Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Zdravka Kalaydjieva

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

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

NORP In DATE , when the applicant was CARDINAL , he had sexual intercourse with a DATE girl ( “ the complainant ” ) at his home , using a condom .

DATE friends of the complainant became concerned when she admitted to them that she had had sexual intercourse with the applicant . They took her to a family planning clinic . The clinic called the police . In a video - recorded interview the complainant gave the following account of what had occurred . After a casual meeting she spoke to the applicant on a couple of occasions by mobile telephone and they arranged to meet again . Because it was raining they went to the applicant 's home . They went into his bedroom “ to talk ” . The door was closed , and possibly locked . The applicant quizzed her about her school . Suddenly he took down her trousers and flung them across the room . She understood what was about to happen and , alarmed , made clear her objections . Despite these , the applicant proceeded to have vaginal intercourse with her . They remained TIME in the room , then parted . They had no further contact .

On the basis of this evidence , the applicant was charged with rape of a child under CARDINAL , contrary to section CARDINAL of LAW DATE ( “ theCARDINAL Act ” : see below ) . He was advised that he had no defence to the charge .

On DATE he pleaded guilty on the following basis , as recorded in writing :

“ i ) The complainant willingly agreed to have sexual intercourse with the defendant .

ii ) At the time the defendant believed that the complainant was DATE . She told him so on an earlier occasion .

iii ) The defendant nonetheless pleads guilty to the ... offence having been advised that , by reason of the fact that the complainant was DATE at the relevant time , the offence is committed irrespective of :

a ) consent

b ) reasonable belief in consent

c ) a reasonable belief as to age . ”

NORP The prosecution were not , initially , prepared to accept this basis of plea and a “ GPE ” hearing was fixed for CARDINAL and DATE in order to determine the correct factual basis for the purpose of sentence . The complainant was , however , terrified of attending court and so , with the support of her mother , decided that she was content with the basis of plea . On DATE , however , the prosecution informed the applicant 's solicitors that they had decided to accept the basis of plea advanced because the complainant had accepted that she had told the applicant that she was CARDINAL and she was reluctant to attend court to give evidence . The prosecution declined to consider , as they were invited to do by those representing the applicant , whether it was in the public interest to proceed with the prosecution .

On DATE the applicant was sentenced to a DATE detention and training order . He was detained for DATE before being granted bail on being given permission to appeal against sentence .

The applicant appealed to ORG against conviction and sentence on the grounds inter alia that ( CARDINAL ) the conviction violated his right to a fair trial and the presumption of innocence under LAW , because the offence was one of strict liability , and ( CARDINAL ) it violated his right to respect for private life under LAW because it was disproportionate to charge him with rape under LAW when he could have been charged with a less serious offence under LAW , which deals with sex offences committed by persons DATE ( see below ) . On DATE ORG ( Lord PERSON , PERSON , PERSON ) dismissed the appeal against conviction but allowed the appeal against sentence , substituting a conditional discharge ( see G v R [ DATE ] EWCA Crim CARDINAL ) .

ORG held that the offence under section CARDINAL of the CARDINAL Act was committed by a person having vaginal , anal or oral sexual intercourse with a victim under CARDINAL , whether or not the victim consented and regardless of whether the defendant reasonably believed that the child was CARDINAL or over . It found that no issue arose under LAW , which did not prevent a ORG from creating offences of strict liability . ORG accepted that prosecution of a minor for an offence under section CARDINAL of the CARDINAL Act in respect of “ consensual ” sexual intercourse might in certain cases give rise to a violation of LAW . To prevent this , it would be possible for the trial judge to substitute a charge LAW ( see below ) once the full facts had emerged . Moreover , the judge 's sentencing powers in relation to the conviction of a child of an offence under LAW ranged from absolute discharge to detention for life . If it transpired that the facts of the offence were less serious than those that originally justified the charge , the judge should normally , by an appropriate sentence , be able to ensure that there was no unjustified interference with the defendant 's LAW . On the facts of the applicant 's case , the judge did not infringe LAW by proceeding to sentence the applicant under LAW .

On DATE , ORG granted leave to appeal . On DATE , their Lordships ( Lords Hoffmann , Hope of ORG and ORG and ORG ) dismissed the appeal ( see G v R [ DATE ] ORG CARDINAL ) .

NORP ORG unanimously held that LAW and CARDINAL guaranteed fair procedure and the presumption of innocence but did not place any obligation on GPE as regards the substantive contents of domestic law , including the mental or other elements of offences under domestic criminal law .

They also rejected the applicant 's complaint under LAW by a majority of CARDINAL to CARDINAL ( Lords PERSON and PERSON and ORG in the majority , ORG and ORG dissenting ) . The majority held that , even if the applicant 's LAW were engaged , his prosecution , conviction and sentence were proportionate in the pursuit of the legitimate aims of the protection of health and morals and of the rights and freedoms of others .

Baroness PERSON observed as follows :

“ CARDINAL . LAW has CARDINAL main features . First , it singles out penetration by the male penis as one of the most serious sorts of sexual behaviour towards a child DATE ; secondly , it applies to such penetration of a child under CARDINAL of either sex ; and thirdly it calls this ' rape ' . ... This is because the law regards the attitude of the victim of this behaviour as irrelevant to the commission of the offence ( although it may , of course , be relevant to the appropriate sentence ) . Even if a child is fully capable of understanding and freely agreeing to such sexual activity , which may often be doubted , especially with a child under CARDINAL , the law says that it makes no difference . He or she is legally disabled from consenting .

... It is important to stress that the object is not only to protect such children from predatory adult paedophiles but also to protect them from premature sexual activity of all kinds . They are protected in CARDINAL ways : first , by the fact that it is irrelevant whether or not they want or appear to want it ; and secondly , by the fact that in the case of children DATE it is irrelevant whether or not the possessor of the penis in question knows the age of the child he is penetrating .

... There was a great deal of anxiety in ORG about criminalising precocious sexual activity between children . The offences covered by LAW in combination with section CARDINAL cover any sort of sexual touching however mild and however truly consensual . As sexual touching is usually a mutual activity , both the children involved might in theory be prosecuted . Indeed , section CARDINAL expressly contemplates that the person penetrated may be the offender . Obviously , therefore , there will be wide variations in the blameworthiness of the behaviour caught by sections CARDINAL and CARDINAL . Both prosecutors and sentencers will have to make careful judgments about who should be prosecuted and what punishment , if any , is appropriate . In many cases , there will be no reason to take any official action at all . In others , protective action by the children 's services , whether in respect of the perpetrator or the victim or both , may be more appropriate . But the message of sections CARDINAL and CARDINAL is that any sort of sexual activity with a child under DATE is an offence , unless in the case of a child who has reached CARDINAL the perpetrator reasonably believed that the child was aged CARDINAL or over . There are many good policy reasons for the law to convey that message , not only to adults but also to the children themselves .

DATE .

CARDINAL ... The concept of private life ' covers the physical and moral integrity of the person , including his or her sexual life ' ( X and Y v The GPE , para . CARDINAL ) . This does not mean that every sexual relationship , however brief or unsymmetrical , is worthy of respect , nor is every sexual act which a person wishes to perform . It does mean that the physical and moral integrity of the complainant , vulnerable by reason of her age if nothing else , was worthy of respect . The state would have been open to criticism if it did not provide her with adequate protection . This it attempts to do by a clear rule that children DATE are incapable of giving any sort of consent to sexual activity and treating penile penetration as a most serious form of such activity . This does not in my view amount to a lack of respect for the private life of the penetrating male . ”

In his dissenting judgment , Lord Hope ( with whom Lord PERSON agreed ) observed as follows :

Article CARDINAL(CARDINAL ) guarantees to everyone the right to respect for his private life , and a teenager has as much to respect for his private life as any other individual . It is unlawful for a prosecutor to act in a way which is inconsistent with a Convention right . So I can not accept Lord PERSON 's proposition that the Convention rights have nothing to do with prosecutorial policy . How an offence is described and the range of sentences that apply to it are matters for the contracting state . But where choices are left to the prosecutor they must be exercised compatibly with the Convention rights . ...

... The offences which LAW has created are expressed in very broad terms . They recognise that the circumstances in which mutual sexual activity may take place between children of the same or the opposite sex , and the acts that they may perform on one another as fashions change , will inevitably vary greatly for case to case . But there is great force in the point that PERSON made in R v PERSON ; R v LOC [ DATE ] CARDINAL SCR CARDINAL about the need for children to be protected . Their need to be protected against themselves is as obvious as is their need to be protected from each other . There is much to be said for the view that where acts are perpetrated on children DATE by children of a similar age intervention of some kind is necessary for the protection of their physical and moral health . My noble and learned friend PERSON of GPE offers a unique insight into these issues , and I agree with all she says about the dangers of under age sexual activity . The fact that there was consent is to this extent simply irrelevant . ...

The Children 's Hearing system provided for in LAW ( Scotland ) Act DATE is not available in GPE and GPE . So sexual activity between children of the kind described in this case can not be dealt with outside the criminal law . I am not suggesting that it should be decriminalised here . That would be to condone it which , as PERSON observations about the risks to vulnerable young people so clearly indicate , would not be acceptable . But this still begs the question whether sexual crimes committed by children should be dealt with in the same way as sexual crimes committed by adults . There are grounds for thinking that the sanctions that can be imposed under LAW for mutual sexual activity by a person under CARDINAL with a child under CARDINAL provide all that is needed by way of punishment that is proportionate to the offence . The message that this is an offence can be conveyed to children as well as adults very effectively by the use of these sanctions , as anyone who has exercised the responsibility of sentencing children in cases of that kind knows .

Section CARDINAL , the rape of a child under CARDINAL , on the other hand is designed for a different and much more serious situation . The offence is one which only a male person can commit . It may be committed by a male person of any age , and he is liable on conviction to life imprisonment . The description of the offence as rape , and all the consequences that go with that description , are entirely appropriate where the act has been committed upon a child under CARDINAL by a person over DATE . It may also be appropriate where the person who committed it was under that age . But the lower the age , the less appropriate it will be . The question in such a case , given the choice that is available , must be whether in all the circumstances to proceed under LAW would be proportionate . ORG said that the judge should have taken the view , having regard to the basis of the plea , that the offence in this case fell properly within the ambit of LAW rather than section CARDINAL : para CARDINAL . I agree , but I would go further . I think that it must follow that , as the offence fell properly within the ambit of section CARDINAL , the appellant 's conviction of rape under section CARDINAL was disproportionate . ”

Section CARDINAL of the DATE Act provides :

“ Rape of a child under CARDINAL

( CARDINAL ) A person commits an offence if-

( a ) he intentionally penetrates the vagina , anus or mouth of another person with his penis , and

( b ) the other person is DATE .

( CARDINAL ) A person guilty of an offence under this section is liable , on conviction on indictment , to imprisonment for life . ”

Section CARDINAL provides :

“ Child sex offences committed by children or young persons

( CARDINAL ) A person DATE commits an offence if he does anything which would be an offence under any of sections CARDINAL [ sexual activity with a child ] if he were aged DATE .

( CARDINAL ) A person guilty of an offence under this section is liable –

( a ) on summary conviction , to imprisonment for a term not exceeding DATE or a fine not exceeding the statutory maximum or both ;

( b ) on conviction on indictment , to imprisonment for a term not DATE . ”

The judge 's sentencing powers in relation to the conviction of a child under LAW range from absolute discharge to detention for life . Conviction under LAW is subject to a maximum sentence of DATE detention .

In R v PERSON and other appeals [ DATE ] PERSON ORG gave guidance as to sentencing in respect of the offence created by section CARDINAL , as follows :

“ CARDINAL . Against that background , we turn to the offence of rape of a child under CARDINAL , contrary to section CARDINAL of the LAW . We say , at once , that no precise guidance can be given . The appropriate sentence is likely to lie within a very wide bracket , depending on all the circumstances of the particular offence . There will be very few cases in which immediate custody is not called for , even in relation to a young offender because the purpose of the legislation is to protect children DATE from themselves , as well as from others minded to prey upon them . ...

Although absence of consent is not an ingredient of the offence , presence of consent is , in our judgment , material in relation to sentence , particularly in relation to young defendants . The age of the defendant , of itself and when compared with the age of the victim , is also an important factor . A very short period of custody is likely to suffice for a teenager where the other party consents . In exceptional cases ... a noncustodial sentence may be appropriate for a young defendant . If the offender is much older than the victim a substantial term of imprisonment will usually be called for . ”

In relation to LAW , legal guidance contained in the LAW for ORG Prosecutors provides that , insofar as child defendants ( under DATE ) are concerned :

“ [ P]rosecutors may exercise more discretion where the defendant is a child . The overriding public concern is to protect children . It was not ORG 's intention to punish children unnecessarily or for the criminal law to intervene where it is wholly inappropriate . During the passage of the bill , PERSON said :

' Our overriding concern is to protect children , not to punish them unnecessarily . Where sexual relationships between minors are not abusive , prosecuting either or both children is highly unlikely to be in the public interest . Nor would it be in the best interests of the child .... '

The Code sets out a number of factors that prosecutors should take into account in deciding whether or not to prosecute , including inter alia the age and understanding of the offender , whether the complainant entered into sexual activity willingly , the relationship between the parties , whether there was any element of exploitation , coercion or threat , deception , grooming or manipulation in the relationship and the nature of the activity . In addition , the best interests and welfare of the complainant and defendant must be taken into account .


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

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

First set of proceedings ( no . CARDINAL/CARDINAL )

By a summons of DATE , served on DATE , the applicant was requested to appear before the PERSON magistrate ’s court ( pretura ) on DATE on charges of breaching CARDINAL different town planning laws .

As it appears that the hearing was not held , the applicant was summoned again on DATE to appear for trial on CARDINAL DATE . Owing to a ORG strike , the trial was adjourned to DATE . On DATE evidence was heard from one of the prosecution witnesses , but the prosecution decided not to examine their second witness . Both parties asked the court to adjourn the trial to DATE . On that date the magistrate ’s court noted that the applicant had applied to ORG for his position to be regularised and had obtained planning permission for the relevant building works . The court accordingly concluded that there was no cause to continue with the criminal proceedings because there was no longer any offence .

The judgment became final on DATE .

Second set of proceedings ( no . DATE )

In the meantime , on DATE , the NORP public prosecutor ’s office had summoned the applicant to appear before the PERSON magistrate ’s court on DATE on charges of breaching CARDINAL different town planning laws . The applicant received the summons on DATE . It informed him that he was being prosecuted in his capacity as site manager . The works in question involved CARDINAL building sites that had been the subject of the first set of proceedings and CARDINAL others . The investigation had been partly conducted by the deputy public prosecutor who had been in charge of the first proceedings .

The hearing listed for DATE did not apparently take place . The PERSON magistrate ’s court adjourned it to DATE as CARDINAL of the defendants was ill . On DATE the same court adjourned the trial to DATE because the witnesses had not appeared . On that date the applicant informed the court that he had already been tried for the same offence . On DATE the PERSON magistrate ’s court concluded from the pleadings filed by the prosecution and the defence that the proceedings against the applicant could not be continued because a court decision ( which had become final on DATE ) had already been delivered in the case . The judgment of DATE became final on DATE .

LAW provides :

“ Anyone who has been acquitted or convicted by a final judgment or order of a criminal court can not be tried again for the same offence , even if it is tried on a different basis in terms of classification , degree of seriousness or circumstances ... .

If fresh proceedings are nevertheless instituted , the court shall , at any stage of the proceedings , acquit or discharge the defendant and state the reasons for doing so in the operative part of the judgment . ”

LAW provides :

“ The parties and counsel may at any stage of the proceedings submit written pleadings or requests to the court , which they shall file with the court registry .

The court shall rule on these duly submitted requests without delay and in any event , subject to any specific statutory provision to the contrary , within DATE . ”


The applicant is a NORP national , born in DATE , and resides in GPE . He is represented by PERSON , a lawyer practising in GPE .

A. Particular circumstances of the present case

By judgment of DATE , ORG ( Arrondissementsrechtbank ) of GPE convicted the applicant of offences under LAW ( PERSON ) and membership of a criminal organisation and sentenced him to CARDINAL years’ imprisonment and payment of a fine of ORG . CARDINAL . The applicant filed an appeal with ORG ( Gerechtshof ) of GPE .

In its judgment of DATE , following adversarial proceedings in the course of which hearings were held on CARDINAL and DATE , ORG quashed the judgment of DATE , convicted the applicant of participation in offences under LAW and membership of a criminal organisation and sentenced the applicant to DATE imprisonment and payment of a fine of ORG . CARDINAL .

The evidence before ORG consisted of , inter alia , the verbatim records of the hearing on DATE of Mr Brand , head of the regional police force GPE , before the parliamentary commission of inquiry for investigation methods , statements made by the applicant in the course of the investigation and the trial proceedings , formal records ( proces - verbaal ) on the investigation , statements made by witnesses before the police and verbatim records of tapped telephone conversations .

ORG rejected the arguments raised by the defence that the prosecution should be declared inadmissible on grounds that the fair trial principle within the meaning of Article CARDINAL of the Convention had been violated in that the prosecution had insufficiently disclosed information about the criminal investigation at issue and that evidence had been obtained by use of an unlawful method of investigation , i.e. allowing imported drugs to reach their destination . ORG held on these points :

< Translation >

“ Admissibility of the prosecution ...

It has not appeared that ORG has refused to provide information or that acts have been performed or findings have been made in the context of the investigation of the facts at issue which have not been related in formal records . It appears clearly from the case - file that the investigation started with the interrogation of PERSON on DATE and DATE in GPE in GPE .

O.G. made a statement about the involvement of “ M. ” in the importation of cocaine , as well as of ORG , owner of the sport school B. Gym in GPE . On the basis of this information , a preliminary judicial investigation ( gerechtelijk vooronderzoek ) was opened on DATE against PERSON and on DATE against PERSON , ORG owner of ORG in GPE . It appeared from these investigations that PERSON had close contacts with PERSON and that the latter had almost daily contacts with PERSON On the basis of this information , preliminary judicial investigations were opened on CARDINAL DATE against NORP and PERSON It appeared from these investigations that PERSON had regular contacts with inter alia a certain PERSON , whose name turned out to be J.W.A. PERSON . On the basis of this information , a preliminary judicial investigation was opened on DATE against PERSON .

Chief Inspector PERSON , head of the PERSON - team , stated under oath in the first instance trial proceedings that in the course of the investigation no use was made of information from ORG ( Criminele Inlichtingen ORG : hereinafter “ ORG ” ) .

Contrary to what the defence contend , it does not appear from the questioning by the parliamentary commission of inquiry of ORG that according to the latter other than normal methods of investigation were used in this case . Quite the opposite , since when Brand apparently speaks about the case at issue , he refers to it - insofar as the alleged importation of cocaine is concerned - as a case in which “ the traditional methods have been applied ” and - insofar as the alleged importation of marihuana is concerned - as “ a case in which we have applied classical methods of criminal investigation ” .

The argument of the defence relating to a decision of non - prosecution ( sepot ) having been issued in the case against ORG has , following information obtained in the course of the trial proceedings , proved to be incorrect and not to be borne out by the facts . The Procurator General has been informed by the ORG public prosecutor dealing with that case that it is absolutely untrue that PERSON was an informer .

The defence have insufficiently substantiated their contention that another informer besides ORG may have been used .

Neither the formal records nor any other source give reason to presume that there may be a demonstrable direct link between any other ( criminal ) investigation than the CARDINAL described in the formal records and the present case . This is not altered by the fact that the police was said to have procured a position for themselves from where it was possible to obtain information in the period from DATE until DATE . ( “ PERSON anderszins blijkt van een ernstig vermoeden dat er een direct verband aanwijsbaar is QUANTITY onderzoek dan in het proces - verbaal is gerelateerd en deze zaak . De stelling dat de politie zich in de periode DATE tot begin DATE een informatiepositie zou hebben verworven doet daaraan niet af . ” )

In view of the above , no indications can be found either in the case - file or in the facts and circumstances argued by the defence that the formal records in casu were incomplete and that LAW was contravened or that any methods of criminal investigation other than the usual methods were deployed .

The fair trial principle ( LAW ) has in the ORG ’s opinion , therefore , not been violated .

Lawfulness of the evidence obtained

Counsel has argued that there is a serious suspicion that use has been made of an unlawful method of investigation , namely the delivery of drugs ... ORG rejects this argument and refers to its considerations as regards the admissibility of the prosecution ... “

The applicant ’s subsequent appeal in cassation was rejected by ORG ( PERSON ) on DATE under LAW ( Wet op de Rechterlijke Organisatie ) as not prompting a determination of legal issues in the interest of legal unity and legal development . ORG further found no grounds for quashing ex officio the judgment of DATE .

B. Relevant domestic law

LAW ) provides as follows :

< Translation >

“ The civil servants , referred to in Articles CARDINAL and CARDINAL , shall record as soon as possible in formal records the investigated punishable fact or what they have done or found in the investigation . ”


No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Jean-Paul Costa;Nona Tsotsoria

The applicant was born in DATE and lives in GPE , where she formerly worked as a judge .

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

On DATE the applicant was approached by GPE , an acquaintance , with whom , she alleged , she had merely discussed the sale of her car . Unbeknownst to her , their conversation during that meeting was secretly recorded by GPE .

On DATE a special anti - corruption police unit of ORG ( PERSON tyrimų tarnyba , hereafter referred to as the ORG ) received a complaint by GPE that the applicant had demanded a payoff , in the form of a new car , in return for admitting and deciding GPE ’s civil claim to declare null and void the auction of his property .

On DATE the ORG applied to the Deputy Prosecutor General , requesting a “ ORG ” ( “ the model ” ) to be authorised for a period of DATE . The ORG stated in the application :

“ [ T]he ORG received an application by [ SŠ ] concerning [ the applicant ’s ] demand for a bribe in return for admitting his civil action and ruling in [ his ] favour .

[ The applicant ] ... guaranteed that the auction would be lifted by a court decision taken by her . In return , [ the applicant ] asked for a good car , to be bought by [ SŠ ] with his money .

With a view to recording and discontinuing [ the applicant ’s ] unlawful act , [ SŠ ] has agreed to collaborate with ORG officers , and simulate the following crimes : the buy - off and breach of currency and securities regulations ... under LAW and CARDINAL of the [ Criminal Code ] .

[ The model ] will be executed by ORG officers by way of a separate operational action plan .

Basis - application by [ SŠ ] . ”

On DATE the model was authorised by the Deputy Prosecutor General . The text of the model reiterated the wording of the ORG application of DATE .

On DATE the ORG wrote a letter to ORG , informing him , as follows , about the facts established on the basis of the conversations secretly recorded by GPE with technical equipment provided by the ORG :

a ) By DATE SŠ had met the applicant CARDINAL times : on DATE in her office ; on DATE at TIME again in her office ; on DATE at TIME in GPE ’s car . In the course of their exchanges , the applicant had demanded a bribe of MONEY ( “ USD ” ) in return for a favourable resolution of GPE ’s civil dispute . Following the authorisation of the model on DATE , GPE had been given money by the anti - corruption police . In TIME that day he had handed over USD CARDINAL,CARDINAL to the applicant and , in the afternoon , he had given her a further USD CARDINAL,CARDINAL , to be used by the applicant for a new car . At a meeting in TIME of CARDINAL DATE , the applicant had drafted GPE ’s civil claim and had instructed him on the future course of the proceedings . On DATE the applicant had further instructed GPE on his case , whilst assuring him of its favourable outcome .

b ) On DATE the applicant had asked GPE to obtain new DATE tyres for her car . On CARDINAL and DATE the applicant had informed GPE that further payments might be required to buy off certain judges of the higher court . On DATE the applicant had taken from GPE a further bribe of USD CARDINAL for the DATE tyres . On DATE she had obtained from him CARDINAL for bribing higher judges . The applicant had thus taken a total of CARDINAL in personal bribes , as well as USD CARDINAL,CARDINAL to buy - off certain higher court judges .

The ORG also submitted that the case materials disproved any element of undue instigation as the applicant had :

- recommended a particular lawyer to GPE for his civil case ;

- drafted his claim , assuring him of its favourable outcome ;

- registered PERSON ’s case in court and had personally undertaken to examine it ;

- bought a new car after having received the bribe ; and

- met GPE on a number of occasions on her own initiative , whilst assuring him of the favourable outcome of his claim .

On DATE the applicant was apprehended in her office whilst receiving a further CARDINAL from GPE . On DATE the ORG wrote a letter to ORG , requesting the applicant ’s prosecution , whereupon ORG decided to institute criminal proceedings against the applicant for accepting a bribe ( Article CARDINAL of LAW as then in force ) .

On DATE the Prosecutor General applied to the Seimas ( ORG ) , requesting that the applicant ’s judicial immunity be lifted and that she be suspended from her functions pending the outcome of the criminal case . It was noted in this connection that the applicant had demanded and obtained a bribe from GPE . On DATE ORG lifted the applicant ’s immunity . By a decree of DATE , the President dismissed the applicant from her position as a judge .

SŠ died on DATE .

On DATE the applicant was indicted for accepting a bribe in large amounts ( Article CARDINAL paragraph CARDINAL of LAW as then in force ) , cheating ( LAW ) and official malpractice ( LAW ) . On DATE the prosecution rejected the applicant ’s request to discontinue the case . On CARDINAL DATE the case was transmitted to ORG , a judge of which , on DATE , committed the applicant for trial on the above counts .

On DATE the applicant requested ORG to apply to ORG to examine the compatibility of LAW with LAW . In particular , she claimed that the LAW had not duly protected persons from possible incitement by the investigating authorities to commit offences . In addition , it was alleged that the power conferred upon the prosecution under LAW to authorise the model - which effectively allowed private persons like GPE to imitate criminal acts but avoid criminal liability - had gone beyond the constitutional competence of the prosecutors . Consequently , the authorisation of such models should only have been issued by courts . She further claimed that a judicial authorisation should have been required for certain intrusive measures under LAW such as the secret recording of conversations .

On DATE ORG accepted the request and applied to ORG with a view to establishing the compatibility of LAW with LAW . On DATE ORG found this legislation to be generally compatible with LAW ( see PERSON , [ ORG ] , no . CARDINAL , § CARDINAL ) .

In the course of the trial , ORG reclassified the charge of cheating as an attempt to buy off ORG officials .

On DATE ORG convicted the applicant of accepting a bribe in large amounts ( Articles CARDINAL paragraph CARDINAL of LAW as then in force ) , attempting to buy off ORG officials ( ORG CARDINAL and CARDINAL ) and official malpractice ( LAW . She was acquitted of cheating ( LAW ) . The applicant was sentenced to CARDINAL years’ imprisonment , banned from ORG service for DATE , and had her property confiscated . The court based the conviction mostly on the recordings made by GPE when implementing the model , finding that she had promptly accepted a bribe from him of USD CARDINAL,CARDINAL on DATE and then a further ORG CARDINAL on DATE . On DATE she had obtained from GPE another USD CARDINAL,CARDINAL with which to bribe certain higher court judges in order to ensure the favourable outcome of his case on appeal . It was established that , in return for the bribe , the applicant had drafted ORG civil claim ( as of TIME of CARDINAL DATE ) , had made the necessary arrangements to be appointed as the judge in his case , and had started examining it . The court did not find that the ORG CARDINAL,CARDINAL obtained by the applicant from GPE on DATE had been used for any criminal purpose . She was therefore acquitted of any offence in respect of this money .

As regards the applicant ’s allegations of incitement , the court held as follows :

“ The acts of [ SŠ ] as a whole are not considered to be a provocation because he acted under [ the model ] authorised in accordance with the law[. ] From his application [ of DATE ] it appears that he applied to the law enforcement authorities alleging , in his opinion , unlawful actions on the part of [ the applicant ] . ... The case contains no objective evidence of close or intimate relations between [ GPE and the applicant ] , or that she had been intimidated [ by GPE ] ...

[ T]he model was authorised on DATE , while [ SŠ ] applied to the officers on DATE [ ; ] and on DATE he taped his meeting with [ the applicant ] by a voice recorder given by the officers ... This recording constitutes proper evidence , in that it was made in order to collect and verify the preliminary information about the crime ... On DATE , [ only after ] the ORG officers had properly verified the preliminary information about [ the applicant ’s ] criminal intentions and [ following ] the authorisation of the model in accordance with the law , [ SŠ ] “ joined ” the continuing , but not completed , offences of the applicant ... . The chamber considers that [ SŠ ] did not overstep the limits established by [ the ] model . ”

The court excluded from the incriminating evidence against the applicant the transcript of a secretly taped telephone conversation between her and SŠ at TIME on DATE , as it had been obtained without the appropriate judicial authorisation . However , the court found no domestic unlawfulness in the admission as evidence of the remainder of GPE ’s recorded conversations with the applicant .

Upon the applicant ’s appeal , on DATE ORG amended the lower judgment , quashing the applicant ’s conviction for official malpractice , but upholding her conviction for accepting a bribe and the attempted buy - off . The sentence of imprisonment remained unchanged . ORG confirmed the exclusion from the evidence of the recording of the early morning telephone conversation of DATE . However , the court ruled that the secret recording by SŠ of his other conversations with the applicant , and the rest of the evidence subsequently collected in implementing the model , had been lawful , there being no signs of incitement to commit the offences .

The applicant submitted a cassation appeal in which she alleged the unlawfulness of the recordings of her conversations with SŠ obtained DATE and DATE , and the improper use of those recordings as evidence to support her conviction . The applicant also complained that GPE and the authorities had entrapped her into committing offences upon which she had not been ready to embark . In this respect , the applicant complained that the authorities had had no good reason to suspect her of contemplating taking a bribe , as her meeting with GPE on DATE had only attested to their discussion about her intention to sell her car . She stated that , in his application to the ORG of DATE , GPE had seriously distorted the facts . The applicant alleged that , in executing the model , the authorities had exceeded its scope by paying a much more significant amount of money than had been required to obtain her conviction for bribery . She claimed that all the investigative actions by GPE and the authorities should have been discontinued upon her receiving the first instalment of USD CARDINAL,CARDINAL in the morning of CARDINAL DATE . The subsequent payments had served only to inflate the impugned criminal act ( accepting a bribe ) out of all proportion , and to obtain the commission by her of a further crime ( the attempted buy - off of higher court judges ) which had not been foreseen when authorising the model .

On DATE ORG amended the appeal judgment , but upheld the conviction for accepting a bribe and the attempted buy - off of higher court judges . The applicant ’s sentence remained unchanged . In reply to the applicant ’s allegations of incitement , ORG stated inter alia :

“ The recording of the conversation of DATE ... attests that [ SŠ ] asks [ the applicant ] to accept his suit and declare the auction null and void ... The applicant , albeit not eagerly , agrees to take the case , asking [ SŠ ] to sell her car . [ SŠ ] presented this recording to [ the ORG ] together with his application , stating that [ the applicant ] demands a bribe ... This was the initial information about the preparation of the offence ( LAW , hereinafter the ORG ) . Since that [ information ] was insufficient to undertake operational steps , the ORG officers decided to verify it ( LAW ( CARDINAL ) of the ORG ) . For this purpose , on DATE [ SŠ ] was given a recorder to tape secretly his [ next ] conversation with [ the applicant ] . It was established during the verification that the applicant has for some time intended to get a newer car ... She ... asked [ SŠ ] to sell the car in her possession , and buy a newer car with the money received . [ SŠ ] explained to the applicant [ the ] difference between the value of her present car and the desired car ... [ whilst ] offering to cover the price difference with his own money , in return for [ the applicant ] admitting his civil action ... and deciding it in his favour ... The applicant agreed with this proposal , i.e. the preliminary information on [ the applicant ’s ] readiness to accept a bribe was confirmed . The cassation arguments that [ the applicant ] was provoked into commit the crime are unsubstantiated . The above circumstances confirm that [ the applicant ] had wanted to take a bribe , in that she immediately accepted the offer without any outside pressure . The recordings also confirm that on DATE [ GPE and the applicant ] agreed upon the specific object of the bribe , a car ... costing MONEY . The specific agreement about the bribe corresponds to the preparatory stage of a crime provided for in Article CARDINAL of LAW . The criminal conduct simulation model was only approved DATE , on DATE . Therefore [ the authorities ] “ joined ” the crime already being committed , in conformity with the decision of ORG DATE . ... [ While the interests of GPE ] in applying to file the action ... to a familiar judge was unlawful , ... this fact does not invalidate the criminal conduct simulation model , which served to protect the more important general interest of preventing someone who has accepted a bribe to work as a judge ... . An offer to accept a bribe can not be considered to be active pressure to commit an offence , which is not allowed by LAW ) of the ORG , and which would contradict ORG decision of CARDINAL DATE ... The criminal conduct simulation model [ as authorised in this case ] confirms that its limits were defined not by a number of actions , but by specifying the Articles of the Criminal Code establishing criminal responsibility for the simulated offences ... On DATE the ORG officers could not discontinue the execution of the model because it was necessary to establish if the applicant would keep her word - if she were to admit [ ORG ] action [ on her case docket ] and decide it in favour of the plaintiff . The qualification of [ the applicant ’s ] actions depended on her future conduct : had [ she ] refused to examine the case , her act would have been classified not under LAW , but under LAW paragraph CARDINAL of LAW ( obtaining property in large amounts by deception ) . Nor were the confines of the model exceeded in terms of time , in that [ it ] had been authorised for DATE ... The evidence collected in the course of executing the model ... confirm that [ the applicant ] was indeed trying to keep the promise given to [ SŠ ] : she accepted ( without the knowledge of the court president ) and rectified [ his ] draft civil claim , gathered favourable evidence , consulted her mother [ a lawyer ] on this question , and discussed the questions raised by [ GPE ’s ] civil case even during DATE . ”

ORG also found that the recordings made by SŠ had been properly admitted as evidence , and that the unlawfully - obtained evidence ( the secretly taped telephone conversation of DATE ; paragraph CARDINAL above ) had been rightly excluded from the case . That decision was final .

On an unspecified date the applicant was released from prison after having completed her sentence .

The relevant domestic law and practice , as well as the relevant international law , have been summarised in the judgment of CARDINAL DATE in the case of PERSON GPE ( [ ORG ] no . CARDINAL/CARDINAL , § § DATE ) .


CASE OF VERLAGSGRUPPE NEWS GMBH v. AUSTRIA

Violation of Art. 10;Pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings

NORP The applicant company is the owner and publisher of the DATE magazine News and has its registered seat in GPE .

NORP In DATE ORG ( PERSON ) , PERSON , authorised the performance of Mr PERSON 's “ Container Action ” during the Vienna International Festival ( Wiener Festwochen ) . The staging took place in a container where actors figured as asylum seekers in GPE who were successively voted out for expulsion by the public . This container action met severe criticism by the public , inter alia , by members of ORG ( ORG ) .

On DATE the newspaper PERSON published an open letter to PERSON PERSON written by the NORP artist PERSON , in which he thanked and congratulated Mr PERSON for having allowed Mr PERSON 's performance . CARDINAL passage of the open letter read as follows :

“ ... It is not to be expected that the PERSON , ORG , PERSON , ORG , ORG , and whatever else these spiritually depraved political upstarts and their various beer - tent entertainers may be called , will have the slightest awareness of how embarrassing , dastardly and frequently absurd they are . ...

( NORP )

... Man kann von den Haiders , ORG , PERSON , ORG , ORG und wie diese seelenhygienisch heruntergekommenen GPE und ihre sonstigen PERSON , nicht die geringste GPE in ihre PERSON , GPE häufige ORG verlangen . ... ”

Subsequently the ORG politicians quoted in this letter , except for PERSON ORG , filed private prosecution proceedings for defamation against PERSON PERSON , which they withdrew later on .

On DATE the applicant company published the following article on page CARDINAL of its issue no . CARDINAL :

“ Lawsuit against PERSON

ORG grandees sue critical artist PERSON . They are not ' spiritually depraved ' , they maintain .

PERSON is suing PERSON . He is not alone , though : PERSON , PERSON and PERSON have all launched a powerful attack on PERSON PERSON with the assistance of the law firm PERSON .

The reason is that the artist PERSON , a critic of the Government , wrote an ' open letter ' in the PERSON lavishing praise on the GPE city councillor for cultural affairs , PERSON ( ÖVP ) . Shortly before this , however , PERSON had allowed ORG 's provocative container to be installed outside the GPE ORG as a spectacle for the International Festival – despite bitter opposition from the PERSON GPE , a furious GPE ORG and the Minister of ORG , PERSON , who threatened prosecution .

PERSON PERSON wrote in the PERSON at the time : ' It is not to be expected that the PERSON , ORG , PERSON , ORG , ORG , and whatever else these spiritually depraved political upstarts and their various beer - tent entertainers may be called , will have the slightest awareness of how embarrassing , dastardly and frequently absurd they are ' ( end of quotation ) . ORG will not stand for this humiliation . They have instructed LOC , with which the Minister of ORG severed ties in DATE , to file a peppery lawsuit against Mr PERSON .

' Dastardly ' . In the private lawsuit it was stated that the allegations made in PERSON PERSON 's letter were ' untrue ' and that the ' unsubstantiated accusation ' that ORG were “ dastardly ” amounted to ' what would appear to be an absolutely classic case of defamation within the meaning of LAW . The same applied to the expression ' spiritually depraved political upstarts ' .

PERSON , now the sole partner of the law firm to which the current Minister of Justice Mr PERSON still belonged DATE , has called for PERSON to be given ' punishment commensurate with his guilt ' as the person responsible for the deceitful smear .

Last stop PERSON . As has happened in a number of similar cases , PERSON could be acquitted of defamation at first instance , since an artist really should have the right to express strong criticism . But at final instance Judge PERSON , known to be ORG - friendly , could come into the frame . PERSON was appointed to ORG board of governors by the ORG , and that creates at least an appearance of bias .

Suspicion . Even the President of ORG , PERSON , is somewhat astonished at PERSON , especially as the lawyer persists in retaining ' PERSON ' in the law firm 's name : ' If a former partner of the current Minister of Justice is stressing how important it is for PERSON 's name to appear on the law firm 's notepaper , the uninformed observer will suspect there is something political behind it . '

Indeed . ”

Above the article a photo showing Mr Westenthaler standing between PERSON PERSON and PERSON was published .

Mr Westenthaler , CARDINAL of the ORG politicians concerned , filed a request for forfeiture of the applicant company 's issue no . CARDINAL of DATE .

On DATE the ORG ( PERSON ) , after having held a hearing , granted this request pursuant to section CARDINAL § CARDINAL of LAW and ordered the applicant company to pay the costs of the proceedings .

The court noted in its reasoning that the quoted passage consisted of value statements which insulted the plaintiff within the meaning of Article CARDINAL of LAW ) . The fact that the article merely quoted the impugned statements and had reported in a neutral manner about the criticism at issue was irrelevant for the proceedings under section CARDINAL of LAW . In the light of LAW , the court nevertheless expressed doubts as to the constitutionality of section CARDINAL of LAW as it did not provide for protection of a correct quotation of an incriminated passage at stake in pending defamation proceedings . Thus , in the court 's view , comprehensive reporting and criticism about pending defamation proceedings would be rendered practically impossible .

The applicant company appealed , arguing that the forfeiture infringed its right to freedom of expression under LAW .

On DATE ORG ( Oberlandesgericht ) upheld ORG decision in essence . The court first noted that the article showed by its appearance and structuring that it did not intend neutral reporting . The court referred in this regard to the repeated hints to PERSON PERSON , the allusions to the political motivations and misuse of the law - suits and the passage concerning the outcome of the defamation proceedings before ORG , which in particular expressed that an artist should have the right to sharp criticism . The court further noted that the passage at issue had to be assessed in the light of the article as a whole . In this regard , the court found that the reporting style used was typical for News , namely the use of special layout , highlighting certain words in bold or italics and adding pictures etc . , which aimed at influencing the reader unconsciously . The first part of the article , including the passage at issue , might still be regarded as objective reporting when being assessed isolated . Furthermore , however , the subtitle of the subsequent passage , namely the word “ dastardly ” written in bold , caught the reader 's eye and focused his mind in an unambiguous direction , incriminating the plaintiff . Even though the subsequent passage merely dealt with the contents of the law - suits , it conveyed to the reader that the plaintiff was in fact dastardly as some words were emphasised in italics and thereby attained independent significance . The court concluded that the article had not limited itself in objective citation . The first instance court had falsely classified the article as reporting on court proceedings as such reporting presumed the existence of court trials whereas in the present case there had only been a private prosecutors ' action . When balancing the interests involved , i.e. , the right to freedom of expression of the applicant company on the one hand , and the interest of the plaintiff not to be defamed , on the other , the court found in favour of the latter . It noted that even accepting that there was a public interest in the subject matter at issue , the allegation against the plaintiff , namely that he had a dastardly character without having provided any factual basis for this assertion , defamed him within the meaning of LAW and was worthless information for public debate . Therefore , it exceeded the limits of lawful criticism LAW CARDINAL of the Convention . Thus , the interference with the applicant company 's right to freedom of expression , namely the forfeiture of the above issue , was necessary and also proportionate to the aim pursued . This all the more as forfeiture concerned in general only older issues with no relation to the present actuality and with merely historical interest .

Finally , ORG did not share ORG concern as regards a possible unconstitutionality of CARDINAL of LAW . The court noted that , in any way , the criteria set up under LAW had to be considered when assessing whether or not a statement concerned established an offence within the meaning of Article CARDINAL of LAW .

This decision was served on the applicant company 's lawyer on DATE .

Article CARDINAL of LAW ) provides :

“ CARDINAL . Anyone who in such a way that it may be perceived by a third party accuses another of possessing a contemptible character or attitude or of behaviour contrary to honour or morality and of such a nature as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding DATE or a fine ...

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

Article CARDINAL of the Criminal Code provides :

“ CARDINAL . Anyone who , in public or in the presence of several others , insults , mocks , mistreats or threatens to mistreat a third person , shall be liable to imprisonment not exceeding DATE or a fine ... unless he is liable to a more severe penalty under another provision ... ”

A specific sanction provided for by LAW is forfeiture ( GPE ) of the publication concerned ( section CARDINAL ) . Forfeiture may be ordered in addition to any normal sanction under LAW ( section QUANTITY ) .

Forfeiture can also be ordered in separate so - called “ objective ” proceedings for the suppression of a publication , as provided for under section CARDINAL § CARDINAL of LAW , by virtue of which :

“ Forfeiture shall be ordered in separate proceedings at the request of the public prosecutor or any other person entitled to bring claims if a publication in the media satisfies the objective definition of a criminal offence and if the prosecution of a particular person can not be secured or if conviction of such person is impossible on grounds precluding punishment , has not been requested or such a request has been withdrawn ... ”


Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

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

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

On DATE the applicant , leaving a shop , took a bag belonging to Mr Zh . , who later turned out to be an off - duty police officer . According to the applicant he took the bag because of a misunderstanding . Having seen the applicant leaving with his bag , Mr Zh . caught up with him and asked him if the bag was heavy to carry . Receiving a negative reply from the applicant , PERSON . punched him once in the face . PERSON . later explained to the investigators that when the applicant turned to face him he got the impression that the applicant was going to hit him with a briefcase , and therefore , being in a state of agitation because of the daylight theft of his bag , he had instinctively punched him in the face .

On DATE the applicant went to the doctor who noted split skin on the applicant ’s eyebrow and CARDINAL bruises on his cheek . No other injuries were recorded .

On DATE the Lviv ORG ordered a medical examination of the applicant .

On DATE the medical expert concluded that the applicant had split skin on his left eyebrow measuring CARDINAL by QUANTITY and CARDINAL bruises near the left eye and on the left cheek measuring respectively CARDINAL by QUANTITY and CARDINAL by QUANTITY . The expert classified them as a minor injury .

From DATE the applicant was in a local hospital .

On DATE the same medical expert issued an additional opinion . He took into consideration that on DATE the applicant was admitted to a local hospital , where he had an X - ray examination that showed a fracture of his cheekbone . The expert reported a fracture of the applicant ’s cheekbone and bruises on his face and concluded that the applicant ’s injury fell within the category of medium - level injury

On DATE ORG instituted proceedings against PERSON . for intentional infliction of medium - level bodily harm .

In DATE the investigator in the case ordered a further expert examination of the matter , with a view to resolving the discrepancies between the CARDINAL expert opinions . The examination was conducted by a commission of experts on DATE . The commission , comprising the initial expert and CARDINAL heads of ORG , established on the basis of medical evidence that the applicant had suffered a fracture of the left cheekbone , bruises and concussion . The experts concluded that these injuries amounted to mediumlevel bodily harm with long - term effects on the applicant ’s health .

In DATE a further expert examination of the applicant ’s injury was requested by ORG . DATE and DATE that office conducted complex medical examination of the same medical evidence and did not confirm the fracture of the applicant ’s cheekbone .

Meanwhile , the applicant obtained a number of medical opinions from specialists , who confirmed that he had a cheekbone fracture .

On DATE , relying on the conclusion of the latest medical examination , the investigator decided to terminate the criminal proceedings against Mr Zh . for want of proof of crime ( infliction of medium - level bodily harm ) and because further prosecution ( for infliction of minor bodily injury ) was now time - barred .

By a letter of CARDINAL DATE , the Head of ORG informed the investigator that due to conflicting conclusions on the same X - ray as to the existence or otherwise of the cheekbone fracture a further forensic examination should be conducted .

By a letter of DATE , the Head of ORG asked the investigator for to arrange a visit by the applicant to that office . The applicant arrived in GPE but the examination did not take place , as the applicant refused to be hospitalised for this purpose .

By a letter of CARDINAL DATE the Head of ORG invited the applicant to have an X - ray examination in GPE since he had not had CARDINAL in GPE . Apparently , such examination was not carried out .

On DATE ORG closed the criminal proceedings against PERSON . on the same grounds as in the decision of DATE .

On DATE ORG quashed the decision of DATE .

On DATE ORG closed the criminal proceedings against PERSON . This decision was quashed by ORG on DATE .

On DATE the criminal proceedings were terminated due to prosecution being time - barred .

By a letter of DATE the Prosecutor General replied to the applicant ’s complaint about the termination of the criminal proceedings . He considered that the decision to terminate the proceedings was well - founded and that PERSON . had been acting as a private person , since he had been in plain clothes , had been off duty and had not identified himself to anyone as a police officer .

On DATE ORG rejected the applicant ’s complaint against the prosecutor ’s decision . The court noted in particular that the seriousness of the injuries sustained by the applicant could not be established conclusively because he had flatly refused to have an additional X - ray examination .

On DATE the applicant instituted civil proceedings in GPE ORG against medical experts and doctors in GPE and GPE , seeking compensation in respect of non - pecuniary damage resulting from their unlawful actions .

On DATE the court found against the applicant , having established that the medical experts and doctors had been acting within their competence .

On DATE ORG upheld the decision of the first - instance court .

On DATE the Deputy President of ORG transferred to the President of ORG the applicant ’s request for an extraordinary review of his case . This request was refused on DATE .

On DATE the Deputy President of ORG refused another request by the applicant for an extraordinary review of his case .


The applicant , ORG , is a public limited company , having its registered seat in PERSON ( GPE ) . It is represented before the ORG by Mr PERSON and PERSON , who are both lawyers practising in GPE . The respondent Government are represented by their Agent , Mr R.A.A. PERSON , of ORG . ORG is represented by PERSON and PERSON , and PERSON .

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

The applicant company 's activities include the operation of a sugar factory on GPE and the export of sugar to ORG ( ORG ) . Since GPE produces no sugar , the sugar is bought from cane sugar refineries in GPE and GPE . After purchase , the sugar is transported to GPE , where it is cleaned , milled and packed .

The applicant company operates within the legal framework of the NORP Council Decision CARDINAL/CARDINAL/EEC of DATE . ORG is based on Part IV of LAW , relating to the association of overseas countries and territories with the ORG . GPE is CARDINAL of these “ overseas countries and territories ” ( “ DATE ” ) . Part IV of LAW provides the basis for the abolition of customs duties on goods originating from OCTs when imported into the ORG . In accordance with LAW , the details of and the procedure for the association of the OCTs with the ORG are set out in LAW .

Since DATE , there have been several successive Implementing Conventions . ORG CARDINAL/CARDINAL/EEC is the sixth LAW . The original version of the sixth LAW provided for the possibility of importing goods originating from DATE to the ORG free of customs duties or charges . Goods were considered to be of DATE origin not only when they were wholly obtained within DATE concerned , but also if they were obtained from CARDINAL of the ACP ( LOC , LOC , GPE or the ORG and underwent work or processing in DATE .

The sixth Implementing Convention was amended at mid - term by ORG CARDINAL/CARDINAL/EEC of DATE . This amendment severely impeded the commercial operations of the applicant company , since it limited the levy free imports of sugar of ORG / DATE origin within the ORG to QUANTITY per year .

Following the adoption of ORG CARDINAL/CARDINAL/EEC , the applicant company instituted summary injunction proceedings ( kort geding ) before the President of ORG ( arrondissementsrechtbank ) of GPE seeking an interim order prohibiting :

On DATE the President of ORG of The GPE declined jurisdiction to hear the applicant company 's claims against ORG and ORG , as ORG ( College van Beroep voor het GPE ) was the competent judicial body for claims concerning import levies , agricultural levies and/or import licences . As to the applicant company 's claim against the authorities of GPE , the President decided to refer a number of questions to ORG of ORG ( ECJ ) for a preliminary ruling , within the meaning of ( former ) LAW , on the validity of ORG of DATE and , pending the outcome of the proceedings before the ECJ , provisionally granted the interim measure sought by the applicant company against the authorities of GPE .

A hearing was held before the ECJ on DATE and , on DATE , ORG to the ECJ presented his ORG . Under LAW of LAW of the ECJ and LAW , the submission of the Opinion of the Advocate General brought the oral proceedings before the ECJ to an end .

The applicant company 's request of DATE to be allowed to respond to the ORG was rejected by the ECJ in an order of DATE . The ECJ held inter alia :

“ CARDINAL . LAW of ORG and the Rules of Procedure of the Court make no provision for the parties to submit observations in response to ORG .

However , ORG relies on the case - law of ORG concerning the scope of Article CARDINAL ) of ORG ) , and in particular on the judgment of DATE in GPE ( Reports of Judgments and Decisions , CARDINAL , p. CARDINAL ) .

As the ORG has consistently held , fundamental rights form an integral part of the general principles of law , the observance of which it ensures ( see , in particular , Opinion CARDINAL of DATE [ DATE ] ECR I-CARDINAL , paragraph CARDINAL ) . For that purpose , the ORG draws inspiration from the constitutional traditions common to the Member GPE and from the guidelines supplied by international treaties for the protection of human rights on which the Member GPE have cooperated or of which they are signatories . The LAW has special significance in that respect ( see , in particular , Case C-CARDINAL/CARDINAL ORG [ DATE ] ORG , paragraph CARDINAL ) .

Moreover , those principles have been incorporated in Article CARDINAL ) of LAW , according to which ' The Union shall respect fundamental rights , as guaranteed by LAW signed in GPE on CARDINAL DATE and as they result from the constitutional traditions common to ORG , as general principles of Community law ' . According to LAW , the ORG is to ensure that this provision is applied ' with regard to action of the institutions , in so far as [ it ] has jurisdiction under the Treaties establishing ORG and under [ the ] LAW [ on ORG ] ' .

It is also appropriate to recall the status and role of the Advocate General within the judicial system established by LAW and by LAW of ORG , as set out in detail in ORG .

In accordance with Articles CARDINAL and CARDINAL of LAW , ORG consists of ORG and is assisted by Advocates General . LAW lays down identical conditions and the same procedure for appointing both judges and Advocates General . In addition , it is clear from Title I of LAW of ORG , which , in law , is equal in rank to the LAW itself , that the Advocates General have the same status as the ORG , particularly so far as concerns immunity and the grounds on which they may be deprived of their office , which guarantees their full impartiality and total independence .

Moreover , the Advocates General , none of whom is subordinate to any other , are not public prosecutors nor are they subject to any authority , in contrast to the manner in which the administration of justice is organised in certain Member GPE . They are not entrusted with the defence of any particular interest in the exercise of their duties .

The role of the Advocate General must be viewed in that context . In accordance with LAW , his duty is to make , in open court , acting with complete impartiality and independence , reasoned submissions on cases brought before ORG , in order to assist ORG in the performance of the task assigned to it , which is to ensure that , in the interpretation and application of the LAW , the law is observed .

Under LAW of LAW of ORG and LAW , the Opinion of the Advocate General brings the oral procedure to an end . It does not form part of the proceedings between the parties , but rather opens the stage of deliberation by ORG . It is not therefore an opinion addressed to the judges or to the parties which stems from an authority outside the ORG or which ' derives its authority from that of ORG department [ in the NORP version , " ministère public " ] ' ( judgment in PERSON v GPE , cited above , paragraph CARDINAL ) . Rather , it constitutes the individual reasoned opinion , expressed in open court , of a Member of ORG itself .

The Advocate General thus takes part , publicly and individually , in the process by which the ORG reaches its judgment , and therefore in carrying out the judicial function entrusted to it . Furthermore , the ORG is published together with the ORG 's judgment .

Having regard to both the organic and the functional link between the Advocate General and the ORG , referred to in DATE of this order , the aforesaid case - law of ORG does not appear to be transposable to the Opinion of the Court 's Advocates General .

Moreover , given the special constraints inherent in Community judicial procedure , connected in particular with its language regime , to confer on the parties the right to submit observations in response to the Opinion of the Advocate General , with a corresponding right for the other parties ( and , in preliminary ruling proceedings , which constitute the majority of cases brought before the ORG , all the Member GPE , the ORG and the other institutions concerned ) to reply to those observations , would cause serious difficulties and considerably extend the length of the procedure .

Admittedly , constraints inherent in the manner in which the administration of justice is organised within the ORG can not justify infringing a fundamental right to adversarial procedure . However , no such situation arises in that , with a view to the very purpose of adversarial procedure , which is to prevent the ORG from being influenced by arguments which the parties have been unable to discuss , the ORG may of its own motion , on a proposal from the Advocate General or at the request of the parties , reopen the oral procedure , in accordance with LAW , if it considers that it lacks sufficient information , or that the case must be dealt with on the basis of an argument which has not been debated between the parties ( see , in particular , with regard to the reopening of the oral procedure , the order of DATE in Case C-CARDINAL/CARDINAL Legros and Others , not published in the ECR , and the judgment of DATE in Case C-CARDINAL/CARDINAL PERSON and Others [ CARDINAL ] ECR I-CARDINAL ; the order of DATE in Case C-CARDINAL/CARDINAL Meng , not published in the ECR , and the judgment of CARDINAL DATE in Case C-CARDINAL/CARDINAL Meng [ DATE ] ORG I-CARDINAL ; the order of CARDINAL DATE in Case C-CARDINAL/CARDINAL Peterbroeck , not published in the ECR , and the judgment of DATE in Case C-CARDINAL/CARDINAL Peterbroeck [ DATE ] ECR I-CARDINAL ; the order of DATE in Case PERSON , not published in the ECR , and the judgment of CARDINAL DATE in Case C-CARDINAL/CARDINAL PERSON [ DATE ] ORG ; and the order of CARDINAL DATE in Case C-CARDINAL/CARDINAL Verkooijen , not published in the ECR ) .

In the instant case , however , ORG 's application does not relate to the reopening of the oral procedure , nor does it rely on any specific factor indicating that it would be either useful or necessary to do so .

ORG 's application for leave to submit written observations in response to ORG must therefore be dismissed . ”

By a judgment of DATE , the ECJ gave the requested preliminary ruling in which it upheld the validity of ORG of DATE .

The summary injunction proceedings before the President of ORG of GPE were subsequently discontinued .


Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE , LOC . ORG ( “ the Government ” ) were initially represented by Mr P. Laptev , the former Representative of GPE at ORG , and subsequently by their Representative , PERSON .

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

The applicant possessed a plot of land , which was in his family ’s de facto tenure for DATE . In DATE he applied to the local authority ( Отдел архитектуры и градостроительства администрации Адлерского района г. LOC ) seeking to have his title to the plot registered . However , the local authority refused his request . The applicant brought proceedings against the local authority .

On DATE ORG of GPE granted the applicant ’s claim and obliged the defendant to register the applicant ’s title to the plot of land at issue . No appeal was lodged against the judgment , and it became binding and enforceable .

On an unspecified date the defendant filed an application for reopening of the case in view of the newly discovered circumstances . The defendant referred to the decision of the head of the local administration dated DATE which could have affected the outcome of the proceedings .

By the decision of DATE ORG granted the defendant ’s request , quashed the judgment of DATE and reopened the proceedings .

On DATE ORG decided that the applicant ’s claim should be dismissed . However , on DATE the ORG quashed the above judgment on appeal , declared the decision of DATE void and granted the applicant ’s claim .

On an unspecified date the defendant lodged an application for supervisory review of the appeal decision of DATE .

On DATE the Presidium of ORG held a supervisory - review hearing and quashed the decision of DATE and remitted the case for a fresh examination at the first - instance court .

The applicant lodged an application for supervisory review of the decision of DATE , but on DATE ORG of GPE dismissed his request .

On DATE ORG left the applicant ’s action without consideration due to the applicant ’s alleged failures to appear for the hearings .

In DATE , as soon as the applicant learned about the decision of DATE , he tried to file an appeal against it claiming to have never been apprised of any hearings before the district court .

In the final decision of DATE ORG held that the applicant had failed to provide the court with valid reasons for his absence from the hearings and that he had failed for a long time to raise this issue before the court . The applicant ’s reference to the absence of summons in the case file was left unexamined .

However , following the applicant ’s request , on DATE the Presidium of ORG found that there had been no proof of the applicant ’s notification of the hearings of DATE in the case file . On that ground it quashed the decision of DATE and remitted the case for a fresh examination at the first - instance court .

The outcome of the fresh examination of the applicant ’s case has not been made known to the ORG .


The applicants are NORP national , born in DATE and detained in FAC , GPE .

He represented before the ORG by Mr. PERSON , a lawyer practising at PERSON , Solicitors , in GPE , GPE .

A.

The applicant owned a public house jointly with a partner . The applicant had financial difficulties and agreed to accept a sizeable loan from a customer which he was unable to repay . He agreed to act as a drugs courier in the hope of clearing his debt to the customer . On DATE he drove a car from GPE to GPE to collect the packages and on his return to GPE he was stopped by the police and QUANTITY of cannabis was found to the value of £ MONEY .

On DATE , the applicant pleaded guilty to a charge that on DATE he was concerned in the supplying of a controlled substance , namely cannabis resin , contrary to section CARDINAL(CARDINAL)(b ) of ORG DATE . At the trial the ORG accepted that the applicant 's involvement was as a courier only .

The court adjourned to consider a number of reports prior to sentencing the applicant . These reports included , inter alia , a ORG report , reports from the applicant 's psychologist and general practitioner and a letter from the applicant 's sister . These reports revealed that the applicant was previously of good character and had no previous convictions . He was a married man with CARDINAL children and retained the support of his family . He had come under extreme financial pressure in his partnership of the public house , and the business had been repossessed . This financial anxiety , combined with the resurgence of repressed psychological problems due to childhood sexual abuse , caused the applicant to become depressed , for which he sought professional help . The applicant had become less depressed with medical assistance and had commenced a college course .

On DATE , the court sentenced the applicant to DATE imprisonment .

Counsel advised the applicant that the sentence was excessive and the applicant lodged a written note seeking leave to appeal against his sentence referring to , inter alia , his previous good character , the stress and depression he was under when the offence was committed , and the fact that his role was limited to that of a courier of a class B drug on DATE . The medical and social reports relied on at his trial were attached to the note .

The trial judge prepared a note for the appeal against sentence in which he stated that he had to balance , on the one hand , the serious nature of the offence involving a substantial quantity of cannabis , the need for the court to publicly recognise this and , on the other hand , the mitigating factors . He considered the balance had been appropriately struck . Furthermore , the grounds of appeal appeared to add nothing to that which was put before him in mitigation .

Leave to appeal against the sentence was refused by a single High Court judge on DATE . He stated :

" Having regard to the whole circumstances of the offence , it can not be argued that the sentence imposed failed to take account of the matters raised in ORG , nor that ( even for an offence on DATE ) the sentence excessive . "

The applicant was not present when the application for leave to appeal was considered and was not heard on the application by the judge .

The applicant appealed against the refusal of leave to appeal . Counsel 's written opinion supporting the appeal was filed at the court . His appeal against the refusal to grant leave to appeal was refused by ORG on DATE , which adopted the same reasons as the single judge . The applicant was not present when the application for leave to appeal was being considered and was not heard on the application by the court .

B. Relevant domestic law and practice

In GPE , appeals against the sentences imposed by ORG of Justiciary are regulated by Part ORG of FAC ( GPE ) Act DATE . The appeal lies to ORG of Justiciary sitting as an appellate court . It is necessary for leave to appeal to be granted . There is no provision in the law of GPE for an appeal against sentence to be heard without leave being granted , and no further national remedy if leave is refused . If leave to appeal is granted , the ORG is represented at the hearing of the appeal .

Section CARDINAL of the Criminal Procedure ( GPE ) Act DATE provides ;

" ( CARDINAL ) The decision whether to grant leave to appeal for the purposes of s.CARDINAL(CARDINAL ) of this Act shall be made by a judge of ORG who shall -

( a ) if he considers that the documents mentioned in this subsection ( CARDINAL ) below disclose arguable grounds of appeal , grant leave to appeal and make such comments in writing as he considers appropriate ; and

( b ) in any other case-

( i ) refuse leave to appeal and give reasons in writing for the refusal ...

( CARDINAL ) The documents referred to in subsection ( CARDINAL ) above are -

( a ) the note of Appeal ...

( c ) where the judge who presided at the trial furnishes a report under LAW , that report ; ...

( CARDINAL ) Where leave to appeal is refused under subsection ( CARDINAL ) above the appellant may , within DATE ..... , apply to ORG for leave to appeal .

( CARDINAL ) In deciding an application under subsection ( CARDINAL ) above the High Court shall-

( a ) if after considering the documents mentioned in the subsection ( CARDINAL ) above and the reasons for the refusal , the court is of the opinion that there are arguable grounds of appeal , grant leave to appeal and make such comments in writing as the court considers appropriate ; and

( b ) in any other case -

( i ) refuse leave to appeal and give reasons in writing for the refusal ; ...

( CARDINAL ) Consideration whether or not to grant leave to appeal under subsections ( CARDINAL ) or ( CARDINAL ) shall take place in chambers without the parties being present . ”

The ORG have the right to appeal against unduly lenient sentences under LAW . Such an appeal does not require the granting of leave to appeal .


Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);No violation of Article 6+6-3 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-a - Information on nature and cause of accusation;Article 6-3-b - Preparation of defence;Article 6-3 - Rights of defence;Article 6 - Right to a fair trial);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

The applicant was born in DATE and lives in GPE .

In DATE the applicant was responsible for the privatisation of a ORG company “ A. ” by way of a buyout of ORG by its employees .

On DATE criminal proceedings were initiated against the applicant on suspicion of having defrauded A. ’s employees in the privatisation process .

On several occasions DATE the proceedings were suspended ( in particular , DATE and DATE ; DATE and DATE ; and DATE and DATE ) .

On DATE the applicant was placed under an obligation not to abscond .

On DATE , in response to a complaint by the applicant ’s advocate , the GPE ORG acknowledged that the proceedings had suffered unnecessary delays and inactivity on the part of the investigative authorities and informed him that disciplinary measures had been taken against the investigator in charge .

NORP In DATE ORG approved the final indictment and committed the applicant for trial . According to the indictment , the applicant was accused of fraud and an attempt to misappropriate State property by way of abuse of his position ( Articles CARDINAL , CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW in force at the material time ) .

DATE and DATE ORG scheduled CARDINAL hearings in the applicant ’s case . CARDINAL of these hearings were adjourned : CARDINAL on account of the absence of the prosecution or at the prosecution ’s requests ; CARDINAL on account of the absence of CARDINAL of the injured parties ; CARDINAL on account of other court business ; and CARDINAL on account of the applicant ’s absences .

On DATE the Primorskiy ORG of Odessa ruled that the applicant ’s actions did not fall within the ambit of the provisions of LAW relied upon by the prosecution . His actions did , however , qualify as abuse of position punishable by LAW in force at the material time . Consequently , the court convicted the applicant of abuse of position and sentenced him to DATE imprisonment , but absolved him from punishment , granting him an amnesty .

The applicant appealed , contending that the prosecution had never charged him with violating LAW . Consequently , the trial court had acted ultra vires in convicting him of the crime punishable by that statute . The applicant next presented various arguments in his appeal against the charge of abuse of position under LAW of LAW .

On DATE the applicant complained to ORG of unreasonable delays in the proceedings against him , in particular , a protracted failure by the trial court to submit the case file to ORG .

On DATE the Primorskiy ORG informed the applicant that his case had been transferred to the Odessa Regional Court of Appeal on DATE .

On DATE the NORP Regional Court of Appeal held an oral hearing in the applicant ’s presence and upheld the applicant ’s conviction . It found , in particular , that by re - qualifying the applicant ’s charges under a different LAW , the first - instance court had correctly assessed the facts and had in no way increased the burden on the applicant . It had therefore not exceeded the scope of its competence .

The applicant appealed on points of law , raising essentially the same arguments as in his ordinary appeal .

On DATE ORG rejected the applicant ’s appeal on points of law .

Pertinent provisions of LAW of DATE ( in force at the material time ) read as follows :

“ ... Misappropriation of ORG or collective property by an official by way of abuse of his position -

Shall be punishable by deprivation of liberty from DATE with or without confiscation of property and by deprivation of the right to occupy certain positions or carry out certain activities for a term of DATE ... ”

“ Abuse of power or position , i.e. intentional , promiscuous , or based on other personal interests or interests of third parties , use by an officer of his power or position contrary to the interests of the service , which causes significant damage to ORG or public interests or the rights and interests of certain physical or juridical persons protected by law , -

Shall be punishable by deprivation of liberty from DATE or correctional labour for DATE , with deprivation of the right to occupy certain positions or carry out certain activities for DATE ... ”

Pertinent provisions of LAW of DATE ( as worded at the material time ) read as follows :

“ Examination of a case shall be only in respect of the defendants and within the scope of the indictment announced to them ... ”

“ Having completed preparatory actions ... the presiding judge shall explain to the participants of the hearing their rights , including the right to give explanations concerning the appeals presented and to speak during judicial deliberations ...

After this , the presiding judge or one of the judges shall report the essence of the conviction or a ruling , shall inform who had appealed against it and to what extent , shall state the main arguments of the appeals and objections by other participants of the proceedings , if they had been submitted . The presiding judge shall verify whether the persons who have lodged the appeals support them .

If the court of appeal has not carried out a judicial investigation upon completion of the [ above ] actions ... the presiding judge shall familiarise the participants of the hearing with any additional materials , if they were submitted , materials that arrived from the first - instance court by way of fulfilment of assignment , shall hear their arguments with respect to the appeal submitted ... and shall proceed to judicial deliberations .

Before the court retires to the judges’ deliberation chamber ( нарадча кімната ) for preparation of the ruling ... the defendant , if he participated in the appeal hearing , shall be given an opportunity to give a final speech .

“ As a result of the examination of an appeal ... the court of appeal may :

CARDINAL ) make a ruling upholding the conviction or the decision and reject the appeal ; quash the conviction or the decision and return the case to the prosecutor for additional investigation or for a new trial by the first - instance court ; quash the conviction or the decision and terminate the proceedings ; modify the conviction or the decision ;

CARDINAL ) NORP pronounce its own conviction , having quashed the conviction of the first - instance court in full or in part ;

CARDINAL ) NORP pronounce its own decision , having quashed the decision of the first - instance court in full or in part .


LAWYER PARTNERS a.s. v. SLOVAKIA AND OTHER APPLICATIONS

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria

NORP The applicant , PERSON . , is a private limited company with its registered office in GPE . It was represented before the ORG by Mr J. ORG , a lawyer practising in GPE . Further details concerning the present CARDINAL applications lodged by the applicant company are set out in the appendix .

The Government of GPE ( “ the Government ” ) were represented by their Agent , PERSON .

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

On DATE the applicant company concluded a contract with ORG , a public - law institution . Under that contract , taken together with CARDINAL additional ones concluded on DATE and DATE , the applicant company acquired the right , in exchange for compensation to ORG , to recover unpaid broadcast receiver licences in CARDINAL cases , plus additional sums for default on those payments .

NORP The applicant company sued the individuals and legal persons who had refused to pay the debt which it had acquired the right to recover . The applicant company prepared individual actions , with a request for payment notices to be issued against the debtors . Given the number of defendants concerned , the actions were generated by computer software and recorded on ORG ( DVD ) . In the course of DATE the DVDs were sent to the district courts concerned , accompanied by an explanatory letter .

The courts refused to register the actions , indicating that they lacked the equipment to receive and process submissions made and signed electronically .

In view of the differing practice of ORG in respect of the applicant ’s ensuing complaints , the ORG found , on DATE , a breach of the applicant ’s right of access to court in respect of cases where the applicant had been unable to obtain redress at the domestic level ( see Lawyer Partners a.s . v. GPE , CARDINAL . CARDINAL , ORG , ORG , CARDINAL/CARDINAL , ORG , CARDINAL , ORG , ORG , ORG , CARDINAL/CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL , NORP and DATE , ORG DATE ) .

Subsequently the applicant company brought proceedings against the ORG , in which it claimed compensation for damage resulting from the failure to register the actions submitted electronically . In a submission of DATE the applicant company stated that the courts dealing with the claims for damages had asked it to pay prohibitively high deposits in respect of costs and expenses , in accordance with an amendment to LAW enacted which took effect on DATE .

In the present cases the applicant lodged CARDINAL actions with twentyone different district courts in DATE , DATE and DATE . The actions concerned unpaid broadcast receiver licences and they were signed electronically and filed on DVDs . The district courts concerned were unable to register and proceed with the actions as they lacked the necessary equipment . The applicant sought redress before ORG .

The Constitutional Court delivered CARDINAL judgments in which it found that the district courts concerned had breached the applicant ’s right of access to court as guaranteed by LAW , in that they had refused to register its actions . It ordered the courts involved ( with the exception of ORG , which had expressed its readiness to do so in the meantime ) to proceed with such actions in accordance with the relevant provisions of LAW . The judgments explicitly stated that the actions of the applicant should have legal effect from the time they were first submitted to the courts concerned , regardless of any technical impediments preventing that date from being automatically generated within the electronic registration system .

The Constitutional Court further ordered the district courts involved to reimburse the applicant company ’s costs in CARDINAL of the CARDINAL judgments . In the remaining CARDINAL judgments ORG found that it had already ruled in a number of cases lodged by the applicant that the courts had a duty to process submissions made electronically . That fact had to be taken into account when deciding on the applicant ’s claim for costs .

ORG held that the above findings sufficiently redressed the situation complained of . With reference to the ORG ’s practice under LAW it therefore dismissed the applicant ’s claims for just satisfaction , which amounted to MONEY ( ORG ) in respect of each individual action registered on the DVDs . Further details concerning the actions and ORG judgments are set out in the appendix .

In the period subsequent to ORG judgments in the present cases , the ordinary courts proceeded or attempted to proceed with the applicant ’s cases as follows .

In proceedings before ORG the applicant company first indicated that it would provide a reserve copy of the DVDs . That proposal was accepted by ORG . In a letter of CARDINAL DATE the applicant informed the court that it would not submit the DVDs as they had been submitted to ORG in the context of its application . The applicant sent the same reply to CARDINAL other district courts which had asked it to submit the DVDs with its claims . As a result , those courts have not proceeded with the cases .

In the other cases the district courts concerned registered the actions while considering them as having been lodged on the corresponding dates in DATE . They did so on the basis of the DVDs which they had obtained either from the applicant or ORG , or by processing their own copy of the applicant ’s original submission in electronic form . Several courts determined the merits of the applicant ’s claims . CARDINAL other district courts abandoned proceedings as the applicant had not paid the court fees .

Article CARDINAL provides :

“ CARDINAL . The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by GPE ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court .

When the Constitutional Court finds that a complaint is justified , it shall deliver a decision stating that a person ’s rights or freedoms set out in paragraph CARDINAL have been violated as a result of a final decision , by a particular measure or by means of other interference . It shall quash such a decision , measure or other interference . When the violation found is the result of a failure to act , ORG may order [ the authority ] which violated the rights or freedoms in question to take the necessary action . At the same time ORG may return the case to the authority concerned for further proceedings , order the authority concerned to abstain from violating fundamental rights and freedoms ... or , where appropriate , order those who have violated the rights or freedoms set out in paragraph CARDINAL to restore the situation existing prior to the violation .

In its decision on a complaint ORG may grant adequate financial satisfaction to the person whose rights under paragraph CARDINAL have been violated .

ORG decision does not affect the liability for damage or other harm of those who have breached a person ’s rights or freedoms set out in paragraph CARDINAL . ”

Section CARDINAL(CARDINAL ) provides that , when a violation of fundamental rights or freedoms is found , ORG may order the authority liable for such a violation to proceed in accordance with the relevant rules . It may also return the case to the authority concerned for further proceedings , prohibit the continuation of the violation or , as the case may be , order the restoration of the situation existing prior to the violation .

Under section CARDINAL ) , ORG may grant adequate financial satisfaction to a person whose rights or freedoms were breached .

Pursuant to section CARDINAL ( CARDINAL ) , when ORG quashes a decision , interference or other measures and returns the case to the authority concerned , the latter is obliged to re - examine the case and decide on it . The legal opinion expressed by ORG is thereby binding on that authority .

Under LAW the State bears liability for damage caused by public authorities , inter alia by wrongful official actions ( section CARDINAL ) ) .

Liability for damage caused by wrongful official action comprises , inter alia , a public authority ’s failure to take an action within the time - limit set , inactivity or any other unlawful interference with the rights and legally recognised interests of individuals and legal persons ( section CARDINAL(CARDINAL ) ) .

NORP Under LAW the compensation is to cover pecuniary damage , including loss of profit , and , where appropriate and necessary , nonpecuniary damage .