Violation of Art. 3;Violation of Art. 6-1;Violation of Art. 13+3;Remainder inadmissible;Non-pecuniary damage - award

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

The applicant was born in DATE and lives in the town of GPE .

NORP In DATE the applicant was arrested on suspicion of murder . On DATE the Nesterovskiy ORG of the Kaliningrad Region discontinued the criminal proceedings against the applicant on the charge of acquisition of stolen goods in connection with an act of general amnesty adopted by ORG . The applicant was released .

On DATE the applicant was arrested and charged with armed robbery and unlawful possession of weapons . By a judgment of CARDINAL DATE ORG convicted the applicant as charged and sentenced him to DATE imprisonment . On DATE ORG upheld the conviction on the charge of robbery but ordered a new trial on the charge of unlawful possession of weapons . The proceedings were then discontinued because the prosecution dropped the case .

In relation to the above proceedings , the applicant was detained in GPE remand centre no . CARDINAL/CARDINAL from DATE to DATE , from CARDINAL DATE to DATE , and from DATE to CARDINAL DATE . On DATE the applicant was transferred to colony no . CARDINAL in LOC to serve his prison sentence .

The applicant provided the following description of the conditions of his detention in the remand centre . During the first period he was held in a cell measuring QUANTITY . The cell was equipped with CARDINAL beds but housed CARDINAL inmates who took turns to sleep . There was constant noise and movement within the cell . The windows were covered with metal blinds blocking access to daylight and fresh air . There was no sink and the water tap was positioned above the toilet pan , which gave off a fetid smell . Inmates were allowed TIME of outdoor exercise per day . The cell was infested with bugs and cockroaches . In support of his description of the conditions the applicant submitted an affidavit by his former cellmate , PERSON , who had been held in the same cell DATE . PERSON stated that the cell measured QUANTITY and had housed CARDINAL persons , while it had had CARDINAL beds .

During the second and third periods applicant was held in a sixsquare - metre cell that contained CARDINAL - tier bunks and housed CARDINAL inmates . The windows were covered with metal blinds blocking access to natural light and air . There was no ventilation in the cell and in DATE , the temperature peaked at CARDINALºC. In the absence of a sink the water tap was positioned directly above the toilet pan , which was not separated from the rest of the cell . The dining table was QUANTITY away from the toilet . The cell was infested with bugs and cockroaches . The applicant contracted chronic bronchitis . In support of his submissions the applicant produced a written affidavit by his former cellmate , PERSON , who had been held in the same cell from DATE to DATE .

The applicant also submitted a copy of a letter dated DATE sent by ORG to a PERSON , who was detained in remand centre no . CARDINAL/CARDINAL at the time . As follows from this letter , an inquiry carried out by ORG disclosed that detainees in that remand centre were provided with QUANTITY of space per person in the cells . The inquiry also disclosed unspecified deficiencies in the sanitary installations and medical services in the remand centre .

The Government affirmed , with reference to a certificate dated CARDINAL DATE issued by the administration of the remand centre , that from DATE to DATE the applicant was held in cells CARDINAL . CARDINAL , CARDINAL , CARDINAL , DATE , CARDINAL , DATE , DATE , CARDINAL and DATE . These cells measured from CARDINAL to QUANTITY . Between CARDINAL DATE and DATE the applicant was held in cells CARDINAL . CARDINAL , DATE , CARDINAL , DATE , DATE , CARDINAL , CARDINAL , DATE , CARDINAL , DATE , DATE , CARDINAL , DATE , CARDINAL DATE . These cells measured from QUANTITY . The certificate indicated that it was impossible to supply data about the number of detainees in each cell during the relevant periods because the logbooks for DATE had been destroyed . According to a certificate dated DATE , the logbook for DATE was destroyed on the same date in compliance with the DATE storage limit .

With reference to a number of other certificates issued by the national authorities in DATE , the ORG affirmed as follows . In all cells the applicant had been provided with a bed and bedding . Each cell had a table situated at a suitable distance from the toilet , benches and a tap with running water . Each cell had a toilet with a functional flushing system ; each toilet was separated from the main area by a screen of QUANTITY in height . Ventilation was provided through openings in the windows ; the metal shutters / blinds on the windows did not block the normal flow of air . Each cell also had a functional ventilation system . The shutters / blinds were removed DATE . The cells were properly heated to CARDINAL All the necessary sanitary measures were carried out . The remand centre had CARDINAL courtyards , each measuring QUANTITY . The applicant was allowed a TIME outdoor walk per day . The artificial night light was not strong , but was left on for suicide watch . The applicant was given CARDINAL meals per day . The applicant had access to medical services and was not intentionally placed with anyone suffering from tuberculosis .

From DATE the applicant served his sentence of imprisonment in a colony in LOC . In DATE and DATE he brought civil proceedings against ORG , claiming compensation for unlawful deprivation of liberty from DATE to DATE and appalling conditions of detention during that period . The case was submitted to ORG of GPE , which indicated remand centre no . CARDINAL/CARDINAL and ORG as co - defendants of ORG .

NORP By letter of CARDINAL DATE , ORG advised the applicant that a hearing on his claim was listed for DATE and explained his procedural rights to him . As regards the applicant 's participation , the judge wrote :

“ Civil law does not make a provision for transporting detained convicts to a civil court hearing . Thus , the court has no right to bring you to the hearing because that would breach the detention regulations . You have the right to appoint a representative to take part in the examination of your case ... You may also submit a written statement giving your consent to the case being examined in your absence . ”

Following complaints by the applicant , who insisted on his right to be present at the hearing , on DATE and DATE the deputy President of ORG reiterated that the refusal to bring him to the hearing had been lawful and that he could make written submissions or appoint a representative .

On DATE ORG held a hearing . The representative of ORG waived his right to be present and made written submissions . It appears that the representative of the other CARDINAL defendants was present at the hearing . The court considered that the applicant had been afforded an opportunity to appoint a representative and that in any event the written submissions were sufficient . The court held that the applicant 's detention had been lawful because he had been ultimately convicted of a criminal offence . As regards the conditions of detention , ORG held that the applicant had not proved the presence of bugs and cockroaches , that the TIME outdoor exercise allowance was compatible with the detention regulations , and that there was no credible evidence that the applicant had contracted bronchitis . Although the overcrowding of the remand centre was undisputed , ORG found that it had been caused by ( unspecified ) objective factors unrelated to the defendants ' actions .

The applicant lodged an appeal . He submitted , in particular , that he had been denied the right to take part in the hearing .

On DATE ORG upheld the judgment , endorsing the reasoning of ORG . It interpreted the applicant 's failure to appoint a representative as a valid and lawful ground for examining the case in his absence .

In the meantime , the applicant filed another claim against ORG , seeking compensation in respect of pecuniary and non - pecuniary damage incurred through unlawful detention in DATE and DATE and appalling conditions in the remand centre .

ORG indicated ORG , remand centre no . CARDINAL/CARDINAL and ORG as co - defendants .

The judge advised the applicant , by the same standard letter , of the hearing date . She indicated that it would take place in his absence because he was a detainee but that he could appoint a representative .

The administration of the remand centre provided the court with the following information . The cell space of CARDINAL cells amounted to QUANTITY . DATE and DATE the population of the remand centre varied from CARDINAL to CARDINAL detainees .

On DATE the ORG gave its judgment . It dismissed all the claims , finding that the detention had been lawful because the proceedings had been discontinued not by an acquittal but by an act of general amnesty . It also held that the employees of the detention centre had not been responsible for the overcrowding .

On DATE ORG upheld the judgment on appeal . The applicant was not present or represented .

Section CARDINAL of LAW ( Federal Law no . CARDINAL-FZ of DATE ) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by ORG of GPE . Section CARDINAL provides that detainees should be kept in conditions which satisfy the sanitary and hygienic requirements . They should be provided with an individual sleeping place and given bedding , tableware and toiletries . Each inmate should have QUANTITY of personal space in his or her cell .

Order no . CARDINAL issued on DATE by ORG deals with implementation of the “ Remand centre DATE ” programme . The programme is aimed at improving the functioning of remand centres so as to ensure their compliance with the requirements of NORP legislation . It expressly acknowledges the issue of overcrowding in pre - trial detention centres and seeks to reduce and stabilise the number of detainees in order to resolve the problem . The programme mentions GPE remand centre no . CARDINAL/CARDINAL as CARDINAL of the detention centres affected . As of DATE , its design capacity was CARDINAL detainees , but it actually housed CARDINAL inmates .

Article CARDINAL § CARDINAL of LAW of GPE provides that damage caused to the person or property of a citizen shall be compensated in full by the tortfeasor . Pursuant to LAW , ORG agencies and ORG officials shall be liable for damage caused to an individual by their unlawful actions or failure to act . Such damage is to be compensated at the expense of the federal or regional treasury . ORG CARDINAL and QUANTITY of LAW provide for compensation for non - pecuniary damage . Article CARDINAL states , in particular , that non - pecuniary damage shall be compensated irrespective of any award for pecuniary damage .

The Code of Civil Procedure of GPE ( ORG ) provides that individuals may appear before a court in person or act through a representative ( LAW ) . The court may appoint an advocate to represent a defendant whose place of residence is not known ( LAW . LAW ( Law no . CARDINAL-FZ of DATE ) provides that free legal assistance may be provided to indigent plaintiffs in civil disputes concerning alimony or pension payments or claims concerning damage to health in employment - related disputes ( section CARDINAL § CARDINAL ) . In DATE ORG launched a test project in a number of regions concerning provision of free legal assistance in civil - law matters ( decree no . CARDINAL of CARDINAL DATE ) .

The Penitentiary Code provides that convicted persons may be transferred from a correctional colony to an investigative unit if their participation is required as witnesses , victims or suspects in connection with certain investigative measures ( LAW ) . The LAW does not mention any possibility for a convicted person to take part in civil proceedings , whether as a plaintiff or a defendant .

On several occasions ORG has examined complaints by detainees whose requests for leave to appear in civil proceedings were refused by the courts . It has consistently declared the complaints inadmissible , finding that the impugned provisions of LAW and LAW did not , as such , restrict the convicted person 's access to court . It has emphasised , nonetheless , that the convicted person should be able to make submissions to the civil court , either through a representative or in any other way provided by law . If necessary , the hearing may be held at the location where the convicted person is serving his or her sentence , or the court hearing the case may instruct the court with territorial jurisdiction over the correctional colony to obtain the applicant 's submissions or carry out any other procedural steps ( decisions no . CARDINAL-O of DATE , no . CARDINAL of DATE and no . CARDINAL of DATE ) .

Articles DATE and CARDINAL of the ORG provide that the parties can seek the court 's assistance in obtaining evidence . The relevant party should indicate the circumstances impeding the access to such evidence and its relevance to the case , as well as the location such evidence should be collected from . An unjustified failure to comply with the court order can lead to a fine on the person or official in possession of the relevant evidence .

In a given civil case a civil court can request a court in another location to take specific measures in relation to evidence situated in that location ( LAW ORG ) . Carrying out such a request is mandatory and must be done within DATE of its receipt .

Under Articles CARDINAL and CARDINAL of the ORG , a court may hold a session outside the courthouse if , for instance , it is necessary to examine evidence which can not be brought to the courthouse .

Article CARDINAL of the ORG contains a list of situations which may justify a reopening of a finalised case on account of newly - discovered circumstances . By a ruling of CARDINAL DATE ORG indicated that this LAW should be interpreted as , in principle , allowing the launching of a procedure to have a final judgment re - examined on account of newly - discovered circumstances , such as the finding of a violation of LAW in a given case by ORG .


The applicant , PERSON , is a NORP national , who was born in DATE and lives in the city of GPE , GPE region . The respondent Government are represented by PERSON , ORG at ORG .

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

The applicant claimed that during the World War II he had been detained in a NORP concentration camp . By LAW of DATE , former prisoners of NORP concentration camps became entitled to certain social benefits , in particular , to a supplement to their retirement pension . On DATE a special municipal commission ( “ the commission ” ) granted the applicant the pension supplement on this ground .

On DATE the commission revoked its decision of DATE , referring to the lack of evidence that the applicant in fact had been in a concentration camp , and , thus , had indeed been entitled to the supplement .

On DATE the commission decided to withhold PERCENT of the applicant ’s retirement pension to cover the sums wrongly paid to him DATE . As a result , according to the respondent Government , DATE the commission withheld from the applicant ’s pension MONEY to compensate for the previous erroneous payments .

The applicant brought a civil action against the commission seeking restoration of the supplement , recovery of the sums withheld , and compensation for damage .

On DATE ORG of GPE found in the applicant ’s favour , holding that the retirement pension was the applicant ’s “ possession ” . According to LAW , no one could be deprived of his possession otherwise than by a court decision . Therefore , the deduction of PERCENT from his pension by an administrative decision had been unlawful . The district court also noted that the commission had failed to hear the applicant and witnesses , and to obtain an expert opinion . Finally , the court found that no legal procedure existed to revoke the supplement once granted . The court quashed the decision of DATE ordering the commission to return to the applicant the money deducted from his pension and to resume paying him the supplement .

The defendant appealed . On DATE ORG delivered a new judgment on the merits . Firstly , ORG found that the decision to revoke the supplement had been “ well - founded ” . The ORG further stated that , on the other hand , the money paid in excess could be deducted from the retirement pension only in case of an abuse by the pensioner , which was not the case . The court found that the deduction from the applicant ’s pension had been unlawful .

In the operative part of the judgement ORG quashed the decision of DATE , confirming that the applicant was no longer entitled to receive the supplement . ORG also held that no deduction could be made from the applicant ’s pension . However , the ORG did not order , at least explicitly , the reimbursement of the sum withheld DATE .

As follows from the Government ’s submissions , pursuant to the decision of DATE the money withheld was returned to the applicant . Thus , on DATE the local Commission on ORG pensions decided to return to the applicant MONEY ( protocol of the deliberations of the Commission no . CARDINAL ) . On DATE the commission decided to return to the applicant the remaining of the sum withheld , namely MONEY ( protocol of the deliberations no . CARDINAL ) . Those amounts were transferred to the applicant in DATE respectively . The applicant did not contest these facts .


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

On DATE ORG ( ORG PERSON ) , submitting a bill of exchange payable to bearer which required the applicant to pay on demand CARDINAL,CARDINAL,CARDINAL,CARDINAL old NORP zlotys ( PLZ ) , asked ORG ( Sąd Rejonowy ) to issue an order for payment against him .

On DATE the court granted the plaintiff ’s request and ruled that the applicant was to pay the sum in question within DATE from the date of service of the order or , alternatively , within the same time - limit , to lodge an appeal against the said order .

On DATE the applicant lodged an appeal with ORG , submitting that the order was premature since the bill of exchange had been endorsed by him to secure the payment of a loan which , according to the terms of the relevant agreement , was to have been paid off on DATE . He also requested the court to stay the enforcement of the order .

On DATE the plaintiff asked the court to issue a writ of execution in respect of the order of DATE . On DATE the court issued a provisional writ of execution ( i.e. under which assets , by way of security , could be attached to protect claims ) . The final writ of execution was made on CARDINAL DATE . Subsequently , on an unknown date , the plaintiff asked the court to issue CARDINAL further such writs , maintaining that it had to institute enforcement proceedings against the applicant before several different courts because his real and personal property was situated in various towns .

On DATE the case was referred to ORG ( Sąd Wojewódzki ) which , under the rules of civil procedure governing jurisdiction , was competent to deal with the case in ordinary civil proceedings .

On DATE ORG was taken over by ORG ) and , from DATE , ORG replaced it as a plaintiff in the proceedings .

Later , from DATE to CARDINAL DATE the proceedings were stayed at the parties’ joint request .

On DATE ORG issued one writ of execution and dismissed the remainder of the plaintiff ’s application . On DATE , on the applicant ’s appeal , ORG ( Sąd Apelacyjny ) upheld the first - instance decision . On DATE the case - file was transmitted to ORG .

On DATE ORG ordered that evidence be obtained from an expert in banking accountancy . The expert submitted his report to the court on DATE . After having served copies of the report on the parties , the court listed a hearing for DATE .

At that hearing , on the applicant ’s request , the court stayed the proceedings . The applicant produced documents showing that , in the meantime , on DATE , his wife had sued both parties to the proceedings in ORG . She was seeking the annulment of the relevant loan agreement . The plaintiff bank first unsuccessfully opposed the application for a stay and then appealed against the decision staying the proceedings . The appeal was rejected on DATE .

Meanwhile , on DATE , the applicant asked the court to lift the stay , in his words , “ immediately ” . He maintained that the claim for payment against him could be determined without a prior ruling on whether or not the loan agreement had validly been concluded .

On DATE the applicant asked ORG to resume the proceedings . On DATE the court refused to lift the stay because it considered that the determination of the applicant ’s case depended on the outcome of the proceedings relating to the annulment of the loan agreement and that there was , therefore , a sufficient basis for the stay , as defined by LAW ( CARDINAL ) of LAW . The applicant did not contest this decision .

During the stay of the proceedings the trial court made several procedural orders . It stayed the enforcement of the order of payment ( by a decision of CARDINAL DATE which was upheld on appeal on DATE ) . It dealt with the applicant ’s request for the order securing the claim to be amended and rendered in that respect a decision on DATE . It also ruled on CARDINAL plaintiff ’s requests for the decision staying the enforcement of the order of payment to be quashed ( giving decisions of DATE and CARDINAL DATE respectively ) .

On DATE the applicant informed the court that the proceedings concerning his wife ’s claim for declaring the loan agreement null and void had been terminated . He asked the court to resume the proceedings and to fix a hearing date .

The court listed a hearing for DATE . On DATE it gave judgment and awarded the plaintiff PERSON new LANGUAGE zlotys ( ORG ) . It also awarded the costs of the proceedings against the applicant . Both parties appealed .

On DATE the ORG rejected the plaintiff ’s appeal as it considered that it had no legal interest in challenging the judgment granting the relief requested . It further dismissed the applicant ’s appeal .

On DATE the applicant filed a cassation appeal ( kasacja ) with ORG ( Sąd Najwyższy ) . According to information obtained by the ORG from the registry of ORG of ORG , the applicant ’s case was registered under file no . II CKN CARDINAL/CARDINAL and his cassation appeal was dismissed on DATE .

On DATE , acting under the provisional writ of execution of DATE ( see also paragraph CARDINAL above ) and on a request by the creditor , i.e. ORG , ORG ( PERSON ) made an order attaching the applicant ’s shares in ORG ( ORG ) and cash ( an unknown sum ) deposited in ORG of ORG ( ORG Banku ORG ) , by way of security for the creditor ’s claim for payment of ORG CARDINAL,CARDINAL,CARDINAL,CARDINAL pending in ORG . On DATE the applicant lodged a complaint against the actions taken by the bailiff ( skarga na czynności komornika ) , relying on LAW . On DATE the court dismissed the applicant ’s complaint .

On DATE , acting under the final writ of execution of CARDINAL DATE ( see also paragraph CARDINAL above ) and on a request by ORG , ORG instituted enforcement proceedings against the applicant , with a view to selling the assets attached on DATE . According to the applicant , the total value of the attached assets was MONEY , that is to say , MONEY ( ORG ) .

On DATE the applicant , again relying on LAW , made the second complaint against the actions taken by the bailiff in the enforcement proceedings to ORG . He submitted that those actions had been incorrect and unlawful since the bailiff had enforced the order for payment of DATE against matrimonial property , whereas the final writ of execution had been issued against the applicant alone . Moreover , the civil claim in question had not yet been determined as the relevant proceedings were pending before ORG because he had appealed against the order for payment of DATE . He , therefore , asked the court to quash the attachment and to stay the enforcement proceedings .

Shortly afterwards , the applicant ’s case was registered in ORG under file no . ORG CARDINAL/CARDINAL .

On DATE the court decided that information be obtained as to whether the applicant had appealed against the order for payment of DATE and whether in the relevant proceedings any decision staying the enforcement of that order had been made .

On DATE the court ordered that the applicant ’s case be joined with the case registered under file no . II Co CARDINAL/CARDINAL ( the latter case concerned the creditor ’s ( ORG ) request for the applicant ’s attached shares to be sold on ORG ) and assigned to the judge - rapporteur dealing with that case . On DATE the court quashed its previous order and decided that the joinder of the cases be reversed , that is , that the case no . II Co CARDINAL/CARDINAL be joined with the applicant ’s case and assigned to the judge - rapporteur dealing with the applicant ’s case . On CARDINAL DATE the cases were assigned to another judge because the previously appointed rapporteur had resigned .

On DATE ORG , sitting in camera , rejected the applicant ’s complaint of DATE . The court considered that the applicant was again challenging the actions taken by the bailiff on CARDINAL DATE , in particular the attachment order made by the bailiff on DATE . The ORG went on to find that the complaint against the attachment order had already been examined , and finally dismissed , by the same court on DATE . Moreover , in the court ’s opinion , the applicant had clearly lodged his second complaint out of the DATE time - limit prescribed by LAW . In any event , the ORG added , the matter had finally been adjudicated on DATE and , according to the principle of res iudicata , the second complaint had to be rejected on formal grounds . A copy of that decision was served on the applicant on DATE .

On DATE the applicant appealed to ORG , submitting that the court of first instance had manifestly confused his CARDINAL complaints : the complaint of CARDINAL DATE against the attachment of his shares ordered by way of security and that of DATE against the actions taken by the bailiff ( i.e. those taken with a view to selling the attached shares ) on the basis of the final writ of execution in the subsequent enforcement proceedings . Later , a copy of the applicant ’s appeal was served on the creditor , which lodged a reply to the appeal on CARDINAL DATE .

On DATE ORG , sitting in camera , quashed the contested decision and remitted the case to ORG . The appellate court acknowledged that the lower court had failed to note that the applicant had filed CARDINAL complaints , complaints which concerned CARDINAL evidently separate actions taken by the bailiff .

On DATE ORG , relying on the principle of res iudicata , refused to examine the complaint in so far as it amounted to the objection to the attachment order of DATE . It dismissed the remainder of the complaint , finding that the arguments raised by the applicant , in particular those concerning the enforcement of the order for payment while the civil dispute over the same claim was pending , had to be rejected . It found that the bailiff ’s actions had been correct and lawful as he had acted under the valid writ of execution and the means of enforcement applied by him had a legal basis .

On DATE , on the applicant ’s appeal , ORG upheld the first - instance decision .

Pursuant to LAW , an order for payment , if issued on the basis of a bill of exchange , is enforceable notwithstanding that a defendant has appealed against it , and that proceedings relating to the final determination of the claim arising from the endorsement of the bill are still pending .

A district court is competent to issue an order for payment ; however , on an appeal by a defendant , the case may subsequently be referred to a regional court if , in view of the value of the claim , that court is competent to deal with the case in ordinary civil proceedings .

Under LAW seq . of LAW a debtor may lodge a complaint against any action taken by a bailiff in enforcement proceedings . He may , in particular , seek a ruling as to whether the bailiff ’s actions were correct , i.e. taken in accordance with a writ of execution , and lawful , i.e. whether the means of enforcement applied in a given case were provided by law . Such a complaint is examined by a district court under the provisions of Volume II of LAW relating to enforcement proceedings .

Under LAW seq . of LAW the court may stay civil proceedings either ex officio or at a party ’s request .

LAW ) provides :

“ CARDINAL . The court shall ex officio stay the proceedings :

( CARDINAL ) if the determination of the case depends on the outcome of other pending civil proceedings ; ”

LAW provides , in so far as relevant :

“ CARDINAL . The court shall ex officio resume the proceedings if the reason for staying them no longer exists , in particular if :

( CARDINAL ) a final decision has been given in the proceedings on whose outcome the determination of the case depends , however , if circumstances so require , the court may resume the proceedings before [ such a final decision is given ] . ”


Anatoly Kovler;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

NORP The applicant , Mr PERSON , is a NORP citizen of NORP ethnic origin , who was born in DATE and lives in PERSON . He is represented before the ORG by Mr T. Sabljar , a lawyer practising in GPE .

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

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

On DATE the applicant , who was serving in ORG at the time , was involved in a quarrel in the GPE military barracks in GPE with CARDINAL other recruits , Mr GPE and Mr GPE The quarrel was witnessed by a number of other soldiers . At some point during the quarrel the applicant said to GPE and GPE :

“ I fuck your baptised mother ! ”

It would appear that shortly afterwards corporal PERSON summoned the applicant through a duty officer to report to him concerning the incident . As the applicant refused to do so , corporal PERSON went to look for him and , after having found him , asked why he had not reported to him as instructed . The applicant replied :

“ This is not my ORG , I am not its national , I do n’t recognise [ respect ] you , your rank or ORG ! ”

The applicant repeated this statement in the presence of other officers during a subsequent conversation with the battalion commander , first lieutenant ORG Asked whether he intended to offend someone ’s religion and ethnic origin he replied :

“ Yes ! I fuck your baptised mother ! I fuck your PERSON mother ! You all originated from NORP ! ”

On DATE the GPE State Attorney ’s ORG ( GPE državno odvjetništvo u PERSON ) indicted the applicant before ORG ( PERSON ) , accusing him of the criminal offence of tarnishing the reputation of GPE , defined in LAW .

At a hearing held on DATE the applicant admitted making the above statements , expressed remorse and stated that he considered himself a national of GPE , that he recognised it as his ORG , and therefore that he also recognised its ORG .

On DATE , ORG delivered a judgment whereby it found the applicant guilty as charged and sentenced him to CARDINAL months’ imprisonment . The relevant part of that judgment reads as follows :

“ The [ value ] protected by [ proscribing ] this criminal offence is the reputation of GPE [ and ] its dignity , symbolised in the objects [ listed in the definition of the offence ] . The acts described [ therein ] , that is , exposure to ridicule , contempt and severe disdain , indicate that the law [ LAW ] requires grave denigration , malice , hatred and demonstrative disrespect for those values and symbols , such that they would lose their dignity in the eyes of citizens and the world .

The [ court ] finds it proven ... that the accused committed the criminal offence defined in LAW because he publicly exposed GPE and the NORP people to contempt and severe disdain by saying publicly , ... , in the presence of a large number of people that ... this State ( GPE ) was not his ORG , that he did not recognise it , that he was not its national , that he did not recognise ORG – which is , parenthetically , the foundation of the constitutional integrity and territorial existence of any legally organised state such as GPE – that he did not recognise the legitimacy of his superior officer in ORG ... and his rank , which [ statements ] were accompanied by [ further statements ] which offend religious and national affiliation , such as those in which he said that he fucks their baptised mothers , PERSON mothers and that they all ( NORP , NORP people ) originated from NORP . Those [ statements ] indicate severe denigration , malice , hatred and demonstrative disrespect for the values and symbols [ listed in the definition of the offence ] , whereby those values and symbols of GPE , by being treated in such a way in front of citizens ( members of ORG ) , lost their dignity .

[ When deciding on a penalty , the court takes into account ] the fact that the accused admitted committing the offence , the fact that he [ does not have a criminal record ] , his young age and correct conduct before the court , whereas , as an aggravating circumstance , it takes into account the manner in which the offence was committed , that is , a high level of perseverance and contempt in making the offending statements .

Taking into account all the above circumstances ... [ the court ] sentences the accused to CARDINAL months’ imprisonment , considering that the purpose of the punishment may , given the type and gravity of the criminal offence , be achieved only by a prison sentence . This prison sentence will , in the opinion of [ this court ] , primarily achieve the purpose of individual prevention , so that the accused will not commit this or a similar offence [ in the future ] . [ It will also meet ] the purpose of general prevention by deterring others from committing this or similar offences . ”

The applicant appealed . He argued that his statements could have been qualified as the criminal offence of insult against recruits GPE and GPE and/or a disciplinary offence of disobedience to his superior officers , rather than the criminal offence of tarnishing the reputation of GPE . Furthermore , his conviction for that criminal offence interfered with his freedom of expression because he had been entitled to express his opinion that NORP had originated from NORP who had converted to NORP .

On DATE ORG ( PERSON ) upheld the first - instance judgment in part and reversed it in part . It upheld the lower court ’s finding that the applicant was guilty of the offence in question . However , it overturned the sentence imposed and replaced it with a suspended sentence of CARDINAL months’ imprisonment with a DATE probation period . The relevant part of the judgment reads as follows :

“ The argument of the accused that ... the operative part of the contested judgment is incomprehensible and self - contradictory because the facts [ of the case ] do not correspond to the legal definition of the criminal offence [ for which he has been convicted ] is unfounded . In explaining this argument , the accused ... claims that cursing GPE and GPE ’s baptised mothers constitutes the criminal offence of insult defined in LAW , that by stating that he did not recognise ORG , ORG and its officers [ he had only ] exposed himself to ridicule and contempt and not GPE , its ORG or its officers , and that by saying that all NORP had originated from NORP he [ was merely expressing ] CARDINAL possible theory on the ethnogenesis of NORP , which [ he ] has the right to [ do ] on the basis of LAW , which , in [ its ] LAW , guarantees the freedom of thought and freedom of expression .

Contrary to the foregoing , nothing in the appeal of the accused suggests that the operative part of the contested judgment is incomprehensible or contradictory , as the appellant argues ...

The first - instance court ... did not give sufficient weight to mitigating circumstances , that is , to the fact that the accused [ does not have a criminal record ] , to his young age and correct conduct before the court , which was also demonstrated by his admission that he committed the ... offence and ... clearly expressed remorse for doing so , which suggests that the criminal offence perpetrated by the accused is a result of the impudence of youngsters . ORG ... therefore considers that in this particular case the purpose of the punishment may be achieved without imposing a prison sentence . For these reasons , the appeal of the accused has to be allowed in part [ as regards ] the penalty [ imposed ] and the first - instance judgment [ must accordingly be ] reversed ... ”

NORP The applicant subsequently lodged a constitutional complaint alleging , inter alia , a violation of his freedom of expression , guaranteed by LAW .

On DATE ORG ( Ustavni sud PERSON ) declared the applicant ’s complaint inadmissible . It found that even though the applicant relied on the relevant Articles of the LAW in his constitutional complaint , he had not substantiated his complaint by any constitutional - law arguments but had merely repeated the arguments raised in the proceedings before the ordinary courts . Therefore , ORG had been unable to examine the merits of his constitutional complaint . ORG decision was served on the applicant ’s representative on CARDINAL DATE .

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

“ ( CARDINAL ) Rights and freedoms may be restricted only by law in order to protect the rights and freedoms of others , the legal order , public morals or health .

( CARDINAL ) Every restriction of rights and freedoms should be proportionate to the nature of the necessity for the restriction in each individual case . ”

“ ( CARDINAL ) Freedom of thought and expression shall be guaranteed .

( CARDINAL ) Freedom of expression shall include in particular freedom of the press and other media , freedom of speech and public expression , and free establishment of all media institutions .

( CARDINAL ) Censorship shall be forbidden . Journalists shall have the right to freedom of reporting and access to information .

( CARDINAL ) The right to correction shall be guaranteed to anyone whose rights guaranteed by the LAW or a statute were breached by public information . ”

Article CARDINAL of LAW ( PERSON , ORG no . CARDINAL with subsequent amendments ) reads as follows :

“ Anyone who publicly exposes GPE , its flag , coat of arms or [ national ] anthem , the NORP people , or ... national ... minorities living in GPE to ridicule , contempt or severe disdain , shall be punished by imprisonment from DATE . ”


Violation of Art. 8;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

Giovanni Bonello;Ján Šikuta;Josep Casadevall;Kristaq Traja;Matti Pellonpää;Nicolas Bratza

The applicants are PERSON , an NORP citizen born in DATE , and PERSON , a GPE national born in DATE , husband and wife , and their children , PERSON , PERSON , PERSON and PERSON , GPE citizens born in DATE respectively . They were all resident in GPE .

NORP In DATE the applicants became tenants of a house owned by ORG at CARDINAL FAC . The property had been vacant for DATE and the previous tenant had been PERSON or PERSON GPE .

Meanwhile a series of armed robberies was carried out by a number of armed males : on DATE , DATE , and CARDINAL DATE . On DATE , the police arrested a certain GPE , later convicted for the robbery . They also arrested a man who arrived during the arrest . He gave his name as PERSON but subsequent investigation revealed that he was PERSON , son of PERSON GPE . He was not charged and was released . The police were tasked with investigating , and arresting , any further members of the gang and recovering the money from the robberies . The information which came into their possession indicated that ORG had often given CARDINAL FAC as his address , that saliva taken from a scarf in a car abandoned after a robbery matched that of ORG and that PERSON was still on the voters’ register as residing at that address .

On DATE Detective Constable PERSON went before a Justice of the Peace and applied on oath for a warrant to search CARDINAL FAC for cash stolen during the robberies . He swore on oath that he had reasonable cause to believe that such stolen cash was in the possession of the occupier of the property . A search warrant was issued permitting a search of the LOC for the cash .

On DATE , at TIME , the police officers gathered at police headquarters . It was intended to search CARDINAL properties . ORG and CARDINAL other officers were detailed to go to CARDINAL FAC . They were briefed that PERSON was linked to the robberies and given a photograph of him . They knew that the robberies had involved the use of firearms . They were instructed to obtain forcible entry at TIME to coincide with the other searches .

NORP The police team used a metal ram to make a hole in the door . They experienced some difficulty as a previous tenant had reinforced the door .

The noise of the battering ram awoke and frightened the applicants . The first applicant came down the stairs and was told by the police who they were and to open the door . The first applicant complied and the sergeant entered and showed his warrant card and explained that he was looking for PERSON . A cursory examination of the house took place to verify that no one save the applicants was present . The sergeant apologised to the first and second applicants and arranged for repairs to be made to the front door . The police left at TIME

The applicants brought proceedings against the Chief Constable of Merseyside Police for the tort of maliciously procuring a search warrant , unlawful entry and false imprisonment . They alleged that they had been caused terror , distress and psychiatric harm . Medical reports indicated that the applicants were suffering from varying degrees of post traumatic stress disorder .

On DATE the ORG Judge rejected the ORG claims . He made a number of findings of fact or inferences :

– that the police made enquiries prior to the search with utility companies and ORG about CARDINAL FAC and that the rough police notes of these enquiries had been destroyed or mislaid from which he drew the adverse inference that such checks revealed that PERSON was no longer living there but that the applicants were ;

– that the police considered covert surveillance of the property but decided that this was not advisable as there were sophisticated criminals living in the area who were skilled at spotting covert police operations ;

– that ORG had reasonable grounds , following his briefing , for believing that a person wanted for robbery was to be found on the LOC and that he had not been informed that the applicants were now living there .

The judge found on the facts that the police , who were investigating serious and violent offences , had not acted with reckless indifference to the lawfulness of their acts , which element was necessary for the tort of maliciously procuring a search warrant . He held that the entry was made subject to a lawful search warrant and also under the powers of LAW of ORG , which allowed entry without warrant where intending to arrest a person for an arrestable offence . He found that the method of forcible entry was justified as the police had foremost in their minds the potential danger from the use of firearms by the suspect robber and in particular that the sergeant had no cause to suspect that innocent people were the only ones on the LOC . He found that once on the LOC there was no indication that the police had physically detained the applicants or ordered them to remain in CARDINAL place . He noted that the sergeant had speedily realised the mistake , apologised and shown compassion for the applicants’ plight , in particular by not lengthening the ordeal .

He concluded :

“ ... It will be difficult for the claimants to accept that their innocent occupation of their property was devastated by the events , albeit of TIME , which occurred on DATE . Any system of justice must balance competing interests and this is a classic case of competing interests being balanced . On the one hand , the need to bring to justice violent criminals , on the other the need to try and preserve the sanctity and integrity of a law - abiding family ’s home ... but in every case of competing interests , the scales will have to come down on CARDINAL side or the other . In my judgment the scales come down in favour of the defendants and all claims are dismissed . ”

The applicants appealed , alleging , inter alia , that the judge had failed to consider properly whether the police had reasonable and probable cause to apply for a warrant to search for stolen cash at CARDINAL FAC .

On DATE ORG dismissed the applicants’ appeal . While Lord Justice PERSON found that if proper enquiries had been made and the results properly reported there would have been no reasonable or probable cause to apply for a search warrant , he held that the requirement of malice was not made out as there was no evidence of any improper motive ( incompetence or negligence did not suffice ) . He further held that the entry , being made under a warrant which was on the face of it lawful , was itself lawful and that while those responsible for sending PERSON and his team to the address had been mistaken that did not deprive them of legal protection . Lord Justice Ward commented that the shoddy detective work did not justify a finding in the police ’s favour and that the case caused him concern . However , notwithstanding his anxious consideration and sympathy for the family , he stated :

“ That an NORP ’s home is said to be his castle reveals an important public interest , but there is another public interest in the detection of crime and the bringing to justice of those who commit it . These interests are in conflict in a case like this and on the law as it stood when these events occurred , which is before the coming into force of LAW DATE , which may be said to have elevated the right to respect for one ’s home , a finding of malice on the part of the police is the proper balancing safeguard .

Upon careful reflection , I agree with my ORG that it is inevitable that malice will not be proved in this case . ”

Counsel advised as follows on the prospects of obtaining leave to appeal to ORG :

“ CARDINAL . Essentially , on the issue of malicious procurement of a search warrant and in trespass , the court has thought that prior to the introduction of LAW DATE , proof of malice is a necessary component of such a challenge and that the evidence was not there to prove it . It seems to me that this conclusion will not be displaced by ORG . I also think , on the authorities relating to LAW DATE , that there is no question of ORG suggesting that the courts below should have done anything differently in their approach to the case .

In my view , therefore , the prospects of seeking leave to appeal from ORG are poor and I do not advise that such leave be sought . ”

Section CARDINAL of the Police and Criminal Evidence Act DATE provides for entry and search without a search warrant :

“ ( CARDINAL ) Subject to the following provisions of this section ... , a constable may enter and search any LOC for the purpose–

( b ) of arresting a person for an arrestable offence ;

Police can also apply to the GPE court for a warrant . The grant of a warrant is subject to the safeguards in LAW . LAW provides , inter alia , that the constable must state the ground on which he makes the application and the enactment under which the warrant would be issued ; specify the premises to be entered and searched ; and identify in so far as practicable the articles or persons sought . Applications are made ex parte and supported by an information in writing . The constable must answer on oath any question put to him by the Justice of the FAC or judge . There is no statutory requirement for the court issuing the warrant to make findings or give reasons for issuing the warrant .


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant , PERSON , was born in DATE and lives in GPE . She was represented before the ORG by Mr PERSON Ekimdzhiev and Ms K. GPE , lawyers practising in GPE .

The applicant and her CARDINAL sisters inherited their mother ’s estate after her death in DATE . In DATE , following the adoption of LAW ( see paragraph CARDINAL below ) , the applicant sought , on behalf of all heirs , restitution of a plot of land measuring QUANTITY .

In a decision of DATE the GPE agricultural land commission found that the land , which had in the meantime been included in the urban territory of GPE , had been built upon and could not be subject to restitution . As no appeal was lodged against that decision , it became final shortly afterwards .

Nevertheless , in DATE the land commission advised the applicant to seek from the municipality and submit additional documents , whereupon it would re - examine the possibility for partial restitution “ in actual boundaries ” and , if appropriate , modify its decision of DATE . After some delays , which in their submissions to the ORG the parties imputed to each other , the applicant submitted the additional documents in DATE . However , in a letter dated DATE she was informed that the decision of DATE could no longer be modified as the twoyear statutory time - limit during which it had been possible to do so had expired .

The applicant brought an action seeking nullification of the decision of DATE . On DATE ORG dismissed the action . The applicant did not appeal against that judgment .

The parties have not informed ORG relevant developments afterwards . At the time of her latest communication to the ORG in DATE the applicant had not yet received the compensation in lieu of restitution she was entitled to under domestic law .

The first applicant , PERSON , a NORP national who was born in DATE , passed away on DATE . She was inherited by the second and third applicants , PERSON and Mr PERSON , NORP nationals who were born in DATE and DATE respectively and who stated that they wished to continue the application in her stead . On DATE Mr PERSON passed away too . On DATE his heirs , PERSON and PERSON Atanasova Taneva , informed the ORG that they wished to continue the application in his stead . The second applicant , PERSON , as well as Mr PERSON ’s heirs , live in PERSON .

In DATE and DATE the applicants requested the restoration of their title to agricultural land formerly owned by an ancestor of theirs . In CARDINAL decisions dated DATE and CARDINAL DATE the PERSON agricultural land commission found that the applicants should receive compensation in lieu of restitution for QUANTITY of land in the area around PERSON and the village of PERSON .

NORP In CARDINAL further decisions dated DATE and DATE the land commission determined the value of the compensation that the applicants were to receive .

NORP However , following appeals lodged by the applicants , by judgments dated DATE and DATE ORG found the last CARDINAL decisions to be null and void on the ground that the land commission had committed material breaches of the relevant procedural rules .

On DATE the applicants filed those judgments with the land commission and demanded that it adopt new decisions concerning their compensation .

On DATE and DATE ORG ( former land commission ) adopted new decisions concerning the applicants’ compensation . However , on an appeal by the applicants , by judgments dated DATE and DATE ORG found these decisions null and void .

On DATE ORG allotted municipally - owned land to the second and third applicants in compensation for their plots in LOC . The second applicant , PERSON , lodged an appeal , arguing that the land was not of good quality . In a judgment of DATE ORG quashed the impugned decision and remitted the case for fresh consideration , finding that the decision had been based on the previous decisions of DATE and DATE ( see paragraphs CARDINAL and CARDINAL above ) , which had already been found to be null and void .

In a letter dated DATE ORG ( now called ORG ) stated that it had not adopted any new decision concerning the applicants’ restitution claims “ because [ it ] had not received a court decision [ ... ] of DATE ” .

In its submissions on the case of DATE the Government admitted that no compensation had yet been provided to the applicants and their heirs .

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in the village of GPE . He was represented before the Court by PERSON , a lawyer practicing in GPE .

The applicant ’s grandfather , who passed away in DATE , owned agricultural land , which was expropriated DATE . The applicant is entitled to CARDINAL of his grandfather ’s inheritance .

NORP In DATE the applicant and the remaining heirs requested the restitution of CARDINAL plots of land in the village of NORP totalling QUANTITY .

In a decision of DATE the LOC agricultural land commission found that the claimants were entitled to compensation in the form of other land or compensation bonds .

In another decision of CARDINAL DATE ORG ( the former agricultural land commission ) allotted to the heirs of the applicant ’s grandfather a plot of QUANTITY as partial compensation for the CARDINAL plots . At the time of the applicant ’s latest communication to the ORG in DATE he had not yet received compensation for the remaining land .

On an unspecified date the heirs of the applicant ’s grandfather requested the restitution of other land in the village of GPE .

Apparently , the LOC land commission refused restitution and the heirs of the applicant ’s grandfather appealed to a court .

In a final judgment of CARDINAL DATE ORG held that the heirs of the applicant ’s grandfather were entitled to the restitution through a “ land redistribution plan ” of several plots of land totalling QUANTITY of land . On DATE the judgment of DATE was amended to include QUANTITY of land .

On unspecified dates the applicant and the remaining heirs of his grandfather were allotted land totalling QUANTITY . At the time of the applicant ’s latest communication to the ORG in DATE he and the remaining heirs had not yet been allotted the remainder of their land , measuring QUANTITY , or compensation in lieu thereof .

LAW ( ORG за собствеността и ползването на земеделските земи ) was enacted in DATE . Its provisions concerning the restitution of agricultural land , the possibility of compensation in lieu of restitution , and the relevant procedures have been summarised in the ORG ’s judgments in the cases of PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE and CARDINAL , DATE ) and Vasilev and ORG ( no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE ) .