LONDON ARMOURY LIMITED AND A.B. HARVEY & SON LIMITED AND 156 OTHERS, A.G. WISE AND 5 OTHERS, POWDERKEG LIMITED AND 2 OTHERS, REEPHAM MOORE RIFLE & PISTOL RANGE, WARWICK RIFLE AND PISTOL CLUB AND 42 OTHERS v. THE UNITED KINGDOM

The facts of the case , as submitted by the parties , may be summarised as follows . The applicants are all businesses connected with firearms industry . They are represented before the ORG by PERSON , ORG , GPE .

In the case of application no . CARDINAL , the applicant company ( ORG ) was established DATE . It was owned and operated by a sole shareholder . The applicant company was in the business of retailing firearms : PERCENT of its turnover derived from handguns and related products , PERCENT from rifles and PERCENT from airguns and sundry items .

The consequences of the DATE LAW legislation - LAW and the Firearms ( Amendment ) ( No . CARDINAL ) Act DATE ( “ LAW , see below ) - are that the applicant company is unable to derive handgun - related income from its business , and that the value of the goodwill and assets of that business has depreciated . DATE and DATE , the applicant company 's turnover dropped by PERCENT . In DATE the company ceased trading .

The remaining applicants rely on application no . TIME ( ORG ) , and have made no submissions of fact in relation to their claims .

The applicants have received no compensation for the reduction in value of their goodwill and assets .

By DATE , MONEY had been paid to CARDINAL dealers under the compensation schemes , of a total of MONEY which had been paid to individuals , dealers and others . The ORG estimated the total costs which would be involved in paying compensation under the schemes to be MONEY .

B. Domestic law and practice

The Firearms Act DATE has been periodically amended since it was passed , and forms the basis of the current system of the control of firearms in GPE . LAW of DATE prohibits the possession , purchase , acquisition , manufacture , sale or transfer of the firearms there specified . LAW DATE ( “ LAW ” ) added large - calibre handguns to the class of prohibited firearms in section CARDINAL of the DATE Act .

Section CARDINAL of the Act of DATE , as amended by LAW , provided :

“ ( CARDINAL ) A person commits an offence if , without the authority of ORG , he has in his possession , or purchases or acquires , or manufactures , sells or transfers -

( aba ) any firearm which has a barrel length of QUANTITY in length or is QUANTITY in length overall , other than an air weapon , a small - calibre pistol , a muzzle - loading gun or a firearm designed as signalling apparatus . ”

The Firearms ( Amendment ) ( No . CARDINAL ) Act DATE ( “ LAW ” ; together with LAW , “ the CARDINAL Amendment Acts ” ) extended the scope of the prohibition in section CARDINAL to small - calibre pistols by declaring ( in section CARDINAL ) that the words “ a small - calibre pistol ” in section CARDINAL ) of LAW as amended by LAW should cease to have effect .

LAW provides as follows , so far as material :

“ CARDINAL Surrender of prohibited small firearms and munitions

( CARDINAL ) The Secretary of ORG may make such arrangements as he thinks fit to secure the orderly surrender at designated police stations of firearms or ammunition the possession of which will become or has become unlawful by virtue of CARDINAL or CARDINAL above .

CARDINAL Payments in respect of prohibited small firearms and ammunition

( CARDINAL ) The Secretary of ORG shall , in accordance with a scheme made by him , make payments in respect of firearms and ammunition surrendered at designated police stations in accordance with the arrangements made by him under section CARDINAL above .

( CARDINAL ) A scheme under subsection ( CARDINAL ) above shall provide only for the making of payments to persons making claims for such payments in respect of firearms or ammunition -

( a ) which they had , and were entitled to have in their possession on or immediately before DATE by virtue of firearms certificates held by them or by virtue of their being registered firearms dealers ; or

( b ) which on or before that date they had contracted to acquire and were entitled to have in their possession after that date by virtue of such certificates held by them or by virtue of their being registered firearms dealers ,

and their possession of which will become , or has become , unlawful by virtue of section CARDINAL(CARDINAL ) or CARDINAL above .

CARDINAL Payments in respect of ancillary equipment

( CARDINAL ) The Secretary of ORG shall , in accordance with any scheme which may be made by him , make payments in respect of ancillary equipment of any description specified in the scheme .

( CARDINAL ) For the purposes of subsection ( CARDINAL ) above , ‘ ancillary equipment’ means equipment , other than prohibited ammunition , which-

( a ) is designed or adapted for use in connection with firearms prohibited by virtue of section CARDINAL(CARDINAL ) above ; and

( b ) has no practicable use in connection with any firearm which is not a prohibited weapon .

( CARDINAL ) A scheme under subsection ( CARDINAL ) above shall provide only for the making of payments to persons making claims for such payments in respect of ancillary equipment-

( a ) which they had in their possession on DATE ; or

( b ) which they had in their possession after DATE , having purchased it by virtue of a contract entered into before that date .

CARDINAL Parliamentary control of compensation schemes

( CARDINAL ) Before making a compensation scheme the Secretary of ORG shall lay a draft of it before ORG .

( CARDINAL ) The Secretary of ORG shall not make the scheme unless the draft has been approved by resolution of each ORG .

( CARDINAL ) This section applies to any alteration to the scheme as it applies to a compensation scheme .

( CARDINAL ) In this section ‘ compensation scheme’ means a scheme under LAW ... above . ”

The Firearms ( Amendment ) Act CARDINAL Compensation Scheme ( “ the First Scheme ” ) was laid in draft before ORG and approved by resolution of both ORG . It was made on DATE . The First Scheme provided compensation for the large - calibre handguns themselves , for prohibited expanding ammunition and for certain ancillary equipment . There were CARDINAL options for claiming compensation : Option A , a flat rate payment for individual items , Option B , a payment for an individual item at the price in the list of values annexed to the First Scheme and Option C , a payment based on the market value of an individual item at or immediately before DATE ( the date of the announcement by the Government of their response to , and legislative intention following , ORG ) .

Under Option A , a payment of £ MONEY could be claimed for each large - calibre handgun . Under Option B , a payment could be claimed which was based on average retail values on DATE , reduced by PERCENT to reflect normal depreciation in value . Under Option C , dealers were entitled to claim the “ full market value ” of the large - calibre handguns and ancillary equipment which they held in stock . The full market value was to be calculated on the basis of the cost to the dealer of the item plus PERCENT .

By section CARDINAL of LAW , the provisions of sections CARDINAL of LAW were applied to small - calibre pistols . LAW ) ( No . CARDINAL ) Act CARDINAL Compensation Scheme ( “ the Second Scheme ” ) was made in DATE , after having been laid in draft before both ORG and approved by resolution of each ORG . The Second Scheme applied in relation to small - calibre pistols held on or immediately before DATE . The date for the calculation of full market value for the purposes of Option C remained DATE . The Second Scheme made provision for compensation in respect of small - calibre pistols , on materially the same terms as provided for in the First Scheme in respect of large - calibre handguns .


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

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

In DATE the applicant instituted proceedings in LOC of Mariupol against the local social welfare department , challenging the refusal of the latter to increase her pension in accordance with LAW and the Law on Pensions .

On DATE the court found against the applicant . In its decision the court noted in particular that :

“ It is true that LAW mentions that the pension should not be lower than the minimum living standard . In this particular case , however , it is not a provision of the LAW , but a specific legal norm on a pension matter which applies . ”

The court further concluded that the applicant ’s pension was in accordance with the PERSON of GPE on Increasing the Minimum Amount of Pensions and decided against the applicant .

The applicant appealed against this decision , claiming that the first instance court misapplied and misinterpreted the relevant pension law and LAW .

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

The applicant applied for leave to make a cassation appeal .

On DATE the panel of CARDINAL judges of ORG rejected the applicant ’s request for leave to make a cassation appeal .

The relevant provisions read as follows :

“ ... The norms of LAW are norms of direct effect . Appeals to the court in defence of the constitutional rights and freedoms of the individual and citizen directly on the grounds of LAW are guaranteed . ”

“ ... Pensions and other types of social payments and assistance that are the principal sources of subsistence , shall ensure a standard of living not lower than the minimum living standard ( прожитковий мінімум ) established by law . ”

“ ORG of GPE is the sole body of constitutional jurisdiction in GPE .

ORG decides on issues of conformity of laws and other legal acts with LAW , and provides the official interpretation of LAW and the laws of GPE . ”

“ The jurisdiction of ORG encompasses :

CARDINAL ) NORP deciding on issues of conformity with LAW ( the constitutionality ) of the following :

- laws and other legal acts of the Verkhovna Rada of GPE ;

- acts of the President of GPE ;

- acts of ORG of GPE ;

- legal acts of the Verkhovna Rada of GPE .

These issues are considered on the appeals of : the President of GPE ; CARDINAL ORG of GPE ; ORG of GPE ; LAW the Verkhovna Rada of GPE ; the Verkhovna Rada of GPE ;

CARDINAL ) NORP the official interpretation of LAW and the laws of GPE ;

On issues envisaged by this LAW , ORG of GPE adopts decisions that are mandatory for execution throughout the territory of GPE , that are final and shall not be appealed . ”

LAW provided that courts were to decide a case on the basis of the LAW , other legislative acts or the international treaties of GPE , under the procedure provided for in the Code .

By LAW a court decision was to set out the facts of the case established by the court , evidence on which the court ’s conclusion was based , and reasons for admitting or rejecting this or that argument , as well as the laws applied by the court .

Article CARDINAL of this PERSON provides as relevant :

“ Old age pensions shall be established in the amount of PERCENT of the salary , but not less than the minimum amount of pensions ( мінімальний розмір пенсії ) ...

The minimum amount of an old age pension shall be established in relation to the minimum consumer budget ( мінімальний споживчий бюджет ) . In case of economic crisis and a fall in production , the minimum amount of pensions shall be established in an amount which is not lower than the basic standard of income ( межа малозабезпеченості ) . ...

The maximum amount of an old age pension shall not exceed ... CARDINAL times the minimum amount of pensions ... ”

This PERSON set the minimum amount of pensions ( мінімальний розмір пенсії ) at UAH CARDINAL.CARDINAL .

The relevant extracts of the PERSON read as follows :

“ This PERSON in accordance with LAW defines the minimum living standard , gives legal basis for its fixation , approval and taking into account in realisation by the State of the constitutional guarantee to sufficient living standard for citizens ...

LAW Use of the minimum living standard

The minimum living standard shall be used for :

- general assessment of the standard of living in GPE , which is a basis for realisation of social policy and development of some State social programmes ;

- fixing the amounts of the minimum wage and minimum old age pension , determination of amounts of social welfare , assistance to families with children , unemployment benefit , as well as stipends and other social payments in accordance with requirements of LAW and laws of GPE ... ”

“ LAW . The minimum living standard for DATE per person shall be fixed at the amount of CARDINAL hryvnas per month ...

Article CARDINAL . The minimum living standard for DATE shall be used for general assessment of the standard of living in GPE . ”

The relevant parts of the ORG read as follows :

“ CARDINAL . NORP Since the Constitution of Ukraine , as stipulated in its LAW , has the highest legal force , and its norms are norms of direct effect , the courts , in consideration of concrete cases , shall assess the content of any law or any other legal act for its compliance with LAW and , where necessary , shall apply the LAW as an act of direct effect . The court decisions shall be based on LAW and the current legislation which does not contradict it .

In case of doubt as to the compliance with LAW of a particular law , as applied or applicable in a case , the court , upon the motion of the parties to the proceedings or of its own motion , shall suspend consideration of the case and apply , by way of a reasoned decision ( ruling ) , to ORG of GPE which , under LAW , may raise before ORG the issue of compliance of laws and other legal acts with LAW . Such decisions can be taken by the first instance court , court of cassation or the court which considers a supervisory review ... ”

The case concerned budgetary restrictions proposed in LAW with respect to privileges , compensations and guarantees foreseen by different legislative acts . The relevant parts of the decision read as follows :

“ ORG of GPE ...

... CARDINAL . ... considered that , since the third paragraph of LAW declared that “ pensions and other types of social payments and assistance that are the principal sources of subsistence , shall ensure a standard of living not lower than the minimum living standard established by law ” , the suspension for DATE of privileges , compensations and guarantees provided for in the current legislation , led to a violation of constitutional rights of a significant number of NORP citizens .

At the present ... the maximum amounts of an old age pension are respectively CARDINAL and CARDINAL hryvnas ...

... At the same time , the PERSON of GPE “ on Fixing the Minimum Living Standard for DATE ” of DATE approved the minimum living standard for DATE at CARDINAL hryvnas a DATE per person ... The Law of GPE “ on the Minimum Living Standard ” of DATE no . CARDINAL defines the minimum living standard as a cost value of set of food products sufficient for normal functioning of human body , preservation of its health , as well as minimum set of goods and minimum set of services which are necessary for main social and cultural needs of a person .

With a view to the above , ORG considers that some of privileges , compensations and guarantees suspended for DATE ... are not privileges , compensations and guarantees as such for the people to whom they were granted by law , since their pensions and salaries are significantly lower than the minimum living standard established by law , these privileges , compensations and guarantees serve as a particular social aid , support ; supplement to the principles sources of subsistence and are aimed at realisation of a constitutional right of every citizen to sufficient living standard ...

Therefore , suspension of privileges , compensations and guarantees paid from the budgets of all levels ... violates the provisions of ... the third part of DATE LAW ... ”

ORG decided that the provisions suspending the privileges , compensations and guarantees paid from the budget were unconstitutional .


CASE OF KAEMENA AND THONEBOHN v. GERMANY

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

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

The first applicant , PERSON , was born in DATE and is currently detained in GPE . The second applicant , Mr PERSON , was born in DATE and is currently detained in GPE .

On CARDINAL DATE the first and the second applicant were arrested and placed in pre - trial detention on suspicion of having jointly murdered the first applicant ’s husband on DATE .

On DATE the indictment for murder was preferred against the applicants with ORG .

On DATE ORG opened the trial against the applicants , who were represented by counsel throughout the proceedings before the domestic courts , and against another co - defendant ( M. ) .

On DATE ORG convicted the applicants and their co - defendant , who had all denied the charges , of having jointly murdered the first applicant ’s husband , who had stood in the way of the applicants’ plan to marry , and sentenced them to life imprisonment .

Having heard CARDINAL witnesses and CARDINAL experts , having inspected the scene of the crime and having analysed the time and duration of numerous telephone calls between the defendants , ORG concluded that the first applicant had given CARDINAL GPE to PERSON and had lured her husband to a remote place , where he had been shot by the second applicant and PERSON acting jointly .

ORG found that in view of their considerable involvement in their intimate relationship , in which they had driven each other to commit the offence in question , the applicants’ guilt was not of a particular gravity ( Article CARDINALa § CARDINAL of LAW ; see paragraph CARDINAL below ) .

On DATE the applicants both lodged an appeal on points of law . They complained , inter alia , that ORG had made a procedural error in that it had based its judgment on a document containing a list of telephone calls they had made without that evidence having been produced at the main hearing .

ORG likewise lodged an appeal on points of law , which it reasoned on CARDINAL DATE . It contested in particular ORG finding that the applicants’ guilt was not of a particular gravity .

By a decision of CARDINAL DATE ORG ( third senate ) dismissed the ORG appeal on points of law as manifestly ill - founded . It added that it considered the ORG appeal to be inadmissible in so far as they had alleged a procedural error . It argued that the applicants had failed sufficiently to substantiate this complaint . They had not informed the court that in the summons for a witness working for the telephone company who had listed the applicants’ phone calls , the president of ORG had stated that the witness was called to explain the content of the said list of calls .

By a judgment delivered on DATE , ORG , having held a hearing , allowed the prosecution ’s appeal on points of law . It quashed the judgment of ORG in so far as the latter had not considered the applicants’ guilt to be of a particular gravity and remitted the case to a different chamber of ORG .

By submissions dated DATE and DATE respectively the second and the first applicant lodged a constitutional complaint with ORG . They notably contested ORG finding that their appeal had been inadmissible in so far as they had alleged a procedural error .

On DATE ORG communicated the constitutional complaints to ORG and ORG for observations .

On DATE ORG submitted his observations to ORG . On DATE the president of ORG filed the observations of all senates of that court .

In DATE ORG invited the applicants to submit written observations in reply by DATE .

On DATE the first applicant and on DATE the second applicant lodged observations in reply . Both applicants had previously been informed by ORG , at their request , that the court would not take a decision before DATE .

On DATE ORG informed the first applicant , at her request , that a decision would probably be taken in the course of DATE .

On DATE ORG , sitting as a senate of CARDINAL judges , quashed the decision of ORG of DATE and remitted the case to that court ( file no . CARDINAL BvR CARDINAL/CARDINAL and no . CARDINAL BvR CARDINAL/CARDINAL ) .

In its leading decision ( running to CARDINAL pages ) , ORG examined the constitutionality of the requirements set forth in the case - law of ORG which an appellant has to satisfy in order to lodge an admissible appeal on points of law about a procedural error . ORG found that as a rule , these requirements did not violate the ORG right to effective legal protection . However , in the applicants’ case , having regard to the entirety of their submissions made , ORG had over - stretched the said requirements by requesting information also about a witness ’s summons as such , and had therefore breached the applicants’ right to effective legal protection .

ORG decision was served on the applicants’ counsel on DATE .

In their submissions dated DATE to ORG the applicants , contesting ORG view , argued , in particular , that the proceedings had lasted unreasonably long . They requested the court to find a violation of LAW ( the first applicant argued that there had also been a breach of LAW ) and to mitigate the length of their prison term in compensation .

On DATE the execution of the arrest warrant against the first applicant was suspended and she remained at liberty until DATE .

The hearing fixed for DATE had to be cancelled as the first applicant ’s counsel were unavailable .

On DATE the second applicant suffered a heart attack .

Having held a hearing on DATE , ORG ( third senate ) dismissed the ORG appeal on points of law by judgment of DATE . It found that the ORG complaint that ORG had made a procedural error in using the telephone lists in evidence was ill - founded because the time and duration of the telephone calls in question had been confirmed by different witnesses who had been confronted at the hearing with the data contained in the telephone list .

Moreover , ORG found that the length of the proceedings did not warrant a mitigation of the applicants’ sentence of life imprisonment .

The lapse of time since its decision of CARDINAL DATE was not automatically attributable to the judicial authorities only because ORG had subsequently quashed that decision . It argued that , as a rule , the fact that a decision was quashed and the case remitted to the lower court did not entail a violation of the right to have one ’s case heard within a reasonable time , but was a necessary consequence of the possibility to rectify mistakes on appeal . Only delays caused by decisions which disclosed a flagrant breach of the law could therefore be considered as having delayed the proceedings contrary to the rule of law . As in the present case its decision of DATE did not disclose such a flagrant breach of the law , there had not been a delay which was attributable to the judicial authorities since then .

Moreover , ORG considered that it could leave open the question whether ORG had failed to treat the applicants’ constitutional complaints without undue delay . Even assuming that there had been such a delay , the applicants could not claim redress therefor . Pursuant to LAW ( see paragraph CARDINAL below ) a person acting with criminal responsibility who was found guilty of murder had to be sentenced to life imprisonment . The court further left open whether an exception to this rule had to be made in exceptional cases in which there had been an extreme delay , as this was not the case in the proceedings against the applicants . As their convictions and their sentence had been final according to the provisions of LAW already on DATE , the uncertainty arising from the applicants’ mere hope that ORG would allow their constitutional complaints did not entail a strain which necessitated compensation . In these circumstances , there was no reason for a mere declaration that there had been a violation of the LAW .

The judgment was served on the applicants’ counsels on DATE .

In DATE the applicants lodged a constitutional complaint with ORG against the judgment of ORG of DATE . Invoking their right to liberty and to be heard within a reasonable time , they argued in particular that due to the excessive delays in the proceedings , in particular between CARDINAL DATE and DATE , their sentences of life imprisonment should have been reduced to fixed terms of imprisonment .

On DATE ORG , sitting as a panel of CARDINAL judges , declined to consider the applicants’ constitutional complaints ( file no . QUANTITY BvR CARDINAL/CARDINAL and no . CARDINAL BvR CARDINAL/CARDINAL ) as these were manifestly ill - founded .

Even though ORG was not convinced that the duration of proceedings before it could be added to the length of criminal proceedings , as it was not part of the ordinary system of legal remedies , it left this question open . It found that it was not necessary to examine whether there had been undue delays contrary to the rule of law in the proceedings before it or before ORG .

Even assuming such delays , a reduction of the applicants’ sentences was excluded because in cases of murder , the sentence of life imprisonment was mandatory according to LAW . Therefore , a violation of the right to be heard within a reasonable time could not , as a rule , lead to a mitigation of this sentence . The court reiterated that the unreasonable duration of criminal proceedings could reduce an offender ’s guilt and could , in exceptional cases , even warrant compensation by dispensing with punishment or by discontinuing the proceedings . However , LAW did not authorise the courts to consider any aspects reducing a murderer ’s guilt such as the excessive duration of the proceedings against him or her . This finding was confirmed by LAW ( see paragraph CARDINAL below ) . By ruling that murder was not subject to the statute of limitations , the legislator showed that even long delays between the commission and the conviction of this offence should not be taken into consideration as a mitigating factor .

ORG found that it could be left open whether in cases in which DATE had passed between the commission of the offence and the murderer ’s final conviction a mitigation of the sentence of life imprisonment was necessary for reasons of proportionality . Even assuming that there had been unreasonable delays in the present proceedings after ORG decision of DATE , these had not been so long as to justify a mitigation of the mandatory life sentence prescribed by law for murder .

The court , disagreeing with the applicants , further found that the rights of a murderer were not less protected than those of other offenders . Unreasonable delays during the proceedings before the criminal courts could , for example , lead to his or her release from detention pending trial .

NORP The decision was served on the applicants’ counsel on DATE .

On DATE ORG resumed the proceedings concerning the question whether the applicants’ guilt was of a particular gravity , which it had suspended at the applicants’ request .

In its judgment delivered on DATE ORG found that , having regard to the circumstances in which the murder had been committed , the applicants’ guilt was not of a particular gravity ( Article CARDINALa § CARDINAL of LAW ) .

Under LAW , the intentional killing of a person is to be qualified as murder if certain aggravating elements are present . A murderer is notably a person who kills another out of cupidity or other base motives ( LAW ) . Murder is punishable by life imprisonment ( LAW ) .

Murder is not subject to the statute of limitations ( Article CARDINAL § CARDINAL of LAW ) .

A declaration by the sentencing court which imposed a life sentence that the offender ’s guilt was of particular gravity has a bearing on a subsequent decision of the court dealing with the execution of sentences as to whether or not to suspend the remainder of the offender ’s prison sentence on probation . Pursuant to Article CARDINALa § CARDINAL of LAW , that court suspends the remainder of a life sentence on probation if the convicted person has served DATE of his or her sentence , provided that this can be justified in the interests of public safety and provided that the particular gravity of the offender ’s guilt does not warrant the continued execution of the sentence .

Article DATE and Article CARDINAL of the Criminal Code contain rules on the fixing of sentences . Pursuant to Article CARDINAL § CARDINAL no . CARDINAL of LAW , the courts are to reduce a life sentence to a term of imprisonment of not DATE if the mitigation of the penalty under this provision is either prescribed or authorised by law . Article CARDINAL § CARDINAL of LAW prescribes that the time a convicted offender has spent in detention pending trial for the offence at issue in the proceedings shall , as a rule , be deducted from the term of imprisonment imposed on him . If a period of time spent in detention abroad is to be deducted from the sentence , the court shall determine the period to be deducted at its discretion ( LAW ) .

According to the settled case - law of ORG , which is applied by the criminal courts , LAW , read in conjunction with the principle of the rule of law as enshrined in LAW of LAW , guarantees the right to expeditious criminal proceedings ( see , inter alia , that court ’s judgment of DATE , no . CARDINAL BvR CARDINAL/CARDINAL , § CARDINAL ; and decision of CARDINAL DATE , nos . CARDINAL BvR CARDINAL/CARDINAL , CARDINAL BvR CARDINAL/CARDINAL and CARDINAL BvR CARDINAL/CARDINAL , § CARDINAL ) . Moreover , penalties imposed on a defendant have to comply with the constitutional right to liberty guaranteed by LAW of LAW , read in conjunction with the principle of proportionality enshrined in the rule of law ( see , inter alia , ORG decision of CARDINAL DATE , nos . CARDINAL BvR CARDINAL/CARDINAL , CARDINAL BvR CARDINAL/CARDINAL and CARDINAL BvR CARDINAL/CARDINAL , § CARDINAL ; and decision of CARDINAL DATE , no . CARDINAL BvR CARDINAL/CARDINAL , § CARDINAL ) .

As the legislator did not lay down any rules on the consequences of a violation of the right to expeditious proceedings , the criminal courts and the prosecution authorities are , as a rule , called upon to draw the necessary conclusions from undue delay in the proceedings . They may discontinue the proceedings pursuant to ORG CARDINAL and CARDINALa of the Code of Criminal Procedure , limit criminal prosecution pursuant to ORG CARDINAL and CARDINALa of LAW , terminate the proceedings either by dispensing with a penalty or by a warning with sentence reserved ( PERSON ) or take the LOC length into account as a mitigating factor when fixing the penalty ( see ORG , judgment of CARDINAL DATE , no . CARDINAL BvR CARDINAL/CARDINAL , § § CARDINAL ; and decision of CARDINAL DATE , no . CARDINAL BvR CARDINAL/CARDINAL , § § DATE ) .

If there was a violation of the right to expeditious proceedings , the criminal courts , in their judgments , expressly had to determine the extent of the delays and their cause . If redress was afforded by a mitigation of the penalty , the courts then had to fix the extent of the compensation granted by indicating the penalty which they would have imposed without the delay and by fixing the penalty mitigated because of the delays . Only the latter , mitigated penalty appeared in the operative part of the judgment ( see , inter alia , ORG , decision of DATE , no . CARDINAL BvR CARDINAL/CARDINAL , ORG für ORG ( ORG ) DATE , p. CARDINAL ; ORG , decision of DATE , no . CARDINAL StR DATE , ORG DATE , pp . CARDINAL - CARDINAL with further references ) .

In its decision of CARDINAL DATE ORG , sitting as ORG , reversed its previous case - law on the way in which compensation should be granted for excessive delays in criminal proceedings ( file no . GSSt CARDINAL ) .

ORG held that in cases in which criminal proceedings had been excessively delayed , the criminal courts should no longer directly reduce the penalty imposed on the convicted person ( so - called mitigation of penalty approach – Strafabschlagslösung ) , but should instead state in the operative part of the judgment that a specified part of the penalty imposed was to be considered as having been executed ( so - called “ execution approach ” – Vollstreckungslösung ) .

ORG considered that in certain cases , mitigating the penalty in order to compensate for the excessive length of proceedings , which was called for by LAW , was not compatible with the provisions of LAW and of LAW . Notably in cases in which compensation could be granted only by reducing a minimum penalty prescribed by law , the “ mitigation of penalty approach ” could not be reconciled with the provisions of LAW . For instance , it was not possible under the provisions of that LAW to dispense with imposing a mandatory life sentence in order to compensate for the undue duration of proceedings .

By contrast , the “ execution approach ” , which could be derived from the principle of compensation enshrined in the ORG and from LAW ( see paragraph CARDINAL above ) and which was compatible with Articles CARDINAL and CARDINAL of the LAW , made it possible to afford compensation in all cases of excessive duration of proceedings . It allowed the criminal courts both to impose the minimum sentence prescribed by law and nevertheless to afford compensation by declaring that a fixed part of that penalty had to be considered as already executed . In the case of a life sentence , for instance , the courts could afford compensation by declaring that a part of the minimum sentence to be served ( see Article CARDINALa § CARDINAL of LAW , paragraph CARDINAL above ) had to be considered as having been served . Moreover , by separating the fixing of the penalty in accordance with the defendant ’s guilt and the granting of compensation , the penalty maintained its function with respect to other provisions of criminal law ( concerning , for instance , probation or preventive detention ) and provisions concerning civil servants and foreigners .

When applying the “ execution approach ” , the criminal courts first had to determine the extent and causes of undue delays in the proceedings . In fixing the sentence in accordance with the defendant ’s guilt , they had to take into consideration as a mitigating factor that a long lapse of time between the offence and the judgment in general reduced the necessity to punish the offender . Moreover , the undue duration of the proceedings could play a role in that the defendant was subjected to a greater burden as a result of lengthy proceedings . In a furtherthen had to determine which part of the penalty was to be considered as having already been executed in order to compensate the defendant for the delay caused by the ORG authorities and courts contrary to the rule of law . Both the penalty and the part of it which had to be considered as executed had to be taken up in the operative part of the judgment .


CASE OF PINCOVÁ AND PINC v. THE CZECH REPUBLIC

Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award

On DATE the first applicant and her husband purchased a forester ’s house with a barn and cowshed which they had been renting since DATE . The sale price – CARDINAL NORP korunas ( ORG was fixed by a surveyor appointed by the landlord , a ORG enterprise which was also the couple ’s employer and which had acquired the house without compensating the former owners , who had been dispossessed of their property in DATE pursuant to Law no . CARDINAL on revision of the First Land Reform ( zákon o revizi první pozemkové reformy ) .

On DATE the first applicant and her husband paid the vendor ORG CARDINAL under the terms of an agreement giving them the right to make personal use of the land attached to the house .

On DATE , after the entry into force of PERSON no . CARDINAL/CARDINAL ( zákon o půdě – “ LAW ” ) , the son of the persons to whom the forester ’s house had belonged until its confiscation in DATE instituted proceedings in ORG ( okresní soud ) seeking recovery of the property by virtue of section CARDINAL(CARDINAL ) of LAW . He alleged that the acquisition of the house by the first applicant and her husband had been vitiated by a breach of the regulations in force at the time and that they had enjoyed an unlawful advantage in that the price they had been required to pay had been lower than the property ’s real value . He argued that the valuation of the house had been neither objective nor compatible with the legislation then in force .

NORP In their defence , filed with ORG on DATE , the applicants submitted that the purchase price had been properly calculated in accordance with the provisions applicable at the material time , and pointed out that the contract of sale had been adjudged valid by the Příbram branch of the ORG notary service ( státní notářství ) , which had registered it .

On DATE the ORG commissioned an expert opinion to establish whether the DATE valuation had complied with the regulations then in force . The expert ’s report was filed with the court on DATE . In it the expert stated that after studying the file and the DATE valuation he had found that “ this valuation was not entirely compatible with the legislation in force at the time ” and that he had “ in addition noted instances of underestimation of area ” . He had therefore decided to “ carry out a complete revaluation , applying the legislation formerly applicable and taking as [ his ] basis the state of affairs as described in the course of the proceedings ” in order to be able to compare the CARDINAL valuations and quantify the difference between them . The expert report assessed ( a ) the inhabitable parts of the property and ( b ) the non - inhabitable parts , namely the barn and cowshed . With regard to the latter , the expert reported :

“ ... the small barn and the adjoining cowshed were classified as ‘ small constructions’ , as they served only for the use of the occupier , not for any agricultural activity . That led to an essential difference between the valuation produced ... in DATE and the present one . My valuation is justified by a written instruction of DATE relating to LAW , which provides : ‘ The purchase price may also be applied to small constructions used for animal husbandry , provided that this activity does not go beyond the personal needs of the owner and the members of his family.’ The barn is currently used as a toolshed . ... My classification of the CARDINAL buildings complied with LAW no . CARDINAL/CARDINAL ... I took the barn and cowshed to be possessions in personal ownership , as they were not used for agricultural activities but only for the needs of the owner . If they had been private property the legislation then in force would not have permitted their transfer . Public establishments could sell to individuals only buildings classifiable as properties in personal ownership ... The difference in price for these CARDINAL buildings , in relation to the DATE valuation , is nearly FAC ... ”

The applicants pointed out that the expert ’s valuation of the inhabitable parts of the LOC was practically identical to the DATE valuation , the difference of FAC being solely due to the valuation of the barn and cowshed . They challenged the valuation procedure because it had been based on Decree no . CARDINAL/CARDINAL , which did not specify the prices applicable in practice to buildings belonging to socialist organisations , and whose LAW , they argued , excluded its application to their case . They further submitted that the price difference that had been noted was due in large part to a different assessment of the depreciation to be taken into account for the CARDINAL buildings in question .

After the death of the first applicant ’s husband , her son , the second applicant , became the co - owner of the forester ’s house .

In a judgment of CARDINAL DATE ORG allowed the application by the son of the former owners and decided to transfer title to the disputed property to him , ruling as follows :

“ After assessing the evidence , particularly the depositions of the parties and the witnesses , the contract of sale registered by the ORG notary service on CARDINAL DATE , the agreement of CARDINAL DATE conferring the right to make personal use of the land , ... , the valuation of the house ... made on DATE ... , the expert report of DATE , drawn up in accordance with instructions from [ the first applicant ] and admitted by the court in evidence , ... , and the expert report on the price of the buildings , drawn up by the court - appointed expert ... , the ORG notes that ... LAW ( Law no . CARDINAL/CARDINAL ) applies , since the dispute concerns transfer of title to buildings intended for forestry production , within the meaning of section CARDINAL ) of LAW ...

The claimant ... is entitled to claim restitution under the restitution legislation ... The members of the defendants’ family were not leading figures of the former communist regime but simple forestry workers who moved into the house as employees of the enterprise . They agreed to buy it when their employer gave them the opportunity to do so because they had no alternative accommodation . As for the purchase price , they accepted the amount fixed by [ the surveyor ] , which they had no reason to challenge .

Nevertheless , it is incontestable that whereas the purchase price of the house should have been fixed at ORG , it cost them only ORG . Consequently , the conditions of section CARDINAL(CARDINAL ) of LAW are satisfied in the instant case because , in DATE , the defendants acquired the property at a price lower than the true value . The difference amounted to CARDINAL of the true value . ”

On DATE the applicants appealed against the above judgment to ORG ( krajský soud ) . They submitted that at the time when the proposal that they should purchase the house had been made to them they were under threat of eviction . They pointed out that both the surveyor ’s report and the contract of sale had been drawn up by the vendor , and that the transaction had been effected in accordance with the legislation then in force – indeed the ORG notary service had verified the purchase price before registering the contract . They alleged that the court expert ’s report did not constitute sufficient proof that the purchase price had been lower than the price required by the regulations at that time . They accordingly asked ORG to order a new expert report .

On DATE ORG upheld the first - instance judgment , ruling as follows :

“ It emerges from the [ DATE ] expert report ... that the valuation made [ in DATE ] did not comply with the rules in force at the time . ... The barn and the cowshed should have been valued as buildings in personal ownership , since they were not used for agricultural purposes but had been placed at the disposal of the owners of the house . ... According to LAW of ORG ... only buildings in personal ownership could be sold to citizens by a socialist organisation . If the regulation then in force and Decree no . CARDINAL/CARDINAL had been applied , the purchase price would have been fixed at ORG .

Consequently , ORG upholds ORG finding that the question of the transfer of title must be considered under PERSON no . CARDINAL/CARDINAL ... It has been established that the purchase price was determined by the vendor without the benefit of any expert report ... and that it was lower than the price required by the rules on prices then in force , which is apparent from the [ court ] expert ’s report .

As to the appellants’ objection that the contract of sale was registered by the ORG notary service ... which deemed the barn and cowshed to be buildings in private ownership , it should be noted that this classification was the result of a legal opinion which is not a binding precedent for adjudication of the case ... Moreover , regard being had to the fact that the claimant has already obtained the restitution of QUANTITY of woodland , it is desirable , in accordance with PERSON no . CARDINAL/CARDINAL ... , for the forester ’s house to be used for its original purpose . ”

On DATE the applicants appealed to ORG ( Ústavni soud ) , submitting that they had purchased the house in accordance with the rules then in force and without any unlawful advantage . They also relied on LAW , under which a contract of sale could be declared void only when the purchase price was too high . They argued that ORG had deprived them of their property and that accordingly their right to protection of their property under LAW ( Listina základních práv a svobod ) had been infringed . They further complained that they had been deprived of fair and appropriate compensation , contending that although by virtue of section CARDINAL(CARDINAL ) of LAW a natural person was entitled to reimbursement of the purchase price and the costs reasonably incurred for the upkeep of the property , the sum of CARDINAL NORP korunas ( CZK ) for the purchase price and reimbursement of their costs could never make good the loss of the house . They had been deprived of their title to the property on account of the difference noted CARDINAL prices calculated according to CARDINAL different methods . Moreover , in the judicial proceedings they had not been on an equal footing with the other party , particularly in view of the possibility the claimant enjoyed of consulting the relevant documents . In that connection they relied on LAW .

The applicants also asked ORG to stay execution of ORG judgment and declare null and void part of section TIME ) of LAW . They argued that in so far as the provision in question permitted restitution in the event of “ the purchase of immovable property at a price lower than the price required by the regulations on prices then in force ” , thus threatening title acquired in accordance with the legislation applicable at the time of purchase , it gave former owners the possibility of challenging the valuation of properties made at the time of their transfer . They asserted that section CARDINAL(CARDINAL ) of LAW thus caused them prejudice identical to that caused DATE , which the LAW was supposed to attenuate . They submitted that it was inadmissible to make natural persons who had acquired property in good faith and in accordance with the legislation applicable at the material time bear responsibility for unlawful decisions or incorrect procedures adopted by the ORG .

On DATE the applicants asked ORG to stay execution of ORG judgment , to exempt them from payment of the costs of the proceedings and to reopen the case . In the latter application they based their arguments on an opinion on the question of methodology delivered by the author of an exegesis of the relevant legislation published by ORG ( ORG cenový úřad ) , which in their submission proved unequivocally that the court expert had made a mistake . They also submitted to ORG documents from the ORG archives capable of proving what use the disputed property had been put to in the past .

On DATE people living in the municipality of Hříměždice and other villages sent a petition to the President of the Republic and to ORG expressing their belief that the human rights guaranteed by the LAW had been infringed in the applicants’ case . They pointed out that the son of the former owners had recovered possession of a large estate ( QUANTITY of woodland and QUANTITY of other land ) , whereas the applicants had lost nearly all their possessions , although they had acquired them in good faith .

On DATE , in response to the petition , an MP sent a written question to the Deputy Prime Minister , the Minister of Agriculture and the Director of ORG , saying that he wondered whether section CARDINAL(CARDINAL ) of LAW , which provided for the possibility of restitution in the event of “ the purchase of immovable property at a price lower than the price required by the regulations on prices then in force ” , was not contrary to the principle of legal certainty , in so far as it made it possible to transfer the responsibility for unlawful acts by the ORG to individuals who had acted in good faith . He also considered problematical , from the point of view of equality between litigants , legal provisions such as section ORG ) of LAW , which guaranteed persons who could claim restitution the right to various forms of assistance or exemption from costs in the judicial proceedings .

NORP The Deputy Prime Minister replied on DATE . He said the doubts expressed were unfounded and pointed out that LAW had been framed in such a way as to pose , in addition to the general conditions , CARDINAL additional tests each designed to exclude the purchasers’ good faith . The fact that LAW referred to the legislation in force at the time of purchase could not be considered to impair legal certainty on account of some retrospective effect .

On DATE ORG examined at a public hearing the applicants’ application for the proceedings to be reopened . Despite a new expert report submitted by them and drawn up on their own initiative , it refused the application , noting , inter alia , that in the original proceedings neither party had called as a witness the expert appointed by the court and that it was only on appeal that the applicants had asked for the expert evidence to be reviewed . Consequently , the statutory conditions for a retrial had not been met in the instant case .

On DATE the applicants appealed against the above decision , asserting that they had submitted evidence which it would have been objectively impossible for them to present during the original proceedings . On DATE ORG upheld the decision of DATE , holding that there were no facts , decisions or evidence which it would have been impossible for the defendants to rely on in the initial proceedings . However , it gave leave for an appeal on points of law against its ruling .

On DATE , therefore , the applicants appealed on a point of law to ORG ( PERSON ) . They argued that in the proceedings on their appeal against the judgment which had transferred title they had proposed in vain the commissioning of a second expert report and that ORG attitude had prompted them to have a new expert report drawn up on their own initiative .

On DATE ORG dismissed the applicants’ constitutional appeal as manifestly ill - founded , ruling as follows :

“ The alleged violation of LAW of LAW must be examined not just from the NORP point of view but also from that of the person claiming restitution ... ORG refers in that connection to its judgment published under file no . CARDINAL/CARDINAL ... , in which it noted that the purpose of restitution was to attenuate infringements of the rights of real - property owners by making reparation for the unlawful act committed at the time of the transfer of the property and by giving priority to the restitution of properties in their original condition . Consequently , the ORG can not find a violation of LAW unless the statutory conditions for restitution are satisfied . ...

The annulment sought by the applicants , of part of section CARDINAL(CARDINAL ) of LAW ( Law no . CARDINAL/CARDINAL ) , would have limited the right to restitution and would have harmed the interests of a large number of restitution claimants ... The laws on restitution must establish the conditions for redressing wrongs , it being understood that it is for the national courts to examine all the circumstances in the light of the purport and general object of those laws .

The reporting judge has established , in the light of all the documents submitted , that the ordinary courts correctly applied the law to the case in allowing the claim for restitution and in deciding that title should be transferred to the claimant ... , as the appellant and her husband had bought the house at a price lower than the price resulting from application of the rules on prices then in force .

As regards violation of LAW , which enshrines the principle of equality between litigants , the ORG notes that during the judicial proceedings the courts scrupulously examined both the evidence adduced by the person claiming restitution and the evidence adduced by the defendants . ...

On DATE the applicants submitted further grounds for their appeal on points of law ( dovolání ) , observing that all the courts dealing with their case , including ORG , had proceeded on the assumption that the report of the court - appointed expert was correct , whereas , among other defects , it had been established on the basis of a directive from ORG which had no legal validity , and that Decree no . CARDINAL/CARDINAL was not applicable to the case . They also drew attention to the fact that , according to the second expert report drawn up at their request , the purchase price they had paid in DATE was not lower but higher than the price required by the legislation in force at the time of the sale .

On DATE ORG declared the applicants’ appeal on points of law inadmissible , pointing out that it could have been admitted in the initial proceedings but could not be in proceedings brought by means of an application for a retrial .

The applicants were reimbursed by ORG the purchase price they had paid in DATE and the sum they had paid for the right to make personal use of the land . They thus received altogether CZK CARDINAL . On the other hand , reimbursement of the costs they had reasonably incurred for the upkeep of the house was put off on account of a disagreement between the applicants and the ORG over the applicable rate . According to the applicants , the ORG had announced that it was prepared to pay them CZK CARDINAL,CARDINAL but had never made the slightest payment , in spite of their request that it do so . The amount must therefore be fixed by ORG , the applicants having brought an action against ORG in DATE seeking payment in the sum of CZK CARDINAL .

According to the information supplied by the parties , the new owner of the property has not to date offered the applicants alternative accommodation and they still live in the house . They contended that the new owner had refused to sign a tenancy agreement with them in order to regularise the situation but had brought an action in the ORG seeking payment of arrears of rent in the sum of CZK MONEY ( corresponding to more than CZK CARDINAL per month ) , plus default interest . Apparently this action led on DATE to an order to pay being made against them . When they appealed , CARDINAL hearings were seemingly held on DATE and DATE , and the owner , it would appear , is now seeking a still higher sum , corresponding to a rent of CZK CARDINAL per month . The applicants observe that the proceedings they brought in DATE in order to determine how much they should be reimbursed for the costs they incurred for the upkeep of the property are still pending . They therefore consider that their position vis - à - vis the public authorities is less favourable than that of the new owner .

Article QUANTITY provide , among other matters , that everyone enjoys the right of property . Statute law must specify which goods necessary for society ’s needs , development of the national economy and the public interest may be possessed exclusively by the ORG , by municipalities or by legal persons designated therein ; it may also make provision for certain goods to be possessed exclusively by citizens or natural persons resident in the NORP and GPE . Under LAW , any abuse of property to the detriment of the rights of others or in conflict with the general interest protected by law is forbidden . LAW provides that expropriation or enforced restriction of the right of property is possible only in the public interest , in accordance with the law and in return for compensation .

Under LAW of the LAW everyone is entitled to legal assistance in proceedings before the judicial authorities , other ORG authorities or the administrative authorities . Article CARDINAL § CARDINAL provides that all parties to judicial proceedings must have the same rights .

Section CARDINAL(CARDINAL)(c ) of LAW provides that LAW is applicable to inhabitable and farm buildings and to constructions , including the land on which they have been built , used for agricultural or forestry production , or for water management linked with such production .

Section CARDINAL(CARDINAL ) provides that claims for restitution may be lodged only by a national of the NORP and GPE whose lands , buildings and/or constructions which had formerly been part of an agricultural undertaking were transferred to the ORG or other legal persons under the conditions set out in section CARDINAL(CARDINAL ) between CARDINAL DATE and CARDINAL DATE . LAW ) provides that where such a person dies or is declared deceased before expiry of the time - limit laid down in LAW , his or her right to restitution is transferred , on condition of citizenship of the NORP and GPE , to the following natural persons : in equal shares to the children and spouse of the person referred to in section PERSON ) ; where a child dies before expiry of the time - limit laid down in CARDINAL , his or her children succeed to the right to claim , and if CARDINAL of them dies the right passes to his or her children .

Section CARDINAL ) provides for the return , to persons entitled to claim its restitution , of immovable property transferred to the ORG or a legal person by confiscation without compensation under PERSON no . CARDINAL/CARDINAL on revision of ORG or PERSON no . TIME on ORG .

Section CARDINAL , amended by PERSON no . ORG , provides in particular that it is for the courts to decide whether to return a property in the possession of a natural person who acquired it from the ORG or another legal person in breach of the rules then in force or at a price lower than the price required by the regulations on prices applicable at the material time , or who enjoyed an unlawful advantage at the time of purchase . Section CARDINAL(CARDINAL ) provides that the person who is obliged to return a property pursuant to section CARDINAL(CARDINAL ) is entitled to reimbursement of the purchase price and the costs reasonably incurred for its upkeep .

Section CARDINAL(a ) provides for exemption from the payment of administrative fees in connection with restitution , exchange of properties or compensation . A person entitled to claim restitution who seeks to assert his right against a person required to return the property concerned does not have to pay court fees . That exemption also applies to persons who seek to assert their rights under section CARDINAL . Costs for valuations and for identifying and surveying plots of land are borne by the ORG .

NORP Under section CARDINAL(a ) , and except where otherwise provided , the amount of compensation awarded under LAW is fixed in relation to the prices valid on DATE , as Decree no . DATE applies to the prices of real property .

Under LAW , alternative accommodation may take the form of either a compensatory flat or compensatory housing . A compensatory flat means a flat whose dimensions and facilities are such as to guarantee that the tenant and his household can be housed in a manner consistent with respect for human dignity . Compensatory housing means a bed - sitting - room or a room in a hostel for young unmarried persons , or a sublet part , whether furnished or unfurnished , of a flat rented by another tenant . If the tenant is entitled to alternative accommodation , he is not obliged to vacate the flat from which his eviction is sought until he has received appropriate compensation ; co - tenants are entitled to only one offer of alternative accommodation .


The applicants are NORP citizens , born in DATE and DATE respectively and resident in GPE . They are represented before the ORG by Mr PERSON , a lawyer in GPE . The respondent Government are represented by Mr PERSON , Director - ORG in ORG , and by Mr PERSON , Director in the same Ministry .

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

The applicants are partners and have CARDINAL children : PERSON , born in DATE , and J. , born in DATE . While the family was living in GPE in DATE PERSON was placed in public care during the applicant mother ’s arrest . Following the mother ’s disappearance on her release the applicant father and PERSON went to GPE to look for her . On arrival in GPE the father was in a confused state of mind necessitating an examination at a psychiatric hospital . PERSON was taken into public care by means of an emergency order issued pursuant to section CARDINAL of LAW ( lastensuojelulaki , barnskyddslag DATE ) but this care was apparently not prolonged .

The applicants later moved to GPE , where the social authorities were monitoring the family from DATE .

On DATE an official of ORG ( sosiaali- ja terveyslautakunta , social- och hälsovårdsnämnden ) of PERSON decided to place PERSON in public care by an emergency order . The applicant had left a shelter in contravention of an agreed care plan and had taken PERSON to an unknown place . They returned to the shelter on DATE but again left it TIME before the care order could be enforced .

On DATE ORG confirmed the care order pursuant to section CARDINAL of LAW and decided that PERSON be placed in a children ’s home in GPE . ORG found that she had been forced to live in an unsafe environment due to the applicants’ alcohol and drug abuse and their criminal behaviour . She had also had been exposed to , and frightened by , domestic violence . The parents had declined an offer of treatment against their drug abuse and had avoided co - operation with the social workers . In DATE PERSON had been placed in a foster home in GPE with the GPE consent . The mother had later fetched her from there without giving advance notice . On DATE the mother and PERSON had been forced to seek shelter in a home for abused women and children because of the father ’s violent behaviour . The mother had not fully accepted the care plan drawn up by social workers and , on DATE , she had moved with PERSON to whereabouts unknown to the ORG . ORG estimated that the public care would need to be long - lasting .

The applicants appealed to ORG ( lääninoikeus , länsrätten ) of ORG , arguing that their home conditions had improved and stating that they were no longer abusing drugs .

On DATE PERSON and the applicant mother were located by the authorities and PERSON was placed in the children ’s home . On DATE the applicants fetched her from there without permission and again disappeared . They were located in DATE but PERSON was not forcibly removed from the applicants , since the authorities feared the applicant father could turn violent . In DATE the applicants reached an agreement with social workers that PERSON would be placed in a foster family and not in the children ’s home . Before handing PERSON over to the foster family the applicant mother again disappeared with her .

On DATE ORG dismissed the applicants’ appeal against the care order . The applicant father ’s further appeal to ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) was dismissed on DATE .

Meanwhile , on DATE , the applicants were located at ORG in GPE , where the mother was about to give birth to her second child . She had told hospital staff that she wished to leave the hospital with the baby immediately after the birth .

In a decision of DATE the Social Director placed the new - born baby in public care by an emergency order . The CARDINAL children were first cared for in the hospital which the applicant mother had left without indicating any contact address . On DATE the baby was moved to a children ’s home , whereas PERSON was placed in a foster family , whose whereabouts were not disclosed to the applicants . Access was prohibited until DATE . In upholding the access prohibition on DATE the ORG noted that in DATE the mother had fetched PERSON from a children ’s home without permission and that the father had repeatedly threatened to take her away from there . ORG again referred to the applicants’ criminal behaviour and alcohol and drug abuse .

On DATE baby J. was placed in the same foster family and a similar access prohibition was issued on DATE . On DATE ORG replaced the emergency care order with an ordinary order and upheld the access prohibition . It noted that immediately after having delivered the baby the applicant mother had gone into hiding in order to evade enforcement of the care order concerning PERSON The applicants had been found guilty of different crimes and had been using alcohol and narcotic substances . In such circumstances they were incapable of ensuring ORG healthy development and of providing her with a secure environment . The applicants had further refused services offered to them in order to deal with their alcohol problem .

On DATE ORG dismissed the ORG appeals against the care order concerning PERSON and the access prohibitions issued in respect of the CARDINAL children . The ORG further appeals were dismissed by ORG on DATE .

On DATE ORG extended the respective access prohibitions until DATE , again without disclosing the children ’s whereabouts . The ORG appeal was dismissed by ORG on DATE .

On DATE ORG rejected the applicant mother ’s appeal against the respective access prohibitions prolonged in DATE .

On DATE ORG extended the respective access prohibitions until DATE , again without disclosing the children ’s whereabouts . In regard to ORG noted , inter alia , a medical report dated DATE concluding that she had been subjected to sexual abuse . It also noted that the father was serving a prison sentence and that the mother was corresponding with the children and sending them packages via the social authorities .

On DATE ORG dismissed the ORG appeal against the respective access prohibitions , noting that they had been issued in view of the risk that the applicants might again attempt to remove the children from the foster home and go into hiding with them .

According to the Government , the applicants have been convicted of various violent and drug - related offences , most recently in DATE .

The relevant legislation is outlined in the ORG ’s judgment in PERSON and GPE ( [ ORG ] , no . CARDINAL/CARDINAL , § § CARDINAL , ECHR DATE ) . Those provisions of particular relevance to the present case are described below .

According to section CARDINAL of LAW , ORG shall take a child into care and provide substitute care for him or her if ( a ) the child ’s health or development is seriously endangered by lack of care or other conditions at home , or if the child seriously endangers his or her health and development by abuse of intoxicants , by committing an illegal act other than a minor offence , or by any other comparable behaviour , ( b ) the measures of assistance in open care are not appropriate or have proved to be inadequate ; and ( c ) foster care is considered to be in the best interests of the child . PERSON care shall be provided without delay where it is needed and is in the best interests of the child ( section CARDINAL , subsection CARDINAL ) . The care order must be forwarded to the administrative court for approval if a party opposes it and in certain other circumstances ( section CARDINAL , subsection CARDINAL ) .

If a child is in imminent danger for a reason stated in LAW or is otherwise in need of an urgent care order and substitute care , ORG may take him or her into care without submitting the decision to the administrative court for approval ( section CARDINAL ) . An emergency care order expires within DATE of the decision unless a normal order under section DATE is requested during that period . Such an order must be made within DATE , or on special grounds within DATE of the emergency order .

The child ’s custodians , biological parents and de facto carers shall be heard in respect of a proposed public care order and be notified of the decision taken ( section CARDINAL , subsection CARDINAL , of LAW , as amended by Act no . GPE ) . The hearing procedure is governed by LAW ( hallintomenettelylaki , lag om förvaltningsförfarande CARDINAL/CARDINAL ) . Under LAW of the said LAW a party shall be afforded the opportunity to reply to any claims put forward by others as well as to any evidence that may affect a decision to be taken . LAW does not lay down any minimum period of time which a party shall have at his or her disposal for preparing such a reply . A matter may be decided without a preceding hearing of a party inter alia if such a hearing would be manifestly unnecessary , would jeopardise the purpose of the decision or if the decision can not be postponed . Section CARDINAL of LAW requires that the competent authority duly investigate the matter before it and ensure the equality of the parties .

According to section CARDINAL of LAW ( sosiaalihuoltolaki , socialvårdslag CARDINAL/CARDINAL ) , a decision made by ORG is enforceable regardless of an appeal ( a ) if the decision requires immediate implementation ; ( b ) if , for reasons due to the arrangement of social welfare , the enforcement of the decision can not be delayed ; or ( c ) when ORG has ordered the decision to be enforced at once .

According to section CARDINAL of LAW , a child who is being cared for outside his or her original home shall be ensured those important , continuous and secure human relations which are important for his or her development . The child is entitled to meet his or her parents and other close persons and to keep in touch with them ( subsection CARDINAL ) . ORG shall support and facilitate the child ’s contacts with his or her parents and other close persons ( subsection CARDINAL ) .

According to section CARDINAL of LAW and section CARDINAL of LAW , ORG or the director of a children ’s home may restrict the right of access of a child in foster care to its parents or other persons close to him or her if ( a ) such access clearly endangers the development or safety of the child ; or if ( b ) such a restriction is necessary for the safety or security of the parents , or the children or staff in the children ’s home . The restriction shall be limited in time . It shall mention the persons whose rights are being restricted , the kind of contacts concerned by the restriction and the extent of the restriction .

The care plan to be drawn up in respect of a child in public care shall mention ( a ) the purpose and objectives of the placement ; ( b ) what kind of special support will be organised for the child , for the persons in charge of the child ’s care and upbringing and for the child ’s parents ; ( c ) how the child ’s right of access to its parents and other persons close to the child will be organised ; and ( d ) how after - care is going to be organised . According to section CARDINAL of LAW , the care plan shall be elaborated in co - operation with those involved .

Under LAW officials may not , without the consent of the person concerned or that of , for instance , his or her custodian , disclose personal and family information obtained in the performance of their duties . This duty of confidentiality does not prevent officials from disclosing information to those entitled to obtain it for the performance of their official duties ( section CARDINAL ) . Thus the social welfare authorities are entitled to obtain , from a public body such as a municipal care centre , any material required for the performance of their duties ( section CARDINAL ) . The confidentiality of patient records , as stipulated in the LAW on the Status and Rights of Patients ( laki potilaan asemasta ja oikeuksista , lagen om patientens ställning och rättigheter DATE ) , may thereby be waived ( section CARDINAL of the said Act ) . A refusal to disclose information requested under section CARDINAL of LAW constitutes an offence ( section DATE ) .

LAW obligates the authorities to provide social welfare authorities with information not only in accordance with LAW of LAW but also actively and on their own initiative . According to section CARDINAL of LAW , certain officials are under a duty to notify the social authorities immediately whenever a child appears to be in evident need of child welfare measures . Others may also notify ORG of similar suspicions .

Under LAW as in force at the relevant time ( laki yleisten asiakirjain julkisuudesta , lagen om allmänna handlingars offentlighet CARDINAL ) documents drawn up and issued by an authority , or which had been submitted to an authority and were still in that authority ’s possession , were public ( section CARDINAL , subsection CARDINAL ) . An exception to the rule of full publicity was made , inter alia , for medical and similar reports , which were accessible to the public only with the consent of the person they related to ( section CARDINAL ) . The refusal of access to a document could be submitted for reconsideration by the authority refusing such access , following which there lay an appeal under the general rules for appeals against a decision of that authority . If no right of appeal existed under such general rules , an appeal could be lodged with the superior authority . If no such authority existed , an appeal against a state authority ’s decision could be lodged with ORG . An appeal against a decision by another authority could be lodged with an administrative court ( section CARDINAL , subsection CARDINAL ) . On DATE the Act on Publicity of Public Documents was replaced by the Act on Publicity of the Activities of Public Authorities ( laki viranomaisten toiminnan julkisuudesta , lagen om offentlighet i myndigheternas verksamhet CARDINAL ) which provides for similar access and avenues of appeal .


Violation of Art. 10;Pecuniary damage - award;Non-pecuniary damage - award

Giovanni Bonello;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi

The applicant was born in DATE and lives in GPE .

CARDINAL .

On DATE Mr PERSON , at that time the Deputy Speaker of the PERSON , notified ORG that a certain Mr PERSON and PERSON Izabela ORG had kidnapped his DATE daughter , PERSON However , PERSON and PERSON submitted that the allegation was false as PERSON had in fact run away from home and had only been accompanied by their son PERSON who had been her boyfriend for a long time . PERSON had previously run away from home on several occasions because of conflicts with her parents .

On DATE the Łódź Regional Prosecutor initiated an investigation into the allegations of kidnapping against Mr PERSON and PERSON . On DATE the prosecutor issued a warrant authorising the search of their flat and the tapping of their telephone . They were arrested and remanded in custody . In DATE the case was taken over by ORG who discontinued the criminal proceedings against them , finding that the allegations of kidnapping had been groundless . Disciplinary proceedings were brought against both prosecutors who had instituted the criminal proceedings .

On DATE PERSON had made a statement on public television in which he said that his daughter had been kidnapped and asked for assistance in finding his child .

The case concerning the alleged kidnapping of GPE received wide coverage in the media .

The applicant owns a publishing house named “ PERSON ” which publishes the DATE magazine “ ORG ” .

On DATE the applicant published in “ ORG ” an interview with Mr PERSON , a lawyer who at the material time represented Mr PERSON and PERSON in the criminal proceedings concerning the alleged kidnapping . The article was entitled : “ If it had been quiet ” and was in the form of questions put by a journalist and answers given by Mr GPE The article , in so far as relevant , read as follows :

“ ‘ A[ngora]’:-I have brought you fresh news from ORG : the arrest warrant against [ PERSON ] has been quashed , the children however have not come back home .

ORG [ Michał Plisecki]:- I do not want to – publicly – go into the details concerning the issuing and quashing of the arrest warrant . Allow me not to comment on it because I would have been forced to use very blunt language . I would refer to another issue : if it is true that [ M.K. ’s ] parents - after an unsuccessful attempt to place her in a psychiatric clinic –left her alone , under the care of her grandmother somewhere in the countryside , then should I – as a parent – be shocked by such behaviour ? There is no other conclusion from the above fact : they simply do not love her . It is not that they do not understand her , because this is proved by their behaviour as a whole , but that the wish to separate [ M.K. ] from the world is in the interests of those people . Mr PERSON ’s statement that he suspected that his daughter had been spying on him while she was dating PERSON and in particular the statement by the mother of [ M.K. ] that her daughter had been serving as a mattress for PERSON this is terrifying ! That was probably the reason why the Member of ORG Mr Kołodziejczyk , who represents the interests of all citizens , decided to apply to the family court to solve the tragic problem of [ M.K. ] and the PERSON family . If I may give my private opinion , I also believe that one should think over how to arrange [ PERSON ’s ] future life .

‘ A’:- So , if it was not for journalists , it would have been different ? Maybe quieter ?

ORG If it had been quieter , then from my point of view , and after Mr PERSON ’s having publicised the case in a certain context , I do not exclude the possibility that my client [ Mrs ORG ] would still have been in the detention centre . I do not exclude the possibility that PERSON would have been arrested too . The fact that my clients are free is due to the pressure of public opinion .

‘ A’:- You have said : ‘ PERSON ran away from home’ . But it has been said that it was an abduction or kidnapping .

ORG The prosecutor and his deputy know that [ M.K. ] ran away from home . It has been proved by witnesses ( ... ) [ M.K. ] had asked PERSON to accompany her and that is what happened . This is not a crime !

‘ A’:- ORG [ for Human Rights ] , the ORG , the President ...

GPE ... let me add : ORG . Recently the ORG made an appeal for assistance for PERSON to the Ministers of Justice and of ORG – in the private matter of PERSON . I believe that since PERSON PERSON has abused power and has caused such unlawfulness and it has been supported by ORG , it means that ORG supports these kinds of methods involving aggressive behaviour .

‘ A’ : -You have said : PERSON has abused power . Is it a question or a statement ?

M.P .:- He has obviously abused power because as the Speaker of the PERSON he had access to the media and gave false information ; the fact that he is a liar I can prove – if necessary DATE in court . I authorise you to print this text . If PERSON says that he is not a liar , I will prove the contrary in court !

‘ A’:-What do you think about the fact that the Member of Parliament PERSON GPE applied to ORG ?

M.P.:- It is for the court to decide , in every family case , with which parent the child should stay . In such cases both the parents and the child often undergo psychological and psychiatric examination – obviously upon a decision of a court . This is a typical case ; the court is to decide on the family matter of PERSON and PERSON . Therefore , both the parents and [ M.K. ] should undergo the relevant examination . This is usual , routine procedure . That , in turn , proves how diligently Mr PERSON approached this case . [ GPE ] had turned to him for help , placed trust in him . In consequence he contacted , as I know , many people , me included , but I could not dispel his doubts . I then turned ( sic ! ) [ he turned ] to specialists – psychologists . He was told by them that before they could make any decision they should talk with both the child and the parents . Then , very tactfully , he asked the Speaker [ of the PERSON ] PERSON to pass these suggestions to Mr PERSON . Only after PERSON had refused , did Mr Kołodziejczyk do what any honest and respectable person would have done : he informed a court that in the PERSON family bad things were happening . It is a lie that PERSON Kołodziejczyk ordered the examination by specialists . He can not order it ! He only asked for appropriate action to be undertaken . ( ... ) ”

Subsequently , and in connection with the above interview , disciplinary proceedings were initiated against Mr PERSON by ORG . On DATE ORG ( PERSON ) found that Mr PERSON had breached the rules of professional conduct and reprimanded him . The court reiterated that the lawyers between themselves ( Mr GPE , PERSON and his wife were all members of the Bar ) should follow the rules of politeness and friendliness . The court found that PERSON had breached those rules and had failed to express his critics in a restraint manner .

On DATE PERSON , his wife and his daughter PERSON , ( “ the plaintiffs ” ) lodged against the applicant ’s publishing house “ Westa - Druk ” a civil claim for protection of their personal rights . They maintained that the press had played a major role in the case involving their family as they “ presented the facts and judgments tendentiously , causing de facto damage to the plaintiffs . ” The plaintiffs further sought an award of ORG CARDINAL in compensation and an order requiring the defendant to publish the following apologies :

“ We apologise to the Deputy Speaker of the PERSON , PERSON , his wife PERSON PERSON and his daughter [ M.K. ] for grossly violating their personal rights by having published the article ‘ If it had been PERSON , in ORG ( ... ) , in particular , by uncritically quoting the totally irresponsible statements of Mr PERSON in which he :

- said of PERSON that he ‘ had obviously abused power’ and ‘ caused ORG in connection with the investigation conducted by ORG into the alleged kidnapping of his daughter ,

- said that Mr PERSON had been providing the media with untrue information and called him a liar ,

- imputed to PERSON and PERSON the wish to place their daughter in a psychiatric clinic , called their parenting skills into question and stated without any reason that the parents and [ PERSON ] should ‘ undergo psychiatric and psychological examination.’

We express our regret over the harm done to the injured party ” .

On DATE ORG ( Sąd Wojewódzki ) gave judgment for the plaintiffs . The court ordered the applicant to publish apologies as sought in the statement of claim and awarded the plaintiffs compensation in part , i.e. PLN CARDINAL,CARDINAL . The court stated , inter alia :

“ ... One should agree with [ the applicant ] that , being the publisher , he had the right to inform the readers about important circumstances concerning [ PERSON ] who at the material time held CARDINAL of the highest positions in the ORG . Therefore , publishing such information was not illegal despite the fact that it affected the LAW personal rights that are protected by law . The article , however , includes not only information but also statements that damaged their reputation ; i.e. their good name . The statement that PERSON and PERSON had made an unsuccessful attempt to place their daughter in a psychiatric clinic , that they do not understand and love her and that her separation from the world is in her interest , disparaged their parenting skills , and questioned their moral values .

The information that the family should have been examined by psychologists and psychiatrists had also harmed them in the eyes of others .

It concerns in particular the parents of Ms [ GPE ] who at that time held important positions and the state of their mental health should not have been an object of public discussion . Finally , calling PERSON a liar and stating that he had abused power , obviously harmed his good name and exposed him to the loss of trust of his voters and of the leaders of the party of which he was a member . Therefore , the [ applicant ’s ] actions were ... illegal because they breached the good name and reputation of the plaintiffs .

The court did not agree with the [ applicant ’s ] opinion that [ since ] he was not the author of the quoted statements , he was not obliged to check the truthfulness of the information included in the interview with PERSON ... ”

On DATE the applicant lodged an appeal with ORG . He alleged , inter alia , that the court had infringed his freedom of expression in breach of LAW , as it had overstepped the margin afforded to it and violated the principle of proportionality between the legitimate aim pursued and the measures applied . The interference with his right was particularly striking as the case concerned a politician who should have been more tolerant of criticism . The applicant further argued that PERSON himself had made public information concerning his private life by giving statements concerning the alleged kidnapping of his daughter in the television and the press .

Mr PERSON , who joined the proceedings as an intervener ( interwenient uboczny ) , also lodged an appeal .

On DATE ORG found that the applicant had sullied the good name of the plaintiffs . It amended the judgment in so far as the text of the apology to be published was concerned and increased the sum to be paid by the applicant to all plaintiffs by way of costs and expenses to ORG CARDINAL,CARDINAL . It upheld the remainder of the judgment . The applicant was to publish the following apology :

“ We apologise to PERSON , his wife PERSON and daughter [ PERSON ] . for breaching their personal rights by the publication entitled « if it had been quiet » in particular by citing the statements made by the lawyer PERSON in which he referred to the GPE parenting skills and gave his opinion as to their family life , and called the first plaintiff a liar . ”

The appellate court stated :

“ ... ORG based its judgment on the following findings :

In DATE a strong conflict erupted between [ GPE ] and her parents on the ground of her contacts with PERSON . [ M.K. ] regarded PERSON as a person friendly to her and a moral authority . That influenced the loosening of her relationship with her parents . Finally , in DATE [ M.K. ] left with PERSON . She did not inform her parents of her whereabouts and did not contact them .

The plaintiff , PERSON , in a television address made an appeal for help in finding his daughter ; he also informed ORG that a crime has been committed under LAW .

ORG instituted proceedings on charges of kidnapping and false imprisonment of GPE In the course of these proceedings PERSON ORG –Gąsior was arrested and the apartment and house of GPE ’s family was searched . The defence counsel of PERSON was Mr GPE ”

ORG found that the statement that Mr PERSON had abused power was within the justifiable bounds of criticism since public opinion was particularly sensitive to all aspects of abuse of power , and the opinion about Mr PERSON was given by a professional i.e. a lawyer ; therefore , it did not require verification by the publisher . The allegation of abuse of power was also justified given the extraordinary actions undertaken by PERSON PERSON in a private matter . Following the case - law of ORG relating to LAW , a politician should show more tolerance when exposed to criticism than private persons . Then the court stated as follows :

“ It is a different matter , however , with regard to the allegation that PERSON PERSON was a liar . It is obvious that this description does not have the character of a legal opinion . What is more , the context of the statement does not clarify in relation to what case the plaintiff was alleged to have lied . It was thus a generality suggesting regular untruthfulness on the part of the plaintiff . The explanations for this statement provided by Mr PERSON later in the course of trial can not be of particular importance since the published text , and in the form in which it reached the readers , did not include them . This description should then be considered as an ordinary and unjustified epithet [ epitet ] . In this case the publisher can not be discharged of the responsibility for besmirching the plaintiff ’s good name either on the ground that the author of the statement was a lawyer , because he had not spoken as a professional , or because of the fact that publication was in the form of an interview as , unlike radio or television interviews , it was not a live broadcast and the publisher had the means , by acting with due diligence , to prevent the breach of the plaintiff ’s personal rights by this statement . Moreover , it can not be inferred from the fact that the plaintiff held a public function , so that he agreed there should be a wider limit of permissible criticism of him , or from the fact that he himself made a public appeal for help in finding his daughter , that he had agreed to publication of all free opinions and comments on this subject , including those breaching his personal rights . Given the above described character of the statement , it should be regarded as an evaluation ( ocenna ) that can not be verified as true or false and in any case can not [ be seen ] as a negative assessment of the plaintiff ’s actions within the meaning of LAW . In this case the publisher is not protected by LAW as paragraph CARDINAL of this Article limits the right of freedom of expression when protecting , inter alia , the reputation of others .

For these reasons ORG considered the appeals of the [ applicant ] and the intervener manifestly ill - founded .

Both appeals are equally unjustified in what they say about the judgment referring to a breach of the first plaintiff ’s personal rights by statements about his family life .

Neither the fact that the first plaintiff had himself introduced the events of his private life into the public sphere by making the address for help in finding his daughter ( even if one can consider such an appeal as agreement to publication of information from a private sphere within the meaning of LAW ) nor the fact that as a person holding a public function he was a subject of particular interest to the press authorised the publisher to breach his personal rights by putting into question his mental health and parenting skills .

One can not infer that the plaintiff waived his right to legal protection by the fact that he had subjected himself to public comments on his family matters . It should be underlined that information concerning family life , and even unfavourable comment , does not have to breach personal rights . In this publication the limits of fair criticism and cultural expression had been overstepped . As with the allegation that the first plaintiff was a liar , the publisher is not protected by the fact that he had been quoting the statements of a lawyer who was obliged to exercise strict control over what he said , because matters concerning the family life of the first plaintiff did not have the nature of a legal opinion and the interview itself was not broadcast “ live ” .

Moreover , commenting in this manner on the plaintiff ’s family life was not covered by a socially justified interest and did not concern the political activity of the plaintiff .

In addition it should be said that entering into issues concerning the family sphere , in particular the relationship between parents [ and children ] , if only because of the impossibility to verify the assessments made in this respect , is always unlawful , even if the information given is true ( see judgment of ORG , DATE ) . ”

The applicant and the intervener each lodged cassation appeals with ORG ( Sąd Najwyższy ) .

On DATE ORG dismissed the cassation appeals and ordered the applicant to pay Mr Kern PLN CARDINAL for costs and expenses . It agreed with the assessment of the lower courts that in the present case the interference with the freedom of press was justified by the need to protect the reputation of the plaintiffs . ORG also dismissed the applicant ’s arguments that his intention was to report on a case that had shocked the majority of public opinion . The court was of the opinion that publishing an article in which the lawyer of the other party subjectively analysed very delicate family matters and offered categorical judgments on their causes , was not the right way to protect a justified public interest .

It appears that subsequently the judgment was enforced in so far as the payment of compensation was concerned . As regards the publishing of the apologies , the enforcement proceedings are pending .

Article CARDINAL of the Civil Code contains a non - exhaustive list of the rights known as “ personal rights ” ( dobra osobiste ) . This provision states :

“ The personal rights of an individual , such as in particular health , liberty , reputation ( cześć ) , freedom of conscience , name or pseudonym , image , secrecy of correspondence , inviolability of the home , scientific or artistic work , [ as well as ] inventions and improvements shall be protected by the civil law regardless of the protection laid down in other legal provisions . ”

Article CARDINAL of the Civil Code provides for ways of redressing infringements of personal rights . According to that provision , a person facing the danger of an infringement may demand that the prospective perpetrator abandon the wrongful activity , unless it is not unlawful . Where an infringement has taken place , the person affected may , inter alia , request that the wrongdoer make a relevant statement in an appropriate form , or demand satisfaction from him / her . If an infringement of a personal right causes financial loss , the person concerned may seek damages .

Article CARDINAL ( CARDINAL ) of LAW of DATE provides as follows :

“ Information and data concerning the private sphere of life of an interested person shall not be published , unless they are connected directly with the public activity of that person . ”

LAW states :

“ Civil responsibility for infringement of the law caused by the publication of press material is accepted by the author , editor or other person who had the material published ; this does not exclude the responsibility of the publisher . In respect of financial liability the said persons take joint responsibility . ”

Article CARDINAL of LAW provides :

“ In the event of an intended infringement of the personal rights of an individual by the publication of the press materials , and in particular in the event of an infringement of LAW ( CARDINAL ) , a court may grant the injured person compensation for damage suffered . ”


The applicant , PERSON , is a NORP national who was born in DATE and lives in ORG .

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

In DATE the applicant settled , together with his parents , in GPE . In DATE he married a NORP national ( born in GPE , GPE ) who holds a permanent residence permit in GPE . Their son , born in DATE , is a NORP national and holds a permanent residence permit . The family lived in the city of ORG , separated by the border river Narva from the NORP city of Ivangorod .

In DATE , having failed the LANGUAGE language exam required for acquiring NORP nationality , the applicant opted for NORP citizenship . DATE he was employed in Ivangorod where he also had his registered residence . DATE ( according to the applicant ) or DATE ( according to the NORP authorities ) to DATE he visited his family in GPE . The applicant 's parents live in GPE , GPE ; they are NORP nationals .

On DATE the applicant was taken into custody on a criminal charge . On DATE , he was convicted of the unlawful possession of a firearm and sentenced to DATE imprisonment by ORG ( PERSON ) . On DATE ORG ( PERSON ) reduced the sentence to DATE imprisonment , upholding the rest of the judgment .

On DATE the applicant was convicted of aggravated hooliganism involving the use of a weapon , causing serious bodily injury in excess of self - defence and intentionally causing light bodily injury by ORG . He was sentenced to DATE imprisonment .

On DATE ORG convicted the applicant of extortion and of the repeated offence of unlawful possession of a firearm . He was sentenced to DATE and DATE imprisonment . The aggregate sentence of imprisonment , which included the unserved part of the previous sentence , was set at DATE , DATE and DATE .

On DATE ORG quashed ORG judgment of CARDINAL DATE in part . On DATE ORG ( NORP ) partly quashed the appeal court 's judgment and referred the case back to ORG . On DATE ORG quashed ORG judgment of CARDINAL DATE in part and determined that DATE , DATE and DATE , during which the applicant had been detained on remand should be considered as having been served . The sentence still to be served was DATE .

In sum , the applicant was held in preliminary detention and detained after conviction in CARDINAL separate criminal cases from DATE to DATE . His wife visited him in prison .

On DATE the Minister of the ORG refused a request by the applicant for a temporary residence permit in GPE because of his criminal convictions . The Minister relied on sections CARDINAL ) and CARDINAL ) of LAW ( PERSON seadus ) . The Minister also referred to the fact that the applicant had maintained ties with his country of nationality and that all members of his family were NORP nationals , having a possibility to move to that country .

In DATE the applicant 's wife gave birth to their second child . The family lives in Narva together with the parents of the applicant 's wife in the parents ' apartment .

On DATE ORG ( PERSON NORP ) annulled the order of the Minister of the Interior . On DATE ORG ( Tallinna GPE ) upheld the Minister 's appeal . It found that the refusal to grant a residence permit had been lawful . On DATE ORG refused the applicant leave to appeal .

Section CARDINAL(CARDINAL ) of the Foreigners ' Act lists the instances in which a residence permit can not be issued or extended . Section CARDINAL(CARDINAL)(CARDINAL ) provides that a permit can not be issued or extended , if the foreigner applying for it has been convicted of a criminal offence and sentenced to imprisonment for a term exceeding DATE and his or her criminal record has neither expired nor been expunged , or the information concerning the punishment has not been expunged from the punishment register . According to section CARDINAL(CARDINAL)(CARDINAL ) , a residence permit is denied to persons who have been repeatedly punished for intentional criminal offences . Section CARDINAL(CARDINAL ) of the Foreigners ' Act , however , provides that , as an exception , a temporary residence permit may be issued or extended for the foreigner concerned , if this is not excluded on any other ground listed in the same provision .