG found that invasion of private life was punishable only if intent could be shown . As the second applicant had not prevented the invasion of PERSON 's private life , this omission fulfilled the intent criteria .

NORP By letter dated DATE the applicants appealed to ORG , claiming , inter alia , that the provision of LAW in question did not define with sufficient clarity which acts fell within its scope , and that a disclosure of a convicted person 's name could not be considered as falling within the scope of private life . Moreover , the lack of evidence was used to the detriment of the second applicant .

On DATE ORG , without holding an oral hearing , partly upheld the ORG judgment . The court balanced the right to freedom of expression against the protection of private life in the light of the ORG 's case - law . It found that , according to the preparatory works and the national and the ORG 's case - law , the facts mentioned in the articles were of a kind to which the protection of private life typically applied . ORG had already found in DATE that PERSON was not a public figure , and the fact that she was a friend of such a person and that she had been involved in the incident that subsequently led to the dismissal of A. from his post as ORG did not justify revealing her identity . However , since the convictions of A. and B. were closely linked in this case , PERSON 's name and conviction could lawfully have been mentioned . Nevertheless , the publishing of a big picture of PERSON was not necessary and therefore invaded her privacy . As to the intent , the omissions of the second applicant could not be regarded as proving his intent to invade PERSON 's privacy and , consequently , the charges against him were dismissed . He was also exonerated from paying B. non - pecuniary damages as well as her costs and expenses . The non - pecuniary damages payable by the applicant company were lowered to LAW . In total the applicant company paid ORG ORG as compensation .

NORP By letter dated DATE the applicant company applied for leave to appeal to ORG , reiterating the grounds already presented before ORG . Moreover , it claimed that , in declaring that the case file was to remain secret , ORG had not given any reasons which would constitute sufficient grounds for the measure , that the length of the proceedings had exceeded a reasonable time , and that the restrictions on freedom of expression were neither necessary nor justified in this case .

On DATE ORG refused the applicant company leave to appeal .

The relevant domestic legislation and practice are outlined in the ORG 's judgment in PERSON and others v. GPE ( no . CARDINAL , § § DATE , DATE ) .

The relevant international materials are outlined in the ORG 's judgment in PERSON and others v. GPE ( cited above , § § CARDINAL - CARDINAL ) .