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

The applicant is a farmer and lives in GPE .

On DATE the applicant requested permissions under LAW ( Wasserrechtsgesetz ) and LAW ( Landschaftsschutzgesetz ) which were necessary for putting a culvert through a drain on agricultural land owned by him .

Thereupon , on DATE ORG Bezirkshauptmannschaft ) conducted an oral hearing on the applicant ’s requests and inspected his land .

On DATE ORG refused the requested permissions . The applicant appealed .

On DATE the ORG Governor ( PERSON ) granted the requested permission under LAW .

ORG ( PERSON ) , on DATE , dismissed the applicant ’s appeal insofar as it concerned the request for permission under LAW .

On DATE the applicant filed a complaint with ORG ( Verwaltungsgerichtshof ) against ORG decision .

ORG quashed ORG decision on the ground of procedural deficiencies on DATE and remitted the case to the latter . It found that the authorities had failed to obtain detailed information concerning nature conservancy issues which were raised by the applicant ’s project .

On DATE ORG invited the applicant to comment on the additional expert opinion on nature conservancy issues of the expert A. On DATE the applicant submitted his comments , following which ORG amended the expert opinion on CARDINAL DATE .

Subsequently , on CARDINAL DATE , the applicant lodged an application with ORG against the administrative authorities’ failure to decide ( PERSON ) .

On DATE ORG ordered ORG to issue a decision within DATE . Subsequently , ORG appointed an expert on agriculture and forestry issues , who , after inspecting the applicant ’s land on DATE , delivered his opinion on DATE .

On DATE ORG requested ORG to order expert A. to submit an additional expert opinion on nature conservancy issues , which ORG delivered on DATE .

Subsequently , on DATE , ORG invited the applicant to submit comments on the expert opinions on nature conservancy issues and on agriculture and forestry issues within DATE .

On DATE the applicant submitted comments on these opinions and requested an oral hearing . He also requested that the experts be summoned to the hearing and that the land be inspected by the court . He stressed that the project would improve the productivity of the agricultural land and that therefore public interest existed in the realisation of his project as required under the applicable law . He also challenged the expert A. for bias as he had already delivered an opinion upon a request by ORG and that his independence was doubtful as he was a civil servant bound by instructions .

On DATE ORG dismissed the applicant ’s appeal against ORG decision of CARDINAL DATE concerning the request for permission under LAW . It found that the competence to decide on the merits had passed over to it as ORG had failed to decide within the DATE time - limit set .

Further it found , in view of the expert opinions , that the applicant ’s project interfered with the objects of LAW as it would spoil the character of the landscape and that there existed no public interest which would justify the measure . Moreover , the applicant had not disproved the expert ’s conclusion .

As regards the alleged bias of ORG , it found that the mere fact that the expert had already delivered an opinion at an earlier stage of the proceedings and that he was a civil servant was not in itself sufficient to raise doubts as to his independence and impartiality and that the applicant had failed to put forward any specific argument to cast doubt upon ORG ’s independence or impartiality .

Finally , the court held that it could abstain from an oral hearing and an inspection of the applicant ’s land since the proceedings had been carried out correctly and the facts , insofar as relevant in view of the applicable law , were undisputed . This decision was served on the applicant ’s counsel on CARDINAL DATE .


Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses (Convention proceedings) - claim dismissed

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

In DATE ORG annulled the decision given in DATE by ORG which had convicted the applicant ’s father and had sentenced him to imprisonment and the forfeiture of his property .

On DATE ORG ( Criminal Chamber ) awarded the applicant compensation for his father ’s imprisonment .

On DATE the applicant initiated before ORG ( PERSON w GPE ) civil proceedings against ORG . He claimed compensation for the forfeited estate and farm machinery .

On DATE , upon the trial court ’s request , the applicant called as defendant the ORG represented by ORG .

NORP In DATE the trial court requested ORG of the same court to provide the applicant ’s case - file . It received the file in DATE .

On DATE the trial court held the first hearing at which it heard the applicant . It further decided that CARDINAL witnesses would be heard by LOC .

On DATE and DATE ORG held hearings at which it heard the witnesses .

On DATE the applicant applied to the trial court to give a partial judgment relating only to the pecuniary damage sustained by his father in respect of loss of income which , according to him , was fully justified by the provided documents .

On DATE the trial court joined as a co - defendant the Minister of Finance . DATE the trial court joined as another codefendant the Minister of the ORG .

On DATE the court held hearing at which it asked for an expert opinion concerning the value of the farm machinery .

On CARDINAL DATE the expert opinion was submitted to the trial court .

On DATE the court requested another expert opinion concerning the value of the land and buildings .

On DATE the trial court held a hearing .

On DATE the ORG gave a partial judgment . It awarded the applicant ORG CARDINAL,CARDINAL as compensation for the confiscated machinery . The remaining part of the action was to be examined at DATE . The Minister of the ORG appealed against this judgment .

On DATE the ORG dismissed the Minister ’s appeal against ORG partial judgment . The Minister of the ORG lodged a cassation appeal with ORG . This part of the proceedings is pending before ORG .

The proceedings relating to the part of the applicant ’s action which was not examined by ORG in its partial judgment , are still pending before the trial court .


Violation of Article 6 - Right to a fair trial

David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Mihai Poalelungi

The applicant was born in DATE and lives in GPE .

He is the owner of a plot of land in GPE . Apparently , since DATE construction works without the required permit have been carried out by the applicant ’s neighbour , PERSON , on his plot of land which adjoins the applicant ’s property .

On DATE PERSON requested the Mayor of PERSON ( PERSON w PERSON ) to grant him a building permit for a garage to be used for repairing lorries .

NORP The Mayor of Legionowo found that the garage adjoining the applicant ’s property had already been constructed without the required building permit and on DATE ordered its demolition ( przymusowa rozbiórka ) .

On DATE PERSON lodged an appeal , submitting that he had already been granted a building permit which had subsequently been quashed .

On DATE ORG ( ORG ) upheld the challenged decision .

On DATE PERSON lodged an appeal with ORG ( PERSON ) .

On DATE ORG ordered that enforcement of ORG decision be stayed pending the examination of PERSON ’s appeal .

On DATE the applicant , as a party to the administrative proceedings , requested ORG to dismiss the appeal and to uphold the challenged decision .

On DATE ORG other conditions of the surroundings .

On DATE the Mayor of Legionowo ( Prezydent Miasta Legionowa ) imposed on PERSON an obligation to acquire a building permit by DATE .

On DATE the applicant appealed against that decision and requested the NORP Governor ( ORG ) to issue a demolition order .

On DATE the NORP Governor quashed the contested decision and remitted the case .

On DATE , following amendments to the provisions governing the powers of the administrative authorities , the President of Legionowo transferred the case to ORG ( Powiatowy Inspektor PERSON ) .

On DATE ORG gave a decision ordering demolition of the garage , finding that it had been constructed illegally and contrary to the local zoning plan ( plan zagospodarowania przestrzennego ) .

On DATE PERSON appealed against that decision .

On DATE the applicant complained to the Chief Inspector of Construction Supervision ( PERSON ) of inactivity on the part of the administration . He referred to his appeal of CARDINAL June CARDINAL lodged against the decision of ORG of CARDINAL DATE and requested the acceleration of the proceedings .

On DATE the applicant again complained to the Chief Inspector of Construction Supervision of inactivity on the part of the administration . He referred to his previous complaint and stated that he had been informed that his appeal would be examined in DATE .

On DATE the Chief Inspector of Construction Supervision , finding the applicant ’s complaint of inactivity well - founded , set a time - limit of DATE for ORG ( Wojewódzki Inspektor PERSON ) to examine the applicant ’s appeal .

On DATE ORG quashed the contested decision and remitted the case to the first - instance authority .

On DATE ORG , as the authority of first instance , ordered PERSON to carry out works to bring the construction in line with the relevant provisions .

On DATE the applicant appealed against that decision and requested a demolition order .

On DATE ORG upheld the challenged decision .

On DATE the applicant appealed against that decision to ORG ( ORG PERSON ) .

On DATE ORG quashed the challenged decision and the previous decision of ORG .

On DATE ORG again ordered PERSON to carry out construction works within DATE of the decision and to obtain a building permit .

On DATE the applicant appealed .

On DATE ORG upheld the contested decision .

On DATE the applicant lodged an appeal with ORG , submitting that the construction works had been carried out illegally and demanding that a demolition order be issued .

On DATE ORG dismissed the applicant ’s appeal .

It appears that the applicant did not lodge a cassation appeal with ORG .

“ Everyone whose legal interests or obligations are involved in [ administrative ] proceedings , or who requests that [ certain ] steps be taken by [ an administrative ] authority with regard to his legal interests or obligations , is a party to the proceedings . ”

“ Buildings or parts of buildings , which are being or have been erected in violation of the laws in force at the time of their erection , are subject to compulsory demolition ... if the administrative authority establishes that the building or relevant part :

CARDINAL ) NORP ...

CARDINAL ) NORP constitutes a danger ... to persons or property , or has an inadmissibly deleterious effect on the sanitary or functional conditions of the surroundings . ... ”

The relevant domestic law concerning inactivity on the part of administrative authorities is set out in GPE , no . CARDINAL , § § CARDINAL , DATE .

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings , in particular the applicable provisions of LAW , are stated in the ORG ’s decisions in the cases of ORG v. GPE no . CARDINAL/CARDINAL ( dec . ) , § § DATE , ECHR CARDINAL-V and NORP v. GPE no . CARDINAL ( dec . ) , ORG CARDINAL-VIII and the judgment in the case of GPE v. GPE , no . CARDINAL , § § DATE , ORG CARDINAL


The applicants , PERSON and PERSON , are NORP nationals , who were born in DATE and DATE respectively and live in GPE and GPE . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE .

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

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

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

The first applicant , a non - commissioned officer , was a member of the Menzil group , which was attached to the PERSON sect . He established contacts with officers CARDINAL and M.Y who were involved in the activities of the sect . He had antisocial character and his wife carried an NORP scarf .

The second applicant , also a non - commissioned officer , was a member of the NORP sect . He had an antisocial character and his wife carried an NORP scarf . He avoided participating in social gatherings in military LOC .

His superiors considered the applicant as an insubordinate and undisciplined soldier . He was sentenced to CARDINAL days’ confinement for being absent when called out and CARDINAL days’ confinement for being absent in a social gathering . He received a warning for being undisciplined .

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

The relevant provisions of the LAW are as follows :

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

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

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

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

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

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

Section CARDINAL ( c ) of ORG provides :

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

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

Section CARDINAL ( c ) of LAW provides :

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

Section CARDINAL ( b ) of LAW provides :

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

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

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

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

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


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

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

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

The applicant owned a cable television network in ORG . His activities in connection with the retransmission of programmes of various television channels through his network gave rise to several sets of judicial proceedings .

In the applicant ’s submission , on DATE and DATE CARDINAL sets of criminal proceedings were initiated against him , both of them in respect of suspected infringement of rights related to copyright ( LAW ( Karistusseadustik ) ) . Soon afterwards these proceedings were joined . The prosecutor modified the bill of indictment twice . The third and final bill of indictment , given to the applicant on DATE , stated that the offence which previously fell under LAW of LAW was now to be dealt with under LAW CARDINAL of the Penal Code ( unlawful retransmission for commercial purposes ) . This bill of indictment concerned retransmissions of the television channels ORG , ORG and ORG DATE and DATE .

On DATE the ORG convicted the applicant under LAW of LAW and sentenced him to CARDINAL months’ imprisonment .

The applicant appealed , arguing that his conviction had been unlawful and that several procedural violations had occurred .

By a judgment of DATE ORG upheld ORG judgment in substance but modified the sentence and fined the applicant CARDINAL kroons ( EEK , MONEY , ( ORG ) ) instead of the prison sentence given by the lower court .

The applicant filed an appeal with ORG , mainly challenging the interpretation of the criminal law by the lower courts . He did not raise the issue of the excessive length of the criminal proceedings .

On DATE ORG decided not to examine the appeal . He was informed of this decision by a letter dated DATE .

In separate criminal proceedings the ORG convicted the applicant on DATE of infringement of rights related to copyright ( unlawful retransmission of programmes of the television channels ORG and ORG ) . On DATE ORG quashed the judgment and acquitted the applicant . The applicant ’s subsequent criminal complaints against the public prosecutor and the first - instance judge were dismissed by ORG . His complaint to ORG was rejected on DATE , because it had not been drawn up by a lawyer as required by law .

Furthermore , it appears that on DATE and DATE police officers endeavoured to conduct a search of the applicant ’s residence . There was a dispute between him and the officers and he was taken to the police station . Later he was charged with refusing to comply with lawful orders given by representatives of the ORG authority . On DATE , in misdemeanour proceedings , ORG acquitted the applicant of the charge , finding that he had not committed the offence . In the meantime , on DATE the applicant made a criminal complaint against the police officers . ORG refused to open proceedings . On DATE the applicant lodged a complaint with ORG . It appears that the complaint was rejected as it had not been drawn up by a lawyer as required by law .

By a decision of DATE , in constitutional review proceedings ( case no . CARDINAL - CARDINAL - CARDINAL - CARDINAL - CARDINAL ) , ORG of ORG rejected a complaint concerning the length of criminal proceedings , noting that the complainant could raise the issue in criminal proceedings before the court hearing the criminal case . It held :

“ CARDINAL . If the court comes to the conclusion that [ the complainant ’s ] right to proceedings within a reasonable time has been violated , the court can , in the light of all the circumstances and on the basis of LAW , terminate criminal proceedings due to inappropriateness , render a judgment of acquittal or take the fact that reasonable time was exceeded into account when passing sentence . ”

The above decision of ORG is more extensively quoted in the case of PERSON v. GPE ( no . CARDINAL , § DATE , CARDINAL DATE ) .

By a judgment of DATE ORG found that the criminal proceedings in the case it was examining had not been conducted within a reasonable time and the defendant ’s sentence was reduced accordingly ( see PERSON , cited above , § CARDINAL ) .

ORG has also found in several judgments that excessive length of proceedings can serve as grounds for the termination of criminal proceedings , the defendant ’s acquittal or taking the length of proceedings into account in the sentence ( judgments of DATE ( case no . CARDINAL ) and DATE ( case no . CARDINAL ) ) .


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - finding of violation sufficient

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

All the applicants were held in various NORP remand prisons at some point in time . Their individual circumstances are detailed below .

The applicant in case no . CARDINAL , Mr PERSON , is a NORP national who was born in DATE .

On DATE Mr Fetisov was arrested on suspicion of drugtrafficking . Following a period of initial detention at the GPE town police ward ( изолятор временного содержания г. PERSON ) , on DATE he was transferred to remand prison IZ-CARDINAL/CARDINAL of GPE in GPE . On various dates DATE Mr Fetisov effected further short stays in the PERSON ward .

On DATE Mr ORG was found guilty of drug - trafficking at last instance and sentenced to CARDINAL years’ imprisonment . On CARDINAL DATE he left the remand prison for transfer to a correctional colony .

NORP In prison IZ-CARDINAL/CARDINAL , PERSON stayed TIME in cell CARDINAL , DATE in cell CARDINAL , and subsequently in cells CARDINAL ( after DATE ) and CARDINAL ( after DATE ) . The last CARDINAL cells measured QUANTITY , respectively .

The parties disagreed on the number of sleeping places and detainees . According to the ORG , cell CARDINAL had CARDINAL places , and cells CARDINAL and CARDINAL places each . Mr ORG submitted that all the cells had twice as many places .

In the ORG ’s submission , cell CARDINAL accommodated “ CARDINAL persons ” , and cells CARDINAL and CARDINAL – “ CARDINAL persons ” . Mr PERSON asserted that cell CARDINAL housed CARDINAL inmates and cell CARDINAL up to CARDINAL .

The Government produced in evidence certificates showing the number of beds and detainees , issued by the prison governor on DATE , and CARDINAL pages from the prison population register . The extracts show that on DATE an CARDINAL - person cell CARDINAL accommodated CARDINAL inmates , that on DATE a CARDINAL - person cell CARDINAL housed CARDINAL inmates , and that on DATE an CARDINAL - person cell CARDINAL held CARDINAL detainees . It does not appear that the design capacity was exceeded in any other cells within the prison on those dates .

Mr Fetisov submitted CARDINAL written statements from his co - detainees dated DATE and DATE . Each of them stated that he had been detained in cell CARDINAL together with Mr Fetisov and that the cell had measured QUANTITY , had been equipped with CARDINAL and had actually accommodated CARDINAL prisoners . There had been no ventilation and frequent interruptions of the water supply . Further to the ORG ’s request , the Government produced the cell records for those individuals from which it appears that CARDINAL of them had shared cell CARDINAL with Mr Fetisov from DATE until DATE or DATE , the seventh inmate from DATE to CARDINAL DATE , and the eighth person from DATE to CARDINAL DATE .

The applicant in case no . CARDINAL , PERSON , is a NORP national who was born in DATE .

On DATE Mr PERSON was arrested on a charge of kidnapping and placed in a temporary detention ward in PERSON . On DATE he was transferred to remand prison IZ-CARDINAL/CARDINAL of Kazan in GPE .

NORP In prison NORP , Mr PERSON stayed in cells QUANTITY ( until DATE ) , CARDINAL ( until DATE ) , DATE ( until DATE ) , CARDINAL ( until DATE ) , DATE ( until DATE ) , and DATE ( until DATE ) . On DATE he was transferred to a prison in GPE . On DATE Mr PERSON was convicted at last instance and subsequently sent to serve his sentence in a correctional colony .

The cells presented the following characteristics :

cell CARDINAL : QUANTITY and CARDINAL sleeping places ;

cells CARDINAL and CARDINAL : QUANTITY and CARDINAL sleeping places ;

cells CARDINAL and CARDINAL : QUANTITY and CARDINAL sleeping places .

The parties disagreed on the number of detainees who had been held together with Mr NORP .

The Government submitted that “ the number of detainees had not exceeded the number of beds ” , relying on the certificates issued by the prison governor on DATE . They also produced CARDINAL statements by prison warders ( CARDINAL undated and the other CARDINAL dated DATE ) , according to which Mr PERSON had had a personal sleeping place and bed linen , and CARDINAL statements by detainees , including PERSON ( all dated DATE ) who had been held in cells CARDINAL , CARDINAL , DATE , DATE , DATE , DATE and DATE during various periods of time in DATE and DATE . Finally , they enclosed extracts from the prison population register of prison ORG , covering DATE in the period from DATE . The extracts showed that during the respective periods of Mr PERSON ’s stay , cell CARDINAL housed CARDINAL persons , cell DATE or CARDINAL persons , cells CARDINAL and DATE persons , cells CARDINAL and DATE or CARDINAL persons , and that the total prison population had varied but never exceeded CARDINAL persons .

Mr NORP claimed that the Government had falsified the documents concerning the number of detainees . He prayed in aid an article , entitled The Kazan Jailhouse : the Past and the Present , published in LAW , DATE , of Crime and Punishment , a magazine of ORG . The relevant extracts read as follows :

“ Prison no . [ IZ-CARDINAL/]CARDINAL with a design capacity of CARDINAL persons currently houses CARDINAL suspects and defendants . Thus , the overcrowding is still significant ...

Renovation and construction works are in full swing . In DATE a new wing with CARDINAL places was put in operation ... The conditions are fully compatible with NORP standards : wooden floors in cells , mirrors above sinks , isolated toilets , radios , TV sets , shower stalls on each floor . This wing ... accommodates underage detainees ... ” ( page CARDINAL )

Mr NORP listed the names ( CARDINAL full names and CARDINAL first names ) of the co - detainees , including PERSON , with whom he stayed in cell DATE from CARDINAL DATE to DATE . He submitted that he had shared the bed with PERSON on the second tier of the bunk beds . Further to the ORG ’s request for information , the ORG submitted cell records in respect of CARDINAL inmates whose full names were listed . It appears that CARDINAL of them had actually shared cell CARDINAL with Mr LANGUAGE . The first names of the remaining CARDINAL detainees were insufficient for reliable identification .

The applicant in case no . ORG , Mr PERSON , is a NORP national who was born in DATE .

On DATE , CARDINAL May and DATE the Sol - Iletskiy ORG of the Orenburg Region convicted Mr PERSON of various crimes and sentenced him to imprisonment . In DATE Mr PERSON petitioned ORG for supervisory review of the judgment of CARDINAL DATE . In order to take part in the supervisory review hearing on DATE , he was taken from the correctional colony where he was serving his sentence . Before reaching his destination , Mr PERSON transited through several remand prisons .

From DATE and then from DATE Mr PERSON was accommodated in cell CARDINAL in remand prison IZ-CARDINAL/CARDINAL of PERSON . The cell measured QUANTITY and was equipped with CARDINAL sleeping places . The cell population varied from CARDINAL inmates .

DATE and then from DATE PERSON PERSON was held in cell CARDINAL in remand prison GPE of GPE . PERSON was designed for CARDINAL inmates and had QUANTITY of floor space . The parties disagreed on the number of detainees in cell CARDINAL . According to the Government , there were CARDINAL persons ; PERSON PERSON maintained that the actual number was as high as ten .

Finally , DATE and DATE , PERSON PERSON had to stay in cell CARDINAL in remand prison GPE of GPE . It was QUANTITY in size with CARDINAL sleeping places and accommodated CARDINAL detainees .

The Government submitted certificates issued by the governors of prisons in GPE , GPE and GPE on DATE and DATE listing the cells in which Mr PERSON had been held , statements by warders of the PERSON prison who asserted that PERSON PERSON had been assigned his personal sleeping place , and extracts from the registers for verification of the number of detainees in prisons CARDINAL ( PERSON ) , CARDINAL ( GPE ) and CARDINAL/CARDINAL ( PERSON ) .

The extracts from the register of prison CARDINAL cover the dates from DATE and show that cell CARDINAL had CARDINAL places and housed as many detainees . Some extracts from the register of prison CARDINAL relate to an earlier period of PERSON PERSON ’s stay in DATE and at that time cell CARDINAL had accommodated on average CARDINAL prisoners . However , the entries relating to various dates in DATE and DATE indicated that the design capacity of cell CARDINAL had not been exceeded and ranged from CARDINAL inmates . Finally , the extracts of CARDINAL DATE and DATE from the register of prison CARDINAL/CARDINAL indicated the population of cell CARDINAL as CARDINAL and QUANTITY persons , respectively .

The applicant in case no . CARDINAL/CARDINAL , Mr PERSON , is a NORP national who was born in DATE .

On DATE Mr Shakurov was taken into custody . On DATE he was placed in remand prison IZ-CARDINAL/CARDINAL of PERSON .

In prison ORG , PERSON stayed in cells CARDINAL ( TIME ) , CARDINAL ( from DATE to CARDINAL DATE and from DATE to CARDINAL DATE ) , DATE ( from CARDINAL DATE to DATE ) , DATE ( from DATE and from DATE to DATE ) , CARDINAL ( from DATE to DATE ) , and CARDINAL ( from DATE until DATE ) .

The parties disagreed on the measurements of some cells and on the number of detainees who had been held together with Mr LOC .

According to the Government , the cells presented the following characteristics :

cell CARDINAL : QUANTITY and CARDINAL sleeping places ;

cells CARDINAL , DATE , DATE and CARDINAL : QUANTITY and CARDINAL sleeping places .

The Government indicated that the design capacity of the cells had never been exceeded , relying on the certificates established by the prison governor on DATE . They also produced CARDINAL statements by prison warders ( dated DATE and DATE ) , according to which Mr Shakurov had had a personal sleeping place and bed linen , and CARDINAL statements by detainees ( dated DATE ) who had been held in cell CARDINAL since DATE . Finally , they enclosed extracts from the prison population register for prison ORG , covering DATE in the period from DATE . The extracts showed that during the respective periods of PERSON stay , cell CARDINAL housed CARDINAL persons and cells CARDINAL , DATE and DATE housed CARDINAL persons . The Government produced photographs of the cells and the shower room , from which it appears that they were in a good state of repair . In response to the ORG ’s request for information , they submitted floor plans of the facility , which confirmed the accuracy of the cell surface area as they had given it .

In Mr LOC ’s submission , cells CARDINAL and CARDINAL measured CARDINAL sq . m. He produced hand - written lists of individuals who were detained in the same cell with him . The lists contained their full names , dates of birth and their signatures . The lists show that :

from DATE , cell CARDINAL housed CARDINAL inmates ;

from DATE , cell CARDINAL housed CARDINAL inmates .

from DATE to CARDINAL DATE , cell CARDINAL housed CARDINAL inmates .

Further to the ORG ’s request , the ORG submitted cell records for the individuals named in PERSON lists . It can be seen from the records that CARDINAL or QUANTITY persons whom Mr Shakurov had listed as his co - detainees in cell CARDINAL had actually been held in other cells .

On DATE Mr Shakurov complained to the ORG that the prison authorities had opened and stamped the ORG ’s letter of DATE . He enclosed a copy of the letter bearing the prison stamp dated DATE . In his view , tampering with his correspondence amounted to a violation of his right of individual petition under LAW .

In a letter of DATE sent in response to the ORG ’s request for comments , the ORG acknowledged that the ORG ’s letter of CARDINAL DATE had been opened in prison ORG . They pointed out that an inquiry had identified the officials responsible for the opening and enclosed the order of the acting prison governor of DATE . The order shows that the letter was opened and stamped by PERSON . , the head of the correspondence unit , who thus breached the requirements of ORG circular letter of DATE in the part concerning the timely delivery of the ORG ’s letters to detainees in closed envelopes . The acting prison governor issued a disciplinary warning to ORG . , his deputy for human resources . In respect of PERSON . , it was decided “ to maintain the warning that had been previously imposed by an order of DATE ” .

NORP The applicant in case no . CARDINAL , Mr PERSON , is a NORP national who was born in DATE .

On DATE Mr PERSON was placed in remand prison IZ-CARDINAL/CARDINAL of PERSON . On DATE he was convicted at last instance and was transferred , DATE , to a correctional colony in LOC .

In prison IZ-CARDINAL/CARDINAL , Mr PERSON stayed in cell CARDINAL ( from CARDINAL DATE ) , cell CARDINAL ( from DATE ) , cell CARDINAL ( from DATE to CARDINAL DATE ) , cell CARDINAL ( from CARDINAL DATE to CARDINAL DATE ) , cell CARDINAL ( from DATE to DATE ) , cell CARDINAL ( from DATE ) , and cell CARDINAL ( from DATE to CARDINAL DATE ) .

cells CARDINAL , CARDINAL and CARDINAL : QUANTITY and CARDINAL sleeping places ;

cells CARDINAL , CARDINAL and CARDINAL : QUANTITY and CARDINAL sleeping places .

The applicant gave the same number of sleeping places but claimed that the cells had been much smaller . Thus , in his submission , cell CARDINAL measured QUANTITY . m , cell CARDINAL – QUANTITY m , and cells CARDINAL , CARDINAL and CARDINAL – approximately QUANTITY m.

The parties agreed that the number of detainees did not exceed the number of sleeping places . In support of their submissions , the Government produced certificates issued by the prison governor on DATE . Subsequently , the ORG also submitted floor plans of the facility , which corroborated their indications of the cell surface areas .

The applicant in case no . ORG , Mr PERSON FAC , is a stateless person who was born in DATE in the GPE SSR .

On DATE Mr Balammedov was taken into custody and placed in remand prison GPE . On DATE he was convicted at last instance and subsequently transferred to a correctional colony in FAC .

In prison GPE , PERSON stayed in cell CARDINAL ( from CARDINAL DATE to CARDINAL DATE ) , cell CARDINAL ( from CARDINAL DATE ) , cell CARDINAL ( from DATE to DATE ) , cell CARDINAL ( from DATE to DATE ) , and cell CARDINAL ( from DATE to CARDINAL DATE ) .

According to the Government , the cells presented the following characteristics :

cells CARDINAL and CARDINAL : QUANTITY and CARDINAL sleeping places ;

cell CARDINAL : QUANTITY and CARDINAL sleeping places ;

cells CARDINAL and CARDINAL : QUANTITY and CARDINAL sleeping places .

Mr PERSON claimed that cell CARDINAL actually measured CARDINAL by QUANTITY , that is QUANTITY , and accommodated CARDINAL inmates who had slept in turns . He pointed out that , judging from the number of detainees in the prison ( CARDINAL ) and the sanitary norm of QUANTITY per inmate , the total prison surface should have been CARDINAL CARDINAL,CARDINAL square metres ; however , the cleaning contracts submitted by the Government referred to a much smaller area of QUANTITY .

Further to the ORG ’s request for information , the Government produced floor plans of the facility , which corroborated their indications of the cell surface .

The Government submitted certificates issued by the prison governor on DATE , and undated statements by prison warders who stated that Mr ORG had at all times had a personal sleeping place and that the cell population had been as follows :

cell CARDINAL housed CARDINAL to CARDINAL persons ;

cell DATE to CARDINAL persons ;

cell DATE to CARDINAL persons ;

cell CARDINAL – CARDINAL to CARDINAL persons .

The Government also produced CARDINAL pages from the prison population register for prison IZ-CARDINAL/CARDINAL , covering dates in DATE , DATE , DATE and DATE . The extracts indicated that cells CARDINAL and CARDINAL accommodated CARDINAL inmates . Mr ORG replied that the extracts covered the dates when the overcrowding had been the least severe .

Cells CARDINAL/CARDINAL and CARDINAL featured separate toilet rooms equipped with CARDINAL and CARDINAL pans and CARDINAL sinks , respectively . In cells CARDINAL , CARDINAL and CARDINAL the toilet pan was separated from the living area by a brick partition QUANTITY high .

The exercise yards of the first wing ( cells CARDINAL and CARDINAL ) measured CARDINAL sq . m and were equipped with benches , pavilions and sheds . Those in the third wing ( cell CARDINAL ) ranged from CARDINAL sq . m in size , and those in the fourth wing ( cells CARDINAL and CARDINAL ) from CARDINAL to QUANTITY m.

Personal dignity is protected by the ORG and may not be undermined for any reason ( LAW ) .

No one may be subject to torture , violence or any other cruel or degrading treatment or punishment ( LAW ) .

Detention on remand must be based on the principles of lawfulness , fairness , presumption of innocence , equality before the law , humanism , respect for human dignity and must be carried out in accordance with LAW , international legal principles and norms and international treaties , to which GPE is a party , and must not involve torture or other actions that purport to cause physical or moral suffering to the suspect or defendant ( section CARDINAL ) .

Detainees should be kept in conditions which satisfy health and hygiene requirements . They should be provided with an individual sleeping place and given bedding , tableware and toiletries . Each inmate should dispose of QUANTITY of personal space in his or her cell ( section CARDINAL ) .

If certain actions impairing an individual ’s personal non - property rights or encroaching on other intangible assets have caused him or her nonpecuniary damage ( physical or mental suffering ) , the court may impose on the perpetrator an obligation to pay pecuniary compensation for that damage . The amount of compensation is determined by reference to the gravity of the perpetrator ’s fault and other significant circumstances . The court also takes into account the extent of physical or mental suffering in relation to the victim ’s individual characteristics ( Article CARDINAL ) .

State and municipal bodies and officials shall be liable for damage caused to a citizen by their unlawful actions or omissions ( Article CARDINAL ) . Irrespective of any fault by ORG officials , the ORG or regional treasury are liable for damage sustained by a citizen on account of ( i ) unlawful criminal conviction or prosecution ; ( ii ) unlawful application of a preventive measure , and ( iii ) unlawful administrative punishment ( Article ORG ) .

Compensation for non - pecuniary damage is effected in accordance with LAW and is unrelated to any award in respect of pecuniary damage ( LAW . Irrespective of the tortfeasor ’s fault , non - pecuniary damage shall be compensated for if the damage was caused ( i ) by a hazardous device ; ( ii ) in the event of unlawful conviction or prosecution or unlawful application of a preventive measure or unlawful administrative punishment , and ( iii ) through dissemination of information which was damaging to honour , dignity or reputation ( LAW ) .

LAW sets out the procedure for a judicial examination of complaints about decisions , acts or omissions of the ORG and municipal authorities and officials . Pursuant to Ruling no . CARDINAL of CARDINAL DATE by ORG of GPE , complaints by suspects , defendants and convicts about inappropriate conditions of detention must be examined in accordance with the provisions of LAW ( point CARDINAL ) .

A citizen may lodge a complaint about an act or decision by any ORG authority which he believes has breached his rights or freedoms , either with a court of general jurisdiction or by sending it to the directly higher official or authority ( LAW . The complaint may concern any decision , act or omission which has violated rights or freedoms , has impeded the exercise of rights or freedoms , or has imposed a duty or liability on the citizen ( LAW ) .

If the court finds the complaint justified , it issues a decision requiring the authority or official to fully remedy the breach of the citizen ’s rights ( LAW ) . The court determines the time - limit for remedying the violation with regard to the nature of the complaint and the efforts that need to be deployed to remedy the violation in full ( point CARDINAL of Ruling no . CARDINAL ) .

The Standard Minimum Rules for the Treatment of Prisoners , adopted by ORG on ORG and the Treatment of Offenders , held at GPE in DATE , and approved by ORG by its resolution CARDINAL C ( XXIV ) of DATE and CARDINAL ( LXII ) of CARDINAL DATE , provide , in particular , as follows :

“ CARDINAL . All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health , due regard being paid to climatic conditions and particularly to cubic content of air , minimum floor space , lighting , heating and ventilation ...

In all places where prisoners are required to live or work ,

( a ) The windows shall be large enough to enable the prisoners to read or work by natural light , and shall be so constructed that they can allow the entrance of fresh air whether or not there is artificial ventilation ;

( b ) PERSON light shall be provided sufficient for the prisoners to read or work without injury to eyesight .

The sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner .

Adequate bathing and shower installations shall be provided so that every prisoner may be enabled and required to have a bath or shower , at a temperature suitable to the climate , as frequently as necessary for general hygiene according to DATE and geographical region , but at least once a week in a temperate climate .

All pans of an institution regularly used by prisoners shall be properly maintained and kept scrupulously clean at all time .

Prisoners shall be required to keep their persons clean , and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness ...

Every prisoner shall , in accordance with local or national standards , be provided with a separate bed , and with separate and sufficient bedding which shall be clean when issued , kept in good order and changed often enough to ensure its cleanliness ... ”

On DATE ORG Recommendation Rec(CARDINAL)CARDINAL to member GPE on ORG , which replaced Recommendation No . R ( CARDINAL ) CARDINAL on ORG accounting for the developments which had occurred in penal policy , sentencing practice and the overall management of prisons in LOC . The amended NORP Prison Rules lay down the following guidelines :

“ CARDINAL . All persons deprived of their liberty shall be treated with respect for their human rights .

Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody .

Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed .

Prison conditions that infringe ORG human rights are not justified by lack of resources .

ORG apply to persons who have been remanded in custody by a judicial authority or who have been deprived of their liberty following conviction . ”

“ CARDINAL . The accommodation provided for prisoners , and in particular all sleeping accommodation , shall respect human dignity and , as far as possible , privacy , and meet the requirements of health and hygiene , due regard being paid to climatic conditions and especially to floor space , cubic content of air , lighting , heating and ventilation .

In all buildings where prisoners are required to live , work or congregate :

a. the windows shall be large enough to enable the prisoners to read or work by natural light in normal conditions and shall allow the entrance of fresh air except where there is an adequate air conditioning system ;

b. artificial light shall satisfy recognised technical standards ; and

c. there shall be an alarm system that enables prisoners to contact the staff without delay .

National law shall provide mechanisms for ensuring that these minimum requirements are not breached by the overcrowding of prisons .

Prisoners shall normally be accommodated during TIME in individual cells except where it is preferable for them to share sleeping accommodation .

Prisoners shall have ready access to sanitary facilities that are hygienic and respect privacy .

Adequate facilities shall be provided so that every prisoner may have a bath or shower , at a temperature suitable to the climate , if possible DATE but at least twice DATE ( or more frequently if necessary ) in the interest of general hygiene .

Every prisoner shall be provided with the opportunity of TIME of exercise every day in the open air , if the weather permits .

When the weather is inclement alternative arrangements shall be made to allow prisoners to exercise . ”

The relevant extracts from the General Reports prepared by ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) read as follows :

“ CARDINAL . Overcrowding is an issue of direct relevance to the ORG ’s mandate . All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate ; the overall quality of life in the establishment will be lowered , perhaps significantly . Moreover , the level of overcrowding in a prison , or in a particular part of it , might be such as to be in itself inhuman or degrading from a physical standpoint ...

Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment ...

The ORG would add that it is particularly concerned when it finds a combination of overcrowding , poor regime activities and inadequate access to toilet / washing facilities in the same establishment . The cumulative effect of such conditions can prove extremely detrimental to prisoners ... ”

“ CARDINAL . As the ORG pointed out in DATE ORG , prison overcrowding is an issue of direct relevance to the ORG ’s mandate ( cf . ORG ( CARDINAL ) CARDINAL , paragraph CARDINAL ) . An overcrowded prison entails cramped and unhygienic accommodation ; a constant lack of privacy ( even when performing such basic tasks as using a sanitary facility ) ; reduced out - of - cell activities , due to demand outstripping the staff and facilities available ; overburdened health - care services ; increased tension and hence more violence between prisoners and between prisoners and staff . This list is far from exhaustive .

The ORG has been led to conclude on CARDINAL occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention ... ”

“ CARDINAL . The phenomenon of prison overcrowding continues to blight penitentiary systems across LOC and seriously undermines attempts to improve conditions of detention . The negative effects of prison overcrowding have already been highlighted in previous ORG ...

In a number of countries visited by the ORG , particularly in central and eastern LOC , inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a DATE basis , such as sleeping and living areas as well as sanitary facilities . The ORG has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when , as is frequently the case , the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions ... Large - capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives ... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level ; further , in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions .

The ORG frequently encounters devices , such as metal shutters , slats , or plates fitted to cell windows , which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation . They are a particularly common feature of establishments holding pre - trial prisoners . The ORG fully accepts that specific security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners ... [ E]ven when such measures are required , they should never involve depriving the prisoners concerned of natural light and fresh air . The latter are basic elements of life which every prisoner is entitled to enjoy ... ”


Violation of Art. 10;Not necessary to examine Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

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

On DATE ORG amended LAW to allow ORG to postpone by DATE the levying of taxes on fuel imported into GPE . In TIME of the same day , the leader of the communist majority in ORG ( Mr ORG ) met with the deputy Speaker of ORG ( Mr ORG ) for a meal in the restaurant of a luxury hotel in PERSON . According to the applicant newspaper , sources which preferred to remain anonymous confirmed that the meal had been paid for by “ L. ” , a major importer of fuel into GPE .

On DATE the applicant newspaper published an article entitled “ On L. 's money , communists ORG and ORG had a big - time party ( chiolhan ) at ' PERSON ” . The article , which included pictures of the CARDINAL MPs next to the text , informed readers about the changes to LAW and about the profits which those changes would bring to a few big fuel importers who had links with ORG , thus allowing unfair competition . The article claimed that the postponement of tax payments constituted a form of credit by the ORG without interest or guarantees and rejected the explanation for the amendment given by a member of ORG .

CARDINAL paragraph in the article read :

“ One needs to note that , in TIME of the same day , at the ' PERSON ( ... ) hotel , the communists ORG and ORG , putting aside all proletarian decency [ pudoare ] , had a big - time party on the money of the sharks from ' L. ' . Could this party be a simple coincidence ? We do not know . ”

The article went on to expose the legislative plans of ORG and the resulting benefits to big fuel importers at the expense of ordinary workers .

On DATE Mr Stepaniuc , the leader of the NORP parliamentary faction which had , at the time , CARDINAL votes out of a total of CARDINAL in ORG , lodged an action against the applicant newspaper , identifying the paragraph cited above as defamatory . He did not pay any court fee when lodging his complaint , nor did he appear in court at any stage of the proceedings or delegate any person to represent him .

On DATE Judge PERSON , the then President of ORG , found that the applicant had essentially stated that Mr ORG “ had voted for laws in the interest of some private companies and then had a party on their money ” . It denounced the use of pure rumour as a basis for journalism and found that the applicant newspaper had acted in bad faith . The court took note of the “ vehement attack ” on Mr ORG , the large readership of the newspaper and the “ degree of moral and psychological suffering ” caused . In addition , the court found that PERSON ORG 's position as a member of ORG and leader of a parliamentary faction “ increased the degree of moral damage ” which led to the imposition of maximum liability .

The court accepted Mr ORG 's claim and ordered the applicant newspaper , pursuant to ORG and CARDINAL § QUANTITY of LAW , to publish an apology and to pay the plaintiff the maximum damages allowed by law and the court fees ( a total of CARDINAL NORP lei ( MDL ) , equal to MONEY ( ORG ) at the time ) . According to the applicant newspaper , the court had conducted CARDINAL hearing which lasted TIME and no questions had been put to the applicant newspaper .

In its appeal the applicant newspaper submitted that the impugned phrases had amounted to value - judgments which could not be proved and that these opinions had been based on facts , namely the party which had taken place at the hotel in question on the date mentioned in the article , which was not disputed , and the modifications to the law adopted by ORG . Moreover , in view of the length of time that had passed after the publication of the article , it had been impossible for the applicant to prove that the persons had been seen at the hotel restaurant , where they had had a party , or verify the source of payment for it . The applicant newspaper also argued that Judge PERSON lacked independence and impartiality because he was a friend of Mr ORG and had been appointed President of ORG by the ORG parliamentary group . The majority of the defamation cases between PERSON and Mr Stepaniuc had been examined by him personally and his decisions were stereotyped and did not give sufficient reasons . In other defamation cases between LOC and representatives of the Government , Judge PERSON had always ruled in favour of the latter and had awarded them the maximum amount provided for by law .

On DATE the ORG found that the applicant newspaper had missed the time - limit for lodging its appeal against that judgment but went on to examine the substance of the case . It upheld the lower court 's judgment , finding that its decision had been lawful and reasoned . The court did not respond to the applicant 's complaint about the alleged lack of impartiality of Judge PERSON The hearing lasted DATE minutes and the applicant newspaper was not asked any questions .

In an appeal in cassation the applicant newspaper relied on LAW and on the distinction which the lower courts had failed to make between value - judgments and factual statements . Moreover , the courts had never heard evidence from the plaintiff , and had not taken into account his public - figure status , which should have limited the scope of interference with the applicant 's freedom of expression , or the special role played by the press in a democratic society . Finally , the lower courts had failed to respond to most of the points raised by the applicant .

On DATE ORG upheld the judgments of the lower courts , finding that they had been lawful and corresponded to the evidence in the case . No comment was made about Judge PERSON 's alleged lack of impartiality .

The relevant provisions of the domestic law have been set out in this ORG 's judgment in the case of GPE v. GPE ( no . CARDINAL , § § DATE , DATE ) .


Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings

The applicants are NORP citizens born in DATE and DATE , respectively . The first applicant lives in GPE , the second in GPE in GPE .

In DATE the applicants announced their intention to construct a subterranean garage in GPE . The neighbours complained , arguing that certain prescribed boundary distances between the real properties had not been observed . Their objection was dismissed by ORG ( Bezirksgericht ) on DATE . The court awarded the applicants , as defendants , MONEY ( CHF ) for procedural expenses ( GPE ) , as the plaintiffs , their neighbours , could themselves have verified that the distances in question had been respected . The court costs of CHF MONEY were imposed on the plaintiffs .

The neighbours filed an appeal ( GPE ) which ORG ( PERSON ) of ORG dismissed on DATE . In the operative part of its decision , the court took formal note of the applicants ' commitment that no changes would be made within QUANTITY from the border separating the real properties . The court also ordered the applicants to pay the plaintiffs CHF QUANTITY as procedural expenses for the first - instance proceedings and CARDINAL for the appeal court proceedings , and imposed on the applicants the first - instance court costs as well as appeal court costs amounting to CHF MONEY . The court found that the applicants ' plans had been incomplete and even incorrect and the terms employed had been vague , thus prompting the plaintiffs to uphold their objection . The uncertainty brought about by the applicants ' conduct contrary to good faith had actually provoked the procedures before the CARDINAL instances .

NORP On DATE the applicants filed a public law appeal ( staatsrechtliche Beschwerde ) with ORG ( PERSON ) , complaining , first , about the imposition of costs , which in their view was disproportionate as ORG had dismissed the plaintiffs ' claims . There had been no obligation to submit plans , and neither the first nor the second instance had considered it necessary to ask for further plans . It was unclear to what extent the terms used had been imprecise , and indeed , the objections raised by the plaintiffs had a priori been completely unfounded . On the whole it appeared disproportionate that , for a matter of a value of CHF MONEY , the applicants were now asked to pay CHF MONEY for completely unnecessary proceedings . Second , the applicants complained that ORG had in its judgment incorrectly taken note of their commitment which in fact had not been requested by the parties in the proceedings .

ORG transmitted the applicants ' public law appeal for observations to both ORG and the plaintiffs .

ORG sent its reply , running to CARDINAL pages , together with the case - file , to ORG on DATE , requesting the latter to dismiss the applicants ' public law appeal . In its submissions it explained why the applicants ' plans had been vague and that precise early information would have been necessary . The court continued that it was “ quite typical for the ( applicants ' ) mentality ” ( geradezu QUANTITY für die PERSON ) that they had submitted sketches of plans only after objections had been filed , since they knew that there were tensions with their neighbours and that the latter would object . Other remarks of the applicants were misplaced ( deplaziert ) . ORG furthermore submitted that it had been competent to formulate conditions in its judgment , in particular as to changes in the border area between the properties .

The plaintiffs filed their observations of CARDINAL pages on DATE . Therein , they commented on the judgment of ORG , and they requested ORG to dismiss the applicants ' public law appeal .

ORG transmitted the various observations to the applicants ' lawyer who , on DATE , replied :

“ In the above - mentioned case I thank you for serving the observations . I should like to ask you to let me have the case - file for consultation ( which in the cantonal proceedings could not be fully undertaken , as the case - file presented by ORG was incomplete ) .

In its written ' reply ' ( of CARDINAL pages ) , the lower court adds to its decision numerous new grounds as well as amendments to its reasoning . They are hardly objective and aim at twisting the facts in a manner not to be expected from a court . Pursuant to PERSON § CARDINAL of ORG and LAW , the applicants request the opportunity to comment on the ' reply ' . ”

By letter of CARDINAL DATE ORG replied :

“ You are objecting against inadmissible statements in the observations of ORG and you request transmittal of the case - file .

At the present stage of the proceedings , the parties can no longer exercise any rights . Therefore , and as we need the case - file for our decision , we can not comply with your request for consultation . Inadmissible statements of ORG will be disregarded ex officio . ”

On DATE ORG dismissed the applicants ' public law appeal , the decision being served on DATE . The judgment noted at the outset that both ORG and the opposing party had requested dismissal of the applicants ' public law appeal . In its judgment ORG then declared inadmissible as being insufficiently substantiated the complaint that ORG had incorrectly taken formal note of the applicants ' commitment that they would not make changes within QUANTITY from the border line separating the CARDINAL properties . In respect of the complaints about the imposition of costs , ORG noted that the applicants , by expressing the wish to construct the garage , had in fact unintentionally obliged their neighbours to institute proceedings and to defend their property rights , compliance with which had at the outset not sufficiently transpired from the plans . ORG was entitled to combine the dismissal of the neighbours ' objection with a clause that no changes could be made in the border area between the properties . On the whole , a person wishing to construct became responsible for provoking litigation if he did not from the beginning establish clearly that other persons ' rights would not be affected .

Section CARDINAL of LAW ( Organisationsgesetz ) envisages the following procedure after a public law appeal has been filed :

“ Exchange of Statements

NORP If the court orders an exchange of statements , it transmits the appeal to both the authority from which the contested decision or act emanated and to the opposing party as well as any other persons involved . They are given an adequate time - limit to submit the case - file and to file their replies .

NORP If the reasons for the decision transpire only from the authority 's observations , the appellant may be granted a time - limit to complement his appeal statement .

NORP Only exceptionally will there be a further exchange of statements . ”