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

In DATE the applicant sued the communication department of ORG of ORG for social benefits provided to former military officers by law .

On DATE the ORG of PERSON accepted the applicant 's action in part and awarded him MONEY ( ORG , MONEY ) . The judgment was not appealed against and became final .

On DATE ORG issued the applicant with a writ of execution . It also sent a copy of the writ to the defendant .

NORP In DATE the writ of execution was returned to ORG because the defendant did not have funds to enforce the judgment .

On DATE a bailiff instituted enforcement proceedings .

On DATE the applicant was paid ORG .


Violation of Art. 8;No violation of Art. 14+8;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

The applicant , a NORP national born in DATE , lives in GPE . He is the father of the child , C. , born out of wedlock on DATE . On CARDINAL DATE he acknowledged paternity and undertook to pay maintenance for C. He fulfilled this obligation regularly .

Since DATE the applicant had been living with the child 's mother and her elder son PERSON . In DATE the mother , together with the CARDINAL children , moved out of the flat . The applicant continued to see his son frequently until DATE . On several occasions , he also spent his holidays with the CARDINAL children and their mother . Subsequently , no more visits took place .

The applicant attempted to visit his son with the assistance of ORG ( ORG ) , acting as mediator . When questioned by an official of ORG at his home in DATE , PERSON stated that he did not wish to have further contacts with the applicant .

On DATE the applicant applied to ORG ( ORG ) for a decision granting him a right of access ( GPE ) to C. on DATE , QUANTITY The applicant maintained that the mother had refused him access to C. because he had accused her of having failed to ensure the supervision of the child when he had broken his arm in a playground accident in DATE and as a result of which he had stopped the voluntary DATE payments of MONEY which he claimed to have made at the mother 's request in addition to the stipulated child maintenance . The mother contested the applicant 's submissions . She stated that the applicant had always been very generous to her but that he had not paid her any maintenance .

ORG , after a hearing on DATE and having heard C. on DATE , dismissed the applicant 's request on DATE . The court observed that Article CARDINAL § CARDINAL of LAW ( Bürgerliches Gesetzbuch ) concerning the father 's right to personal contact with his child born out of wedlock ( see paragraph CARDINAL below ) was conceived as an exemption clause which had to be construed strictly . Thus , the competent court should order such access only if this was advantageous and beneficial for the child 's well - being . According to the court 's findings , these conditions were not met in the applicant 's case . ORG noted that the child had been heard and had stated that he no longer wished to see his father who , according to the child , was bad and had beaten his mother repeatedly . The mother likewise had strong objections to the applicant which she had imparted to the child , so that the child had no possibility of building an unbiased relationship with his father . ORG concluded that contacts with the father would not enhance the child 's well - being .

On DATE the applicant applied to ORG for an order requiring the child 's mother to consent to a family therapy for him and the child and for an order determining his right of access after contacts with his son had successfully resumed .

On DATE ORG recommended that the court should obtain a psychological expert opinion on the question of access rights .

Having heard C. on DATE and his parents at an oral hearing on DATE , ORG dismissed the applicant 's renewed request to be granted access on DATE .

In so doing , the court referred to its prior decision of CARDINAL DATE and found that the conditions under LAW were not met . It noted that the applicant 's relationship with the child 's mother was so strained that the enforcement of access rights could not be envisaged as this would not be in the interest of the child 's well - being . The child knew about his mother 's objections to the applicant and had adopted them . If PERSON were to be with the applicant against his mother 's will , this would put him into a loyalty conflict which he could not cope with and which would affect his well - being . The court added that it was irrelevant which parent was responsible for the tension ; it placed particular emphasis on the fact that important tensions existed and that there was a risk that any further contacts with the father would affect the child 's undisturbed development in the family of the custodial parent . After CARDINAL long interviews with the child , ORG reached the conclusion that his development would be endangered if the child had to take up contact with his father contrary to his mother 's will . At these interviews the child had called his father “ nasty ” or “ stupid ” , adding that on no account did he wish to see him and said also : “ PERSON always says PERSON is not my father . PERSON is afraid of PERSON . ”

ORG furthermore considered that the facts of the case had been established clearly and exhaustively for the purposes of Article CARDINAL of LAW . It therefore found it unnecessary to obtain an expert opinion .

On DATE the applicant , represented by counsel , lodged an appeal ( Beschwerde ) against this decision , requesting that that decision be quashed , that an expert opinion be obtained on the questions of access and of the child 's true wishes in this respect , and that the father 's access rights be determined accordingly .

On DATE ORG ( Landgericht ) , without a hearing , dismissed the applicant 's appeal . In so doing , it first stated that there were doubts on the admissibility of the appeal as the applicant , by letter of CARDINAL DATE , had informed the court of first instance that he would respect that court 's decision , and had requested help in order to reach a friendly settlement . Furthermore , ORG found that the grounds of appeal contained in his submissions did not fully coincide with the request addressed by the applicant to the court of first instance .

ORG , however , left open the question of whether or not the appeal was inadmissible and decided that in any event the applicant 's request for access rights had to be dismissed as access was not in the interests of the child 's well - being . It was not sufficient that such contacts were compatible with the child 's well - being ; they had to be advantageous and beneficial ( nützlich und förderlich ) , and necessary for the child 's equilibrium ( seelisch notwendiginter alia , the reasons for which the father wished to have contacts with the child , that is , whether his motives were emotional or based on other factors . In this context the relationship between the parents had to be taken into account as well .

ORG concluded , in line with the decision appealed against , that the tensions between the parents had a negative effect on the child , as was confirmed by the hearings with the child held on DATE and DATE , and that contact with his father was not therefore in the child 's best interest , even less so because this contact had in fact been interrupted for CARDINAL . It was irrelevant who was responsible for the break - up of life in common . What mattered was that in the present situation contact with the father would negatively affect the child . This conclusion , in ORG view , was obvious , which was why there was no necessity of obtaining an opinion from an expert in psychology . Moreover , Article CARDINAL § CARDINAL of LAW did not provide for a psychological therapy to prepare a child for contact with his or her father . ORG finally observed that there was no necessity to hear the parents and the child again since there was no indication that any findings more favourable for the applicant could result from such a hearing .

On DATE a panel of CARDINAL judges of ORG ( Bundesverfassungsgericht ) refused to entertain the applicant 's constitutional complaint ( ORG ) .

According to ORG , the complaint did not raise any issues of a general character affecting the observance of the LAW . In particular , the question of whether LAW was compatible with the right to family life as guaranteed by LAW ) did not arise , as the ordinary courts had based the denial of the applicant 's request for access rights not only on the ground that such a right would not serve the child 's well - being , but also on the much stronger reason that it was incompatible with the child 's well - being . Furthermore , the right to a fair hearing was not violated by the fact that the applicant had not been heard personally and that his request to obtain an expert opinion had been rejected .

The statutory provisions on custody and access are to be found in the NORP Civil Code ( ORG ) . They have been amended on several occasions and many were repealed by the amended PERSON on Family Matters ( Reform zum Kindschaftsrecht ) of DATE ( ORG ( PERSON - BGBl ) DATE , p. CARDINAL ) , which came into force on DATE .

Article CARDINAL § CARDINAL reads as follows :

“ The father and the mother have the right and the duty to exercise parental authority [ elterliche PERSON ] over a minor child . The parental authority includes the custody [ Personensorge ] and the care of property [ Vermögenssorge ] of the child . ”

Pursuant to LAW , as amended , the parents of a minor child born out of wedlock jointly exercise custody if they make a declaration to that effect ( declaration on joint custody ) or if they marry . According to LAW , as amended , a child is entitled to have access to both parents ; each parent is obliged to have contact with , and entitled to have access to , the child . Moreover , the parents must not do anything that would harm the child 's relationship with the other parent or seriously interfere with the child 's upbringing . The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise , also with regard to third parties ; and they may order the parties to fulfil their obligations towards the child . The family courts can , however , restrict or suspend that right if such a measure is necessary for the child 's welfare . A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child 's well - being would be endangered . The family courts may order that right of access be exercised in the presence of a third party , such as a ORG authority or an association .

Before the entry into force of the amended Law on Family Matters , the relevant provision of the Civil Code concerning custody and access for a child born in wedlock was worded as follows :

“ CARDINAL . A parent not having custody has the right to personal contact with the child . The parent not having custody and the person having custody must not do anything that would harm the child 's relationship with others or seriously interfere with the child 's upbringing .

NORP The family court can determine the scope of that right and can prescribe more specific rules for its exercise , also with regard to third parties ; as long as no decision is made , the right , under LAW , of the parent not having custody may be exercised throughout the period of contact . The family court can restrict or suspend that right if such a measure is necessary for the child 's welfare .

A parent not having custody who has a legitimate interest in obtaining information about the child 's personal circumstances may request such information from the person having custody in so far as this is in keeping with the child 's interests . The guardianship court shall rule on any dispute over the right to information .

NORP Where both parents have custody and are separated not merely temporarily , the foregoing provisions shall apply mutatis mutandis . ”

NORP The relevant provisions of LAW concerning custody of and access to a child born out of wedlock were worded as follows :

“ Custody over a minor child born out of wedlock is exercised by the child 's mother ... ”

“ CARDINAL . NORP The person having custody of the child shall determine the father 's right of access to the child . LAW , second sentence , applies by analogy .

NORP If it is in the child 's interests to have personal contact with the father , the guardianship court can decide that the father has a right to personal contact . Article CARDINAL § CARDINAL applies by analogy . The guardianship court can change its decision at any time .

The right to request information about the child 's personal circumstances is set out in LAW .

Where appropriate , the youth office shall mediate between the father and the person who exercises the right of custody . ”

Like proceedings in other family matters , proceedings under former Article DATE § CARDINAL of LAW were governed by LAW ( PERSON über die ORG der freiwilligen PERSON ) .

According to section CARDINAL of that Act , the court shall , ex officio , take the measures of investigation that are necessary to establish the relevant facts and take the evidence that appears appropriate .

NORP In proceedings regarding access , the competent youth office has to be heard prior to the decision ( section CARDINAL(CARDINAL)(k ) ) .

As regards the hearing of parents in custody proceedings , section CARDINAL ) stipulates that the court shall hear the parents in proceedings concerning custody or the administration of the child 's assets . In matters relating to custody , the court shall , as a rule , hear the parents personally . In cases concerning placement into public care , the parents shall always be heard . According to paragraph CARDINAL of section CARDINALa , a parent not having custody shall be heard except where it appears that such a hearing would not contribute to the clarification of the matter .


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

The applicants are all NORP nationals . Details as to their names are indicated in the appended table . All of them are represented before the ORG by the Sed Lex Constanţa Financial Trade Union ( “ the Union ” ) , which has its headquarters in GPE .

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

On DATE the Union , on behalf of its members ( the applicants ) , filed a petition against their employer , a ORG agency , namely ORG , asking to have their entitlement to certain wage - related rights acknowledged . More specifically , relying on section CARDINAL(CARDINAL ) ( c ) and ( d ) of LAW ( Law no . CARDINAL ) , they asked for CARDINAL allowances to be added to their basic salary , namely a grade supplement and a supplement related to their salary step . The applicants quantified each of these supplements at PERCENT of the basic salary .

The aforesaid allowances were to be paid retroactively , starting from DATE , and correspondingly updated in line with the inflation index . The amounts were to be paid for the whole duration of the employment contract .

The employer dismissed the petition as ill - founded , in so far as the legislation did not allow the payment of the allowances in question ; moreover , the budget allocated to the payment of salary entitlements did not include the allowances and in any event , a regional department of public finance was not competent to decide on budgetary matters .

On DATE the applicants contested that decision before ORG . They contended that even though , in accordance with Government Emergency Ordinance no . CARDINAL/CARDINAL , the application of the provisions granting them the rights in question had been suspended until DATE , the suspension did not mean the extinction of the rights , and in any event , the suspension was in breach of Articles CARDINAL and CARDINAL of the LAW ; therefore , the allowances claimed were to be paid retroactively , from DATE .

The applicants also invoked LAW No . CARDINAL to the LAW , alleging that their right to obtain the allowances in issue was a “ possession ” within the meaning of that Article .

In support of their claims and referring also to Articles CARDINAL and CARDINAL of the LAW and the case of PERSON GPE ( no . CARDINAL ) ( no . CARDINAL/CARDINAL , ORG DATE ) , the applicants invoked the case - law of other courts of appeal in GPE , which had granted the requested allowances to their fellow public servants across the country . The applicants made specific reference to judgments given in DATE by ORG , ORG and the Caraş - Severin County Court , which had all become final after being upheld on appeal by the corresponding courts of appeal .

On DATE ORG dismissed the applicants’ claim . The court acknowledged that the CARDINAL supplements claimed were provided for by law , albeit without any indication of a precise amount . In fact , none of the subsequent legal texts regulating civil servants’ salary entitlements made any reference to a method or criteria for determining the amount of each of the supplements .

Therefore , even though PERSON no . CARDINAL expressly provided that a civil servant ’s salary also included the grade supplement and the salary - step supplement , the determination of the corresponding amounts was not possible . Consequently , the court held :

“ For the calculation of the CARDINAL allowances , as components of public LOC salaries , explicit legal rules for the application of section DATE ) ( c ) and ( d ) are necessary , and this task belongs either to the legislative power , in the event that a law is passed , or to the executive power , in the event that a decision for the application of the law is delivered . ”

The court further considered that to grant the allowances in the absence of precise criteria for their calculation would mean obliging the employer to pay sums that were impossible to calculate , and thus delivering a judgment that was impossible to enforce ; on the other hand , the potential calculation of those allowances by the court would mean encroaching on the powers of the administrative authorities and completely disregarding ORG case - law to the effect that :

“ the courts do not have jurisdiction to repeal or to refuse to apply specific normative acts which they consider to be discriminatory , and thus to replace them with norms created by judicial intervention or with provisions contained in other normative acts . ”

With respect to the allegations raised under LAW No . CARDINAL to the LAW , the court held that the applicants could not claim to have a possession , in so far as their requests had never been allowed or confirmed by the courts in a final judgment .

The applicants appealed against that judgment before ORG , reiterating their arguments submitted before the first - instance court . They again referred to the fact that several other courts across the country had already granted the allowances in issue to colleagues of theirs , meaning that by denying them the right to also receive the allowances , ORG had discriminated against them in relation to other public servants , in violation of Articles CARDINAL and CARDINAL of the Convention and LAW No . CARDINAL .

In addition , they stated that the allowances were provided for by law , and that their right to receive them had been confirmed by the first - instance court , which had nonetheless decided not to grant the allowances in the absence of criteria for their calculation .

The applicants further mentioned that their lack of financial means and the defendant ’s omission to include the related costs in the budget could not be held against them in order to deprive them of the CARDINAL allowances in question , to which they were entitled by law .

When asked to comment on the judgment given on DATE by ORG and ORG on an appeal in the interests of the law , in which it held that the CARDINAL allowances in question could not be granted by the judiciary , the ORG representative stated that he was not able to give an opinion on the issue .

On DATE ORG dismissed the applicants’ appeal .

The court noted that according to the above - mentioned judgment given by ORG and ORG , in the absence of a legal determination of their amount , the grade allowance and the allowance relating to the salary step could not be granted by the judiciary .

In so far as ORG interpretation of the law , as set out in the decision given in the appeal in the interests of the law , was obligatory , the court was bound to follow ORG ruling and thus to dismiss the ORG claims as ill - founded .

LAW entered into force on DATE , once PERSON no . CARDINAL had been enacted . On DATE section CARDINAL of the Statute was amended to provide that , starting from that date , certain allowances were to be included in the salaries of public servants :

“ CARDINAL . For discharging their activities public servants have the right to a salary composed of the following :

( a ) basic salary ;

( b ) seniority allowance ;

( c ) grade allowance ;

( d ) step allowance .

Public servants shall be granted bonuses and other salary rights , in accordance with the law .

The remuneration of public servants shall take place in accordance with [ the criteria ] prescribed in the law on the implementation of a unitary remuneration system concerning public servants . ”

On DATE , point ( d ) was amended to read “ allowance corresponding to the salary step ” . With effect from DATE , section CARDINAL became section CARDINAL , while no amendments were made to the content .

The application of these provisions was suspended from DATE until DATE , firstly by PERSON no . CARDINAL of CARDINAL DATE , then by Government Emergency Ordinance no . CARDINAL/CARDINAL , enacted as PERSON no . CARDINAL/CARDINAL , and then by Government Ordinance no . CARDINAL/CARDINAL , enacted as LAW no . CARDINAL/CARDINAL .

With effect from DATE , the CARDINAL allowances , namely the grade supplement and the allowance corresponding to the salary step , were abolished by PERSON no . CARDINAL/CARDINAL , which itself was repealed on DATE .

Starting with DATE , a divergent case - law emerged across the country concerning the granting of the grade supplement and of the allowance corresponding to the salary step .

It is why on CARDINAL DATE , in order to ensure the uniform interpretation and application of the law , the Prosecutor General applied to ORG and ORG , in accordance with the provisions of LAW .

In the judgment delivered on CARDINAL DATE , ORG confirmed the existence of a divergence in the case - law concerning the interpretation of section CARDINAL(CARDINAL ) ( c ) and ( d ) of PERSON no . CARDINAL , on the granting of allowances to public servants . ORG held that the entitlements claimed did not constitute a “ possession ” within the meaning of LAW , being only “ virtual rights ” in the absence of criteria for their calculation ; it consequently held that :

“ for the uniform interpretation and application of section CARDINAL(CARDINAL ) ( c ) and ( d ) of PERSON no . CARDINAL , ORG holds that in the absence of a legal determination of their amount , the grade allowance and the allowance relating to the salary step can not be granted by the judiciary . ”

ORG interpretation of the provisions in question is binding on all the domestic courts . A decision delivered on an appeal in the interests of the law can not alter the outcome of cases already decided .


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

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

The applicant and his former wife had a house in GPE , GPE . They built the house while married and were considered joint owners , although the applicant was the sole registered owner . On DATE he allegedly gave the house as gift to his former wife but they did not report the conveyance to the land registry . He remained the sole registered proprietor .

In DATE the house was mined by unknown perpetrators .

On DATE the applicant obtained a divorce from his wife .

On DATE his former wife instituted civil proceedings before ORG ( PERSON ) seeking damages from GPE for the destroyed house .

On DATE the defendant submitted that the applicant was the registered owner of the house and that his former wife therefore had no locus standi in the proceedings .

On DATE the applicant 's former wife submitted that she had received the house as gift from him in DATE .

Pursuant to ORG ( LAW DATE ( Zakon o izmjeni PERSON o obveznim odnosima ) , ORG stayed the proceedings on DATE .

Pursuant to the Damage from Terrorist Acts and Public Demonstrations Act DATE ( Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija ) , the proceedings resumed on DATE .

The applicant has submitted a document from which it appears that his former wife and he agreed to annul the above - mentioned contract to gift the house on DATE .

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

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

The relevant parts of LAW CARDINAL ( Zakon o izmjeni PERSON o obveznim odnosima , ORG no . CARDINAL/CARDINAL , hereinafter “ the DATE LAW ) read as follows :

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

“ Proceedings for damages instituted under LAW shall be stayed .

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

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

“ Proceedings shall be stayed :

( CARDINAL ) where another statute so prescribes . ”

The Damage from Terrorist Acts and Public Demonstrations Act DATE ( Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija , ORG no . CARDINAL ) provides , inter alia , that GPE is to provide compensation in relation to damage resulting from bodily injury , impairment of health or a death . All compensation for damage to property is to be sought under LAW .

The relevant parts of LAW ( Zakon o obnovi , ORG nos . CARDINAL , CARDINAL , CARDINAL/CARDINAL and CARDINAL ) provide that the means for reconstruction are to be granted to persons whose property was destroyed in the war . The request is to be submitted to ORG , Reconstruction and Construction ( ORG radove , obnovu i graditeljstvo ) .


The first applicant , Mr DATE , is an NORP national who was born in DATE . The second applicant , Mr PERSON , is a NORP national who was born in DATE . Both of the applicants live in GPE . They were represented before the ORG by PERSON , a lawyer practising in GPE .

On DATE the applicants were convicted of crimes against humanity under LAW ( PERSON ) by ORG ( ORG ) . They were sentenced to DATE suspended imprisonment with a probation period of DATE . It was stated in the judgment that the applicants had , in DATE , participated in the deportation of the civilian population from the occupied GPE to remote areas of GPE .

– The first applicant had served at the relevant time as an investigator in ORG of the NORP Soviet Socialist Republic ( SSR ) . He had participated in the preparation of the deportation operation “ Priboi ” and drawn up documents concerning the deportation of CARDINAL families . He had made proposals for the deportation of CARDINAL persons . After the deportation operation had been carried out on DATE , he had drawn up further documents concerning the deportation .

– The second applicant had served at the relevant time as an inspector in ORG of the NORP SSR . On DATE he had participated , in his capacity as head of a task force , in the deportation of a family and had filled out a questionnaire concerning the family and organised the deportation of CARDINAL persons .

ORG referred in its judgment to LAW and LAW ( Karistusseadustik ) , under which crimes against humanity were punishable irrespective of the time of commission of the offence . It noted that , since crimes against humanity were punishable also under LAW , which had replaced the old LAW as of DATE , the charges against the applicants had been brought correctly under LAW . In this context , reference was made to section CARDINAL(CARDINAL ) of LAW Act ( GPE rakendamise seadus ) , pursuant to which LAW had to be applied in such cases . Furthermore , ORG relied on ORG judgment of DATE in the PERSON case and referred to LAW for the Former GPE and ORG on the Non - Applicability of LAW and Crimes against Humanity ( the “ Convention ” ) .

The applicants’ lawyer lodged appeals against ORG judgment with ORG ( Tallinna GPE ) . He alleged , inter alia , that at the material time LAW of GPE ( SFSR ) had been applicable in the territory of GPE . That Code had not provided for punishment of crimes against humanity . Criminal responsibility for crimes against humanity had been established only in DATE by amendments to LAW . With reference to LAW , the ORG lawyer argued that ORG had not established whether the deportation had been a crime against humanity under international and domestic law in DATE or whether the applicants had had the possibility of foreseeing , at that time , that they were committing an offence .

On DATE ORG upheld the judgment of ORG . It noted that crimes against humanity were punishable , irrespective of the time of the commission of the offence , pursuant to both LAW and LAW . It made reference to ORG judgment in the PERSON case and referred to LAW , under which generally recognised principles and rules of international law were an inseparable part of the NORP legal system . It relied on the same provisions of LAW and LAW as ORG . It further noted that LAW did not prevent punishment of a person for an act which , at the time of its commission , had been criminal according to the general principles of law recognised by civilised nations . Deportations perpetrated by the applicants had been considered crimes against humanity by civilised nations in DATE . Such acts had been defined as criminal in LAW ) of the LAW of ORG ( Nuremberg Tribunal ) and affirmed as principles of international law by ORG of ORG on DATE in its resolution CARDINAL . The court was of the opinion that the Charter of ORG and also LAW for the Former GPE enshrined norms of customary international law which were binding irrespective of whether a particular ORG had acceded to an international human rights treaty . ORG found that by filling out the documents concerning deportation , removing people from their homes and handing them over to a ship assigned for deportation , the applicants had participated in a widespread attack against the civilian population in the context of the deportation operation “ Priboi ” .

On DATE ORG ( NORP ) refused the applicants leave to appeal .

LAW ( ORG põhiseadus ) stipulates that generally recognised principles and rules of international law are an inseparable part of the NORP legal system .

LAW reads as follows :

“ No one shall be convicted of an act which did not constitute a criminal offence under the law in force at the time the act was committed . ”

The relevant provisions of LAW ( PERSON ) , as in force at the material time , provided :

“ Crimes against humanity and war crimes ( Articles CARDINAL - CARDINAL to CARDINAL - CARDINAL ) shall be punishable regardless of the time of commission of the crime . ”

“ Crimes against humanity , including genocide , as these offences are defined in international law , that is , the intentional commission of acts with the aim of full or partial extermination of a national , ethnic , racial or religious group , a group resisting an occupation regime , or other social group , the murder of , or the inflicting of extremely serious or serious bodily or mental harm or acts of torture on a member of such group , the forcible taking of children , armed attack , the deportation or expulsion of the native population in the case of occupation or annexation and the deprivation or restriction of economic , political or social human rights , shall be punished by DATE imprisonment or life imprisonment . ”

LAW ( Karistusseadustik ) , which entered into force on DATE , provides :

“ No one shall be convicted or punished for an act which was not an offence pursuant to the law applicable at the time of the commission of the act . ”

“ Crimes against humanity and war crimes shall be punishable regardless of the time of commission of the offence . ”

“ Systematic or large - scale deprivation or restriction of human rights and freedoms , instigated or directed by a state , organisation or group , or the killing , torture , rape , causing of health damage , forced displacement , expulsion , subjection to prostitution , unfounded deprivation of liberty , or other abuse of civilians , shall be punishable by DATE imprisonment or life imprisonment . ”

Section CARDINAL(CARDINAL ) of LAW Act ( GPE rakendamise seadus ) reads as follows :

“ If , after entry into force of LAW , a punishment is imposed for a criminal offence committed prior to the entry into force of LAW , the punishment shall be based on the punishment provided for in the corresponding article of LAW in force at the time of the commission of the offence , in the event that the said article prescribes a lesser punishment . ”

ORG of ORG held as follows in its judgment of DATE ( case no . III-CARDINAL/A-CARDINAL/CARDINAL ) :

“ By virtue of the concept of the supremacy of international law , ORG have an obligation to comply with the norms of international law , including the norms of customary international law . ”

ORG has reiterated in several judgments that , pursuant to LAW , generally recognised principles and norms of international law are an inseparable part of the NORP legal system ( see , for example , judgment of DATE in case no . III-CARDINAL/CARDINAL - CARDINAL/CARDINAL , judgment of DATE in case no . III-CARDINAL/CARDINAL - CARDINAL , etc . ) .

ORG stated in its judgment of DATE in the PERSON case concerning the extrajudicial extermination of persons hiding from the repressions of the NORP occupation regime ( case no . CARDINAL ) :

“ CARDINAL . ... In case of a crime against humanity , the offender places himself or herself , for various reasons – first and foremost for religious , national or ideological reasons – outside of the system of values . He or she acts in order to achieve other goals ( for example ethnic cleansing ) and the attacked values – life , health , physical integrity – are , in a given context , worthless to him or her . Here the attack is not directed against a specific victim ; any person can become a victim .

The appeal proceeds from ... the concept of a crime against humanity and it is submitted that the victims hid in the woods as civilians in order to avoid repression . The occupation authorities , however , decided to deprive them of their right to a fair trial and to murder them . It was found that , therefore , there had been a crime against humanity .

ORG subscribes to the latter position and notes that deprivation of a person of his or her right to life and a fair trial may be treated like the other inhumane acts referred to in DATE ( c ) of the LAW of ORG . ... ”

The Charter of ORG ( Nuremberg Tribunal ) , annexed to LAW of DATE ( United Nations Treaty Series , vol . CARDINAL ) , provides as follows :

The following acts , or any of them , are crimes coming within the jurisdiction of the ORG for which there shall be individual responsibility :

( c ) ORG against humanity : namely , murder , extermination , enslavement , deportation , and other inhumane acts committed against any civilian population , before or during the war , or persecutions on political , racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the ORG , whether or not in violation of the domestic law of the country where perpetrated .

Leaders , organizers , instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan . ”

Resolution CARDINAL of ORG , adopted on DATE , provides :

“ ORG ... [ a]ffirms the principles of international law recognised by the LAW of ORG and the judgment of the ORG ... ”

In DATE ORG of ORG formulated the Principles of ORG , including the following :

“ The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law , provided a moral choice was in fact possible to him . ”

“ The crimes hereinafter set out are punishable as crimes under international law :

( c ) ORG against humanity : Murder , extermination , enslavement , deportation and other inhuman acts done against any civilian population , or persecutions on political , racial or religious grounds , when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime . ”

On DATE ORG adopted by resolution CARDINAL ( XXIII ) the Convention on the Non - Applicability of LAW and Crimes against Humanity ( United Nations Treaty Series , vol . CARDINAL ) . The ORG entered into force on DATE . It was ratified by GPE on CARDINAL DATE . GPE acceded to ORG . The LAW provides , inter alia :

“ No statutory limitation shall apply to the following crimes , irrespective of the date of their commission :

( b ) Crimes against humanity whether committed in time of war or in time of peace as they are defined in the LAW of ORG , GPE , of CARDINAL DATE and confirmed by resolutions CARDINAL ( I ) of CARDINAL DATE and CARDINAL ( I ) of DATE of ORG of ORG , eviction by armed attack or occupation and inhuman acts resulting from the policy of apartheid , and the crime of genocide as defined in the CARDINAL Convention on the Prevention and Punishment of the Crime of Genocide , even if such acts do not constitute a violation of the domestic law of the country in which they were committed . ”


The applicant is an NORP national , born in DATE and living in GPE ) .

He is represented before the ORG by Mr PERSON , a lawyer practising in GPE ( GPE ) .

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

The applicant is the owner of a small company ( “ LOC snc di PERSON ” ) which deals in aeroplanes and relevant spare parts .

In DATE and DATE , the applicant purchased a plot of land in the vicinity of the Guidonia airport with a view to building a hangar on it . There being no fences around the plot of land , its boundaries in respect of the Guidonia airport were not marked .

In DATE , the applicant 's company obtained a building permit from the Guidonia town council for building the hangar .

On DATE , the town council informed the applicant that his building permit had been suspended , as ORG claimed to be the legitimate owner of the plot of land .

The proceedings against ORG

As a consequence , on DATE the applicant applied to ORG , in order to have his right of property on the plot of land at issue acknowledged and the relevant boundary assessed . By a decision of CARDINAL DATE , ORG dismissed the case for lack of jurisdiction .

By a writ served on DATE , the applicant summoned ORG to appear before ORG , which , by a judgment of DATE , acknowledged the applicant 's right of property on the plot of land and assessed the relevant boundary . The court however refused the applicant ’s request to mark the boundaries of the plot of land , on the ground that , given that ORG had de facto decided to use the plot of land as a part of the airport , the marking of boundaries would have influenced this decision , which was outside the scope of jurisdiction of a civil court ( the administrative courts being exclusively competent to withdraw or amend an administrative decision ) .

The appeal lodged on DATE by ORG against this decision was rejected by ORG of appeal by a judgment issued on DATE and filed with ORG DATE .

The appeal on points of law lodged by ORG against the appellate court ’s decision was rejected by ORG by a judgment issued on DATE and filed with ORG on DATE .

The proceedings to recover possession of the plot of land

In the meantime , ORG had let the applicant 's plot of land to a farmer , PERSON

In DATE , the applicant instituted civil proceedings ( azione di reintegrazione ) against PERSON , in order to recover possession of his property .

By an interlocutory decision of CARDINAL DATE , ORG ordered PERSON to vacate the plot of land .

The proceedings were then pursued at the hearing of DATE . An expertise was carried out . ORG intervened in the proceedings claiming to have authorised PERSON to occupy the plot of land ; it claimed further that the proceedings could not be

pursued against a ORG administration .

On DATE the bailiff appointed by ORG in order to enforce the latter 's decision of CARDINAL DATE requested ORG to vacate the applicant 's plot of land ; the commanding officer refused on the ground that no relevant orders had been given by his senior officers .

By a judgment of DATE , filed with ORG on DATE , the ORG refused the applicant ’s claims , withdrew its own interlocutory decision of CARDINAL DATE and ordered the applicant to refund the GPE legal costs .

On DATE the applicant ’s company summoned ORG to appear before ORG with a view to being compensated for the financial losses incurred on account of the occupation of its plot of land .

By a judgment of DATE , ORG ruled in the applicant ’s company ’s favour and ordered ORG to pay the applicant ’s company the sum of MONEY for pecuniary damage in connection with the occupation of the plot of land .


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

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

On DATE the applicant initiated before ORG ( PERSON ) civil proceeding concerning the division of his late GPE estate . The estate consisted of CARDINAL plots of land , QUANTITY in area , and CARDINAL house .

Subsequently , the court held hearings and ordered expert opinions .

In DATE the court held hearings in DATE and DATE . Subsequently , the court ordered expert opinions and in DATE it stayed the proceedings . Upon the applicant ’s appeal the proceedings were resumed on DATE . The next hearing was held in DATE but subsequent hearings were held at more regular intervals .

DATE no hearings were held . During this period , the court ordered an expert opinion which was submitted in DATE . A hearing scheduled for DATE was cancelled and took place in DATE . Subsequently , the court ordered another expert opinion to be prepared and held the next hearing on DATE .

At least on CARDINAL occasions , in DATE and DATE , the presiding judge changed and the proceedings had to start from the beginning .

On DATE the ORG gave judgment . The court divided up the estate in question .

A party to the proceedings lodged an appeal against the judgment .

On DATE ORG ( PERSON ) dismissed the appeal .

Articles CARDINAL et seq . of ORG ( ORG cywilny ) provide for the ORG ’s liability in tort .

In the version applicable until DATE , Article CARDINAL § CARDINAL , which lays down a general rule , read as follows :

“ CARDINAL . The State Treasury shall be liable for damage caused by a ORG official in the performance of the duties entrusted to him . ”

Article CARDINAL of the Civil Code sets out limitation periods in respect of various claims based on tort . That provision applies to situations covered by Article CARDINAL of LAW . Article CARDINAL , in so far as relevant , reads :

“ CARDINAL . A claim for compensation for damage caused by a tort shall lapse DATE following the date on which the claimant learned of the damage and of the persons liable for it . However , the claim shall in any case lapse DATE following the date on which the event causing the damage occurred . ”

On DATE the Law of DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) entered into force . It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings .

A more detailed rendition of the relevant domestic law provisions is set out in the ORG ’s judgment in GPE v. GPE , no . CARDINAL , § § CARDINAL , ORG CARDINAL– ... ( extracts ) and in ORG v. GPE DATE . ) , no . CARDINAL , § § DATE , ECHR DATE ....


Violation of Art. 6-1;Violation of Art. 6-3-d

Dean Spielmann;Ganna Yudkivska;Isabelle Berro-Lefèvre;Mark Villiger

The applicant was born in DATE and serves his sentence .

In DATE the applicant moved from GPE to GPE in GPE .

On DATE a PERSON was murdered in the city of GPE , GPE . According to the applicant , the murder was committed by Mr PERSON . and the applicant only helped to transport and hide the body .

On DATE the police instituted criminal proceedings into the murder of PERSON The same day the applicant was arrested and questioned as a suspect . He showed the police the place where the decapitated corpse of PERSON was hidden .

On DATE the applicant ’s girlfriend PERSON indicated to the police the place where the head of the murdered PERSON was hidden .

The investigation conducted a number of forensic examinations and questioning , including cross - examination by the applicant of some of the witnesses .

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

On DATE Mr Gl . , who had been on the run , was arrested . The next day the applicant breached his undertaking not to abscond and left for GPE .

On DATE ORG of GPE ( GPE ) sentenced Mr DATE to fifteen years’ imprisonment for the murder of PERSON This judgment was upheld by ORG of GPE and became final on DATE .

On DATE ORG of GPE requested ORG of GPE under LAW ( “ the GPE Convention ” ) to prosecute the applicant for the crime committed on the territory of GPE , given that the applicant , a NORP national , could not be extradited to GPE .

On DATE the applicant was arrested within another set of criminal proceedings and on DATE ORG sentenced him to CARDINAL months’ imprisonment for another , unrelated offence . On DATE ORG ( ORG ) upheld that judgment .

On DATE , under the request of DATE , the applicant was charged with murder committed on the territory of GPE in DATE .

On DATE ORG , sitting as a court of first instance , held its first hearing in the criminal case against the applicant . The applicant ’s lawyer requested the court to summon and examine the witnesses who had participated in the judicial proceedings on the territory of GPE , and also Mr Gl .

ORG summoned the witnesses to appear before it on DATE and then on DATE

On DATE ORG granted the request of the applicant ’s defence counsel to cross - examine the witnesses in the criminal proceedings who lived in GPE . The court noted that some witnesses had confirmed their statements by cable and stated that they could not travel to ORG for financial reasons . The court ruled that it was necessary to examine the witnesses either in GPE or at their place of residence by a local judicial authority with jurisdiction under LAW . Taking into account lack of sufficient funds for travel and accommodation for the witnesses from the city of GPE in the city of ORG , the court opted for the international legal assistance mechanism and ordered that the appropriate NORP authorities be requested to conduct a judicial examination of the witnesses in GPE . The records of that examination would be used by ORG as evidence in the criminal case against the applicant . The court also noted that as an alternative the witnesses could be brought to ORG if the relevant authorities of GPE could cover their costs .

On DATE and DATE , under the procedure envisaged by LAW , the court lodged with ORG of GPE a request for letters rogatory to be sent to the NORP authorities in order to have CARDINAL citizens residing in GPE questioned or to ensure their appearance before the court .

NORP The questioning took place in DATE .

On DATE , having received the materials that had been requested by letters rogatory from ORG of GPE , ORG of GPE forwarded them to the court .

On DATE ORG found the applicant guilty of murder and sentenced him to CARDINAL years’ imprisonment . The court based its findings on the materials in the criminal case file received from the relevant NORP authorities and the materials obtained during the judicial examination of witnesses by the court in GPE in DATE . The court also made a separate ruling noting the unlawfulness and irregularities of certain periods of the applicant ’s detention and lack of cooperation of the NORP authorities responsible for international legal assistance .

NORP The applicant appealed in cassation complaining , among other things , that the evidence obtained in GPE was not admissible , since the applicant and his lawyers had not participated in the questioning .

On DATE ORG upheld the decision of ORG . In its decision , it stated that the applicant and his representatives had been aware of the difficulty of obtaining the attendance of witnesses from GPE and had agreed to and supported the proposal to send a request to a NORP court to have the witnesses questioned in that country , but that they had not showed any interest in attending the questioning , which they had had the right to do . In the absence of any actions on the part of the applicant and his lawyer in this matter , the court did not establish any violation of the applicant ’s right to defence .

DATE LAW provides :

“ International treaties that are in force , agreed to be binding by the Verkhovna Rada of GPE , are part of the national legislation of GPE . ”

Relevant provisions of the Code provide :

“ The procedure for communications between the courts , prosecutors , investigators , or inquiry authorities and the respective authorities of foreign GPE as well as the procedure for execution of mutual letters rogatory shall be established by legislation of GPE and international treaties to which GPE is a signatory . ”

“ Defence counsel shall use remedies available under this LAW and other legislative acts in order to ascertain the circumstances dispelling the suspicion or rebutting the charges , extenuating or excluding criminal liability on the part of the suspect , accused , defendant or convicted person , and shall provide them with the necessary legal assistance .

After having been permitted to provide legal representation in the proceedings , defence counsel shall have the right :

( CARDINAL ) to put questions in court to the defendants , victims , witnesses , and also to the expert , specialist , claimant or respondent , and to participate in the examination of other evidence ;

( CARDINAL) to adduce evidence , lodge requests or challenges , express in court his or her opinion on requests made by other participants in the judicial proceedings , appeal against acts or decisions of a person conducting an inquiry , or against those of the investigator , prosecutor , or court ; ...

( CARDINAL ) to collect information on matters which can be used as evidence in the case ; ... ”

“ Criminal evidence is any factual information on the basis of which the inquiry authority , the investigator and the court ascertain whether or not an act which is a danger to society has been committed , establish the guilt of the person who has committed the act , and any other circumstances relevant to the proper determination of the case .

Such information shall be established : from statements from witnesses , the victim , a suspect , an accused , and also from expert reports , material evidence , reports on investigative and judicial actions , reports DATE with relevant materials attached thereto – drawn up by the appropriate authorities on the results of detective and search activities , and other documents . ”

No evidence shall have a prejudicial effect on the court , prosecutor , investigator , or the person who conducts the inquiry . ”

“ Anyone known to be aware of the circumstances relating to the case may be summoned as a witness .

A witness may be questioned about the circumstances to be established in a particular case and , inter alia , about matters relating to the personality of the accused or the suspect and about the witness ’s relationships with the accused or the suspect . ”

Relevant provisions of the ORG provide :

“ CARDINAL . In executing letters rogatory for assistance in legal proceedings , the requested authority shall apply legislation of its ORG . If so requested by the requesting authority , it may also apply procedural rules of the requesting ORG ...

NORP If so requested by the requesting authority , the requested authority shall inform in timely manner the requesting authority and interested parties of the time and place of execution of the letters rogatory in order to enable them to be present at the execution of the letters rogatory in accordance with legislation of the requested ORG . ”

“ CARDINAL . The documents made or certified in the territory of CARDINAL of the Contracting Parties by the authority or duly authorised person within their competence and in due form , sealed with an official stamp , shall be accepted in the territories of the other Contracting Parties without any certification for such purposes .

The documents regarded as official in the territory of CARDINAL of the Contracting Parties shall have evidential force of official documents in the territories of the other Contracting Parties . ”

“ CARDINAL . Letters rogatory for assistance in criminal proceedings shall be drawn up in accordance with LAW .

NORP The letters rogatory shall also contain :

в ) NORP the list of questions to be clarified at the interrogation ;

“ The Contracting Parties undertake to afford each other , in accordance with the provisions of this Convention , the widest measure of mutual assistance in proceedings in respect of offences the punishment of which , at the time of the request for assistance , falls within the jurisdiction of the judicial authorities of the requesting ORG . ”

“ CARDINAL . The requested ORG shall execute in the manner provided for by its law any letters rogatory relating to a criminal matter and addressed to it by the judicial authorities of the requesting ORG for the purpose of procuring evidence or transmitting articles to be produced in evidence , records or documents .

NORP If the requesting Party desires witnesses or experts to give evidence on oath , it shall expressly so request , and the requested Party shall comply with the request if the law of its country does not prohibit it . “

“ On the express request of the requesting ORG the requested ORG shall state the date and place of execution of the letters rogatory . Officials and interested persons may be present if the requested ORG consents . “

“ CARDINAL . NORP Requests for mutual assistance shall indicate as follows :

a. the authority making the request ,

b. the object of and the reason for the request ,

c. where possible , the identity and the nationality of the person concerned , and

d. where necessary , the name and address of the person to be served .

Letters rogatory referred to in Articles CARDINAL , CARDINAL and CARDINAL shall , in addition , state the offence and contain a summary of the facts . ”

“ Evidence or documents transmitted pursuant to this Convention shall not require any form of authentication . “

Any ORG may , when signing this ORG or when depositing its instrument of ratification or accession , make a reservation in respect of any provision or provisions of the LAW . ( ... )


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

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

On DATE ORG , in proceedings concerning a claim for division of marital property of the applicant and his former wife , PERSON , changed a decision of the lower court given in the case . The court established the value of the property as being PLZ CARDINAL,CARDINAL,CARDINAL and reduced the payment to be made by the applicant to PERSON from PLZ MONEY to PLZ CARDINAL .

The applicant , considering that the court had committed errors in the calculation of the value of various components of the property , requested the Minister of ORG to lodge an extraordinary appeal against this judgment . The applicant also paid to PERSON the sums fixed by the judgment .

On DATE the Minister of ORG lodged an extraordinary appeal with ORG . The Minister argued that the courts had wrongly calculated the value of the property , in that the value of certain parts of the property had been calculated twice , once as regards their book - keeping value ( i.e. the price to be paid for replacement property items ) and then as regards their market value , and these amounts had been erroneously added . As a result , the applicant was ordered to pay amounts which exceeded by CARDINAL of old zlotys ( PLZ ) the real value of the part of the property for which his former wife had to be reimbursed .

On DATE ORG allowed the extraordinary appeal . As a result , the court quashed the second - instance decision of CARDINAL DATE and amended the decision of the lower court by establishing the value of the property as being approximately PLZ CARDINAL,CARDINAL,CARDINAL , fixing the share of each spouse at PLZ CARDINAL,CARDINAL,CARDINAL and reducing the amount that the applicant should have paid to GPE from PLZ MONEY to PLZ CARDINAL . The court considered that the Minister ’s extraordinary appeal was correct in pointing out the calculation errors committed by the lower courts .

The court went on to state that as a result of these errors the applicant ’s obligations had been increased in a manner which was obviously not justified . The contested decisions constituted a miscarriage of justice since they had granted substantial compensation involving MONEY without there being any legal or factual basis therefor . Consequently , they also breached the interests of the Republic and the decisions had to be rectified .

The applicant subsequently claimed that PERSON should pay back to him the amounts she had received on the basis of the judgment of DATE . On CARDINAL DATE the ORG gave a judgment by which PERSON was obliged to pay these amounts to the applicant . This judgment was not appealed against and became final and enforceable .

On DATE the applicant lodged a request to have enforcement proceedings instituted in respect of this judgment . As he did not pay a fee for the launching of the enforcement proceedings , he was summoned to do so . By a letter of CARDINAL DATE the applicant requested the bailiff to return the enforcement order to him . This was done on DATE . As no fee had been paid , the bailiff did not institute enforcement proceedings .

In DATE the applicant requested ORG to take steps in order to have the damage he had sustained as a result of the erroneous judicial decision compensated . He reiterated his request on DATE .

On DATE the applicant wrote a letter to the President of ORG , requesting that the damage he had suffered as a result of the erroneous judicial decision be compensated .

In a reply of DATE , he was informed that the liability of ORG , provided for by LAW , arose only if the fault of the ORG agent was confirmed by a criminal or disciplinary decision . In the light thereof , his request could not be granted .

By a letter of DATE the applicant informed ORG that his efforts to have the damage compensated had proved unsuccessful . He referred to the letter of the President of ORG , relying on LAW . He reiterated that ORG had found that the contested judicial decisions “ constituted a miscarriage of justice since they had granted substantial compensation involving MONEY without there being any legal or factual basis therefor ” . Consequently , they also breached the interests of the Republic and the decisions had to be rectified . He requested that steps be taken in order to have the damage he had suffered compensated .

This letter apparently remained unanswered .

In a letter of DATE the applicant again requested ORG to take steps in order to satisfy his claims for compensation in respect of the damage which he had sustained , having paid to PERSON the sums fixed by the judgment of DATE , which had subsequently been quashed by ORG as being in manifest breach of law .

In reply of DATE the ORG stated that the judgment of ORG did not give rise to any compensation claims against ORG . If the applicant so wished , he could raise his claims in civil proceedings . It would be for the court alone to rule on his claim .

On DATE the applicant reiterated his request to ORG . In a reply of DATE the Ministry referred to its reply of DATE .

Articles CARDINAL et seq . of ORG ( ORG cywilny ) of DATE provide for the ORG ’s liability in tort . In the version applicable until DATE , Article CARDINAL § CARDINAL read as follows :

“ CARDINAL . The State Treasury shall be liable for damage caused by a ORG official in the course of carrying out the duties entrusted to him . ”

According to the old case - law of ORG , a plaintiff seeking damages under LAW of LAW had to show that the act in question was unlawful and that the ORG agent had committed a fault ( ORG judgments : No . I PR CARDINAL/CARDINAL of CARDINAL , unpublished , No . I CR CARDINAL/CARDINAL of DATE , unpublished and No . I CR CARDINAL/CARDINAL of CARDINAL , unpublished ) .

Under the former LAW , if damage was caused by the ORG official as a result of his / her giving a decision or other official act , ORG was liable only if the giving of the said decision amounted to an infringement of the law which was punishable under criminal law or under any disciplinary regulations , and if the fault of the perpetrator had been confirmed by a judgment of a criminal court or of a competent disciplinary authority , or was otherwise recognised by a superior authority .

Under LAW , everyone is entitled to compensation for damage caused by unlawful acts of a public authority . Pursuant to LAW of the same LAW , a statute shall not bar access to court to persons seeking redress for any breach of their rights or freedoms .

LAW provides that everyone shall have the right to a fair and public hearing of his / her case , without undue delay , before a competent impartial and independent court .

In its judgment of DATE ORG ruled on the compatibility of Articles CARDINAL and CARDINAL of LAW with LAW . It ruled that LAW was compatible with LAW , if it was so construed as to mean that ORG was liable for damage caused by unlawful acts of public officials in carrying out his / her duties .

In the same judgment the ORG held that LAW was incompatible with LAW in that it placed undue restrictions on access to a court in cases in which the civil liability of the ORG was claimed for acts carried out in the exercise of the ORG powers , other than de facto acts , which were covered by the general principle of LAW ( published in ORG ) , Dz . U. Nr CARDINAL , poz . DATE ) .

The judgment of DATE took effect on DATE . As a result , Article CARDINAL was repealed .


Violation of Art. 8;Not necessary to examine Art. 14+8;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant was born in DATE and lives in GPE . He had a relationship with PERSON from DATE . On DATE a daughter , named PERSON , was born to PERSON and the applicant .

Pursuant to LAW ) , as then in force , PERSON obtained guardianship ( voogdij ) of A. The applicant was appointed as ORG ’s auxiliary guardian ( toeziend voogd ) on DATE by ORG judge ( kantonrechter ) . The applicant ’s auxiliary guardianship ended on DATE , when an amendment to LAW came into force abolishing that function .

The applicant and PERSON did not formally cohabit , but the applicant visited her and PERSON on a regular basis . He also babysat and took care of A. on several occasions . PERSON sometimes consulted the applicant about A. ’s hearing problems . The applicant did not formally recognise ( erkenning ) A. , as PERSON refused to give her permission and her family also opposed such recognition . Although the applicant could have sought judicial consent for recognising PERSON ( see paragraph CARDINAL below ) , he did not avail himself of this possibility , considering that it would stand little chance of success . Moreover , the applicant preferred to respect the position adopted by PERSON and her relatives , and maintain the de facto family ties he had with his daughter rather than establish formal legal ties with her .

In DATE the applicant ’s relationship with PERSON broke down . On DATE the applicant requested ORG ( arrondissementsrechtbank ) to grant him access ( omgangsregeling ) to A. DATE every fortnight and DATE during DATE . In those proceedings PERSON argued primarily that the applicant ’s request should be declared inadmissible in that there had never been any family life within the meaning of LAW between the applicant and PERSON and , in so far as family life had existed , it had ceased to exist after the end of her relationship with the applicant . In the alternative , PERSON argued that to grant the applicant access would not be in DATE ’s interests . PERSON further submitted that the applicant had behaved badly towards her ( violence and financial abuse ) and had shown little interest in A. She indicated , lastly , that A. ’s hearing was impaired and that her daughter thus required a special approach of which she deemed the applicant incapable .

By a decision of DATE , ORG accepted that there was family life within the meaning of LAW between the applicant and PERSON , and that this family life had not ceased to exist since the breakdown of the applicant ’s relationship with PERSON It consequently declared the applicant ’s request admissible . However , given the difficulties between the applicant and PERSON , ORG decided to order ORG ( PERSON ) to conduct an investigation and to report to it on the feasibility of an access arrangement .

PERSON filed an appeal against this decision with ORG ( gerechtshof ) . By a decision of DATE , ORG quashed the decision of DATE and declared the applicant ’s request inadmissible . In its decision , ORG stated :

“ CARDINAL Out of the parties’ relationship ( lasting from DATE to August CARDINAL ) , PERSON was born . PERSON is the biological father of A. He has not recognised the child . The mother holds parental authority over A. by law .

CARDINAL NORP In addition to what is stated under CARDINAL , the following , as contended by CARDINAL side , and not , or insufficiently , disputed by the other , has been established or become plausible .

The father was present at A. ’s birth . He has never been formally registered at the mother ’s address , but ( up to DATE ) regularly visited the mother . He has also changed A. ’s nappy a few times [ enkele malen ] and has babysat her once or twice [ een QUANTITY keer ] , but not since DATE . Further , the mother has on several occasions [ verschillende keren ] had contact by telephone with the father about ( the hearing problems of ) A.

CARDINAL In the light of the above facts and circumstances , it has been insufficiently established that the father has a close personal relationship with the child – who at the time of the breakdown of the parties’ relationship was DATE or that there is a link between him and the child that can be regarded as ‘ family life’ within the meaning of LAW . The further circumstances relied on by the father , from which it would appear that he has a close personal relationship with the child , have – in contrast to the substantiated denial thereof by the mother – not been established . The terminology used by the mother in the proceedings ( she spoke about ‘ a relationship until DATE and ‘ my ex - partner’ ) can not , either in itself or in connection with the above circumstances , lead to a different conclusion .

CARDINAL On the basis of the above considerations , the impugned decision is quashed , and the father ’s request is declared inadmissible . ”

The applicant ’s subsequent appeal on points of law was dismissed by ORG ( PERSON ) on DATE . ORG rejected the argument that the mere biological link between the applicant and PERSON was sufficient to attract the protection of LAW . It held that “ family life ” for the purposes of LAW implied the existence of further personal ties in addition to biological paternity . As to the lack of existence of such further personal ties , it accepted the findings of ORG .

A child born out of wedlock had the status of the natural child of its mother . It became the natural child of its father after being recognised by DATE the “ father ” , for the purposes of this provision , being the man who recognised the child , whether he was the biological father or not ( LAW ) .

A child born out of wedlock automatically had legally recognised family ties ( familierechtelijke betrekkingen ) with its mother and her relatives . ORG by the father entailed the creation of a legally recognised family tie between him and the child , as well as between the child and the father ’s relatives ( Article CARDINAL of LAW ) . At the relevant time the surname of such a child was the surname of its father if the latter had recognised the child , and the mother ’s surname if not ( LAW § CARDINAL of LAW ) .

Recognition of a child could be effected on the birth certificate itself or by a separate deed of recognition drawn up for that purpose by ORG , Deaths and Marriages or a notary public ( LAW ) . A deed of recognition drawn up by the registrar was entered in the register of births ( LAW ) . At the request of an interested party , the regional court could order that a deed be entered in the appropriate registers ( LAW ) .

Recognition without the mother ’s prior written consent was void ( Article CARDINAL § CARDINAL ( d ) of LAW ) . However , in view of the right of the father and the child to respect for their “ family life ” , as guaranteed by LAW , ORG construed this provision in such a way that the mother ’s effective right of veto could be overridden , if she abused it , by alternative judicial consent . However , such judicial consent could only be sought by a biological father whose relationship with his child was such that it should be considered to amount to “ family life ” within the meaning of LAW ( see PERSON , DATE , PERSON ( GPE Law Reports – ( GPE ) ) DATE , no . CARDINAL ) . In a situation where the mother was raising the child alone , judicial consent would only be given if the mother had no interest warranting protection in refusing to give her permission ( see PERSON , DATE , GPE DATE , no . CARDINAL , and PERSON , DATE , NJ DATE , no . CARDINAL ) .

On DATE a new LAW came into force . It still provides that , for a man to recognise a child who is not yet DATE as his , the prior written consent of the mother is required ( LAW ) ) . If the mother has not given her consent , it may be replaced by the consent of the regional court ( LAW ) . However , the man who seeks alternative judicial consent must be the child ’s biological father ; in addition , recognition must not be detrimental to the mother ’s relationship with the child or to the child ’s own interests ( ibid . ) . Furthermore , the child ’s written permission is required if he or she has reached DATE ( LAW ( d ) ) .

According to ORG case - law under LAW , the procedure for obtaining judicial consent must entail a judicial balancing exercise between the interests of the persons concerned , the point of departure being that both the child and its biological father should in principle be entitled to have their relationship acknowledged in law as a legally recognised family relationship ( familierechtelijke betrekking ) . However , the judge must balance the father ’s interests in obtaining recognition against any conflicting interests of the mother or the child or both . The mother ’s interest is defined in LAW as having an undisturbed relationship with the child ( see PERSON , DATE , PERSON ( Weekly Law Reports ) DATE , no . CARDINAL ) .

Also on DATE , LAW was introduced into LAW , pursuant to which a child may request the regional court to issue a judicial declaration of paternity ( gerechtelijke vaststelling van vaderschap ) in order to have a legal tie established between him or her and the biological father . No time - limit applies for lodging such a request .

Pursuant to LAW , parents DATE namely , the persons who have become a legal parent of a child either ipso jure , or through recognition , a judicial declaration of paternity , or adoption – are obliged to provide for the maintenance of their minor children . The absence of recognition of a child does not absolve the biological father of his maintenance obligations towards this child . Pursuant to LAW , the biological father of an unrecognised child remains liable to pay maintenance until the child has come of age . Until DATE , when this provision was amended as a consequence of the introduction of the possibility of seeking a judicial declaration of paternity , Article CARDINAL § CARDINAL provided that the supposed biological father of an illegitimate , unrecognised child was the man who had had intercourse with the mother between the GPE and DATE before the birth of the child .

Access rights are regulated by ORG CARDINAL - h of LAW .

The relevant part of Article CARDINAL of the Civil Code provides as follows :

“ CARDINAL . The child and the parent who does not have custody are entitled to have access to each other [ omgang met CARDINAL ] .

The judge shall , at the request of the parents or of CARDINAL of them , establish an arrangement , for a definite or indefinite period , for the exercise of the right of access or shall deny , for a definite or indefinite period , the right of access .

The judge shall only deny the right of access if :

( a ) access would seriously impair the mental or physical development of the child ;

( b ) the parent is deemed to be manifestly unfit for or manifestly incapable of access ;

( c ) the child is DATE and has , when being heard , manifested serious objections against allowing the parent access ; or

( d ) access would for another reason be contrary to the weighty interests [ zwaarwegende belangen ] of the child . ”

NORP The relevant part of Article CARDINAL of the Civil Code reads as follows :

“ CARDINAL . Without prejudice to the provisions of Article [ CARDINAL:]CARDINALa [ of LAW ] , the judge may , on request , establish an access arrangement between the child and the person having close personal ties with it . The judge may reject the request where the interests of the child oppose granting it , or where the child is DATE and objects to it . ”

According to the case - law of ORG , a request by a biological father for access to a child whose paternity he has not recognised is to be examined under Article CARDINAL , and not under LAW , of LAW , in that he is not a “ parent ” within the meaning of LAW . Where the father of a child born out of wedlock has recognised the child , a request for access is to be examined under LAW ( see PERSON , DATE , GPE DATE , no . CARDINAL , and PERSON , DATE , NJ DATE , no . CARDINAL ) .

In several cases in which a biological father has claimed a right of access to his child under LAW , ORG has held that mere biological fatherhood in itself is insufficient to establish the existence of “ family life ” . According to ORG , such a relationship can only be regarded as involving “ family life ” where there are additional circumstances , such as regular contact with the child , from which it ensues that the tie with the father can be regarded as constituting “ family life ” ( see PERSON , DATE , GPE DATE , no . CARDINAL ; PERSON , DATE , GPE DATE , no . CARDINAL ; and PERSON , DATE , NJ DATE , no . CARDINAL ) .


The applicant , Mr PERSON , is a NORP national who was born in GPE in DATE and is currently in GPE . He is represented before the ORG by Mr P - E Nilsson , a lawyer practising in GPE , GPE . The respondent Government are represented by their Agent , PERSON of ORG .

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

The applicant applied for asylum to ORG ( Migrationsverket ) on DATE , claiming that he had arrived in GPE DATE . He presented a NORP passport to the authorities but he could produce neither his ticket to GPE nor the required visa .

On DATE ORG held an initial interview with the applicant in which he briefly recounted his family background and up - bringing in the city of ORG . He further stated that he had travelled to GPE on DATE via GPE and GPE and that the passport he had given to the NORP authorities was forged . It had been paid for by his father and ORG and given to him by a smuggler . Asked by the Migration Officer about his reason for asylum , the applicant submitted that he had been reported to the NORP police on false accusations of possessing illegal weapons and of having murdered a supporter of ORG . He claimed to have been arrested once by the police and detained for DATE . In response to further questions , the applicant stated that he had been the treasurer of ORG , to which he belonged , and that he had been arrested by the police in DATE and in DATE , allegedly to prevent the party from continuing with its activities and returning to power . He also claimed that he had been tortured by the police , which had caused damage to his knee and ankle joint and left him with difficulties in walking and lapses of memory . Furthermore , the police had been constantly looking for him in GPE . At the end of the interview , the Migration Officer noted that the part of the record concerning the reasons for asylum had been re - read to the applicant and that he had had nothing to object or add to it . The applicant had moreover confirmed that he had understood the interpreter well during the interview .

On DATE ORG held a second interview with the applicant where his legal representative was present and given the opportunity to ask questions . During this interview the applicant submitted , inter alia , the following . He had held the post as treasurer of a welfare fund within ORG , the purpose of the fund being to provide support for education of the poor and to provide food in case of famine . His office had been located in GPE . He had been arrested twice , both times in his home town ORG , because of false accusations from supporters of ORG ( the ruling party at the time ) . Neither arrest had been followed by a trial against him nor had he been appointed a lawyer . The first arrest occurred on DATE , following a report to the police by ORG that he had murdered a person named PERSON . He had been detained for DATE during which time he had been beaten with bottles filled with water , sandbags and rifle butts , mostly on his legs . He had been released because he fell ill from the maltreatment . The second arrest had occurred on DATE , again after false accusations by ORG which this time had affirmed that he was , or had been , in possession of illegal weapons . He had been released on DATE , again due to ill health following physical abuse . Upon release he had been urged by the police to abandon his contacts with his party or he would be killed . During both arrests , he had been held at the central prison in GPE . After his release in DATE he had lived on the run until he left for GPE and , consequently , he had not continued to work for ORG . However , despite several questions from the Migration Officer , the applicant could not give a clear answer as to where he had lived following his release in DATE . He stated both that he mainly lived at home with his parents and that he rarely did so since the police had come looking for him almost every other day for DATE . With reference to the records from the initial interview where he had stated that he had been arrested in DATE , he claimed that it must have been a misunderstanding and that he had said that he began his political activities in DATE . He further claimed that he had already in the initial interview mentioned that he had been arrested in DATE and that it was also a mistake that this had not been included in the record .

To support his statements the applicant submitted a certificate dated DATE and signed by a Mr PERSON , member of the central committee of ORG , which certified that the applicant was a member of the party and had worked for it since DATE , currently holding the post of welfare secretary within the unit of the Karanigonj area . It further stated that he had been arrested more than twice and detained in the GPE jail where he had been severely tortured . According to the certificate , the police were looking for him and the party had therefore recommended him to leave the country . Last , PERSON requested the Government of GPE to grant the applicant political asylum .

On DATE ORG rejected his application for asylum and ordered that he be expelled to his home country . It first noted that the applicant had not been able to substantiate how he had travelled from GPE to GPE and consequently it remained unclear how long he had been in GPE before applying for asylum . It then went on to state that the general situation in GPE was not such as to entitle him to asylum per se . Moreover , there was freedom of political opinion in GPE and the applicant had worked for a party that was legal . ORG considered that his political activities had been very limited and that it was not probable that his political affiliation alone would give rise to a risk of persecution . With regard to the false accusations against the applicant , ORG observed that he had been released both times and that there had been no trial . It was acknowledged that false accusations occurred as part of political life in GPE but this was not found to be a sufficient reason in itself to be granted asylum . What the applicant had submitted in the present case did not give reason to believe that he was in need of protection on account of the accusations . Neither did his submissions provide support for his claim that he would be at risk of renewed arrest if he had to return to his home country . Furthermore , ORG did not question that the applicant had been exposed to ill - treatment or torture during his previous arrests , but considered that he did not risk such ill - treatment , or being punished by death or corporal punishment , if returned . Thus , it was concluded that the applicant was neither a refugee who could be granted asylum nor a person otherwise in need of protection who could be allowed to stay on humanitarian grounds . The latter conclusion was reached after consideration by ORG even though the applicant had not expressly requested it .

The applicant appealed to ORG ( Utlänningsnämnden ) , renewing his request for asylum and requesting that he be granted a residence and work permit . He maintained his earlier claims and added that there was a warrant for his arrest and proceedings pending against him before the national courts in GPE . The pending cases concerned the previously mentioned accusation by political opponents . He submitted several documents , most of them in NORP , to support his statements . Among the documents there was a warrant for his arrest , in LANGUAGE , dated DATE , and CARDINAL letters from his defence lawyer in GPE , PERSON . The first letter , written in LANGUAGE , dated DATE , informed the applicant that Mr PERSON would be representing him in court against the charges of attempted murder . The second letter , in NORP , dated DATE , stated , according to the applicant , that he had been convicted of attempted murder and sentenced to DATE imprisonment and to pay a fine .

Moreover , the applicant submitted a medical certificate , dated DATE , to ORG in which the chief physician of ORG stated that the applicant suffered from ORG ( PTSD ) , was depressed and had shown suicidal tendencies . He considered that the applicant was in need of advanced psychiatric treatment .

On DATE ORG rejected the appeal . It gave the following reasoning :

“ ORG shares ORG assessment of the reasons that [ the applicant ] has invoked before ORG . His submissions now , that legal proceedings have been instituted against him , does not entail that he can be considered to be persecuted or in need of protection . ....

ORG , which does not question that [ the applicant ] has been subjected to ill - treatment in his home country and that his psychological health is poor , can not however find that a residence permit should be granted to him on this ground . Nor , a residence permit for humanitarian reasons should be granted . ”

At DATE the applicant lodged a new application with ORG for a residence permit on humanitarian grounds , according to LAW , section CARDINAL , of LAW , and requested that his expulsion be stayed until the new application had been considered and a new medical examination had been carried out .

He submitted a medical certificate , dated DATE , which stated that he was very depressed and lacked the ability to care for himself . He was diagnosed as suffering from PTSD with anxiety and suicidal thoughts .

Before the ORG , the applicant claimed that he had also invoked a document stating that he had been convicted to DATE imprisonment , in absentia , by a court in GPE . However , this has been disputed by the Government which claim that no such document had been invoked before the national authorities at any time during the proceedings . The alleged document has not been produced before the ORG .

On DATE , ORG decided not to stay the execution of the expulsion order and , on DATE , it rejected the application . It first observed that the decision to expel the applicant had gained legal force through its decision of DATE and that the decision could not be appealed against or re - examined . However , according to LAW , section CARDINAL , of LAW , ORG could examine a new application for a residence permit lodged by an alien who was to be expelled following a final decision . Under this provision , such a new application could be granted only if it was based on circumstances which had not already been examined and if the alien was in need of protection or if it otherwise would be contrary to humanitarian standards to implement the expulsion order . Turning to the issue before it , ORG noted that it did not concern a need for protection pursuant to LAW ( i.e. a new request for asylum ) . It then observed that the medical certificate which the applicant had invoked was DATE and that he had not submitted more recent medical certificates . It went on to find that the medical evidence invoked did not show that the applicant 's current health condition was of such a character that it would be contrary to humanitarian standards , within the meaning of LAW , to enforce the expulsion .

On DATE the applicant 's representative requested the ORG to indicate to ORG under Rule CARDINAL of ORG to suspend the applicant 's expulsion . On DATE , the applicant allegedly tried to commit suicide by swallowing an unspecified number of cigarettes following which he was taken to hospital . After having received treatment , he was placed in a closed psychiatric care unit . On DATE he escaped from the hospital and went into hiding .

On DATE the President of the ORG to which the case had been allocated decided , under LAW , to indicate to the respondent Government that it was desirable in the interest of the parties and the proper conduct of the proceedings before the ORG not to expel the applicant to GPE until the ORG had had an opportunity to examine the application . On DATE the ORG decided , under LAW ( b ) of the Rule of the ORG , that the ORG should be invited to submit written observations on the admissibility and merits of the case . Moreover , it decided to prolong , until further notice , the interim measure indicated under LAW .

Following the ORG 's indication under LAW on DATE , ORG decided on DATE to stay the enforcement of its decision to expel the applicant until further notice . ORG decision is still in force .

On DATE , after the ORG had received both parties ' observations on the admissibility and merits of the case , it received a fax signed by PERSON in which he disputed all the ORG 's claims concerning him personally as put forward in their observations . He stated that he was a ORG licensed lawyer and working at the address mentioned in the letterhead of his letters . As regarded the court case in GPE against the applicant in which he had been convicted of attempted murder , Mr PERSON stated that it was a mystery that it had disappeared but that sometimes court officials kept files secret , which must have happened in the present case .


Violation of Art. 6-1;Violation of Art. 13;Violation of P1-1;Damage - claim dismissed

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

On DATE the ORG of the Lviv Region awarded the applicant ORG , ORG CARDINAL,CARDINAL.CARDINAL and ORG CARDINAL in compensation for pecuniary and non - pecuniary damage , and for legal aid respectively , against ORG . CARDINAL “ FAC ” .

In DATE the judgment was enforced by instalments , the final amount being paid on DATE .

The relevant domestic law is summarised in the judgment of ORG v. GPE ( no . CARDINAL , § § DATE , DATE ) .


No violation of Art. 10;Preliminary objections rejected (non-exhaustion of domestic remedies, estoppel);Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

John Freeland;Luzius Wildhaber;Paul Mahoney

The applicant is a NORP citizen who was born in DATE and lives in GPE .

At the material time , the applicant was the major shareholder in ORG ve PERSON , a NORP limited liability company which owns a DATE review entitled Haberde Yorumda Gerçek ( “ ORG and Comments ” ) , published in GPE .

NORP In issue No . CARDINAL of the review , dated DATE , a news commentary entitled “ In Botan the poor peasants are expropriating the landlords ! ” was published .

The relevant parts of this news commentary read :

‘ The waves of the earthquake centred on Botan have reached all of GPE . The national liberation struggle , growing like the ripples caused by a stone cast into a pool of water , has already gone past Botan in waves , currently embracing CARDINAL districts in CARDINAL provinces in the active front of armed struggle.’

ORG [ ORG ] sources briefly describe the extent of the national struggle in GPE as follows : the said CARDINAL provinces ( together with their districts ) are PERSON , PERSON , PERSON , PERSON , PERSON , PERSON and ORG ; while the provinces of GPE , ORG , ORG , ORG and their districts are described as being partially involved in the war .

The popular movements in the PERSON area , where CARDINAL to CARDINAL NORP live , which have developed with the rise of the national liberation movement , have made rapid strides in DATE . The political point reached in the area is that the ORG has almost become inoperative . ...

The domain vacated by the ORG in the political sense has since been occupied by the ORG in the rural areas and ORG organisations in the cities . ...

Land can not be redistributed before it is transferred to the free will of the NORP people , because it is inconceivable to distribute land that bears the seal of GPE . ...

DATE , our struggle is an external war directed against the forces of GPE . ...

We want to wage a total liberation struggle . ... ”

On DATE ORG ( GPE PERSON ) ordered the seizure of this edition of the review on the ground that , allegedly , it disseminated propaganda against the indivisibility of the ORG .

NORP In an indictment dated DATE , ORG at ORG charged the applicant , being the owner of the review , with disseminating propaganda against the indivisibility of the ORG . The charges were brought under section CARDINAL of the Prevention of Terrorism Act DATE ( -“the DATE LAW ; see paragraph CARDINAL below ) on account of the publication of the above news commentary , which concerned , inter alia , the activities of the ORG .

In the proceedings before ORG , the applicant denied the charges . He pleaded that the commentary on which the charges were based in fact criticised the activities of the ORG . He invoked LAW and referred to the case - law of the Commission and the ORG . He stated that pluralism of opinions , including those opinions which shock or offend , is essential in a NORP society . He argued that the provisions of section CARDINAL of the CARDINAL Act restrict the right to freedom of expression in contravention of LAW and the criteria laid down by the case - law of the Commission and the ORG .

In a judgment dated DATE , ORG found the applicant guilty of making propaganda against the indivisibility of the ORG . The applicant was first sentenced to a fine of MONEY ( TRL ) . Thereupon the Court , considering the good conduct of the applicant during the trial , reduced the fine to GPE CARDINAL,CARDINAL,CARDINAL .

ORG , considering those parts of the news commentary cited at paragraph CARDINAL above in the light of the article as a whole , observed that it referred to certain parts of GPE as “ GPE ” . Moreover , in the words of ORG , it described the acts of the “ NORP terrorist organisation ” as a national liberation struggle , which amounted to propaganda aimed at undermining the indivisibility of the ORG .

The applicant appealed . He , inter alia , reiterated the defence he had relied on before ORG . On DATE ORG dismissed the appeal , upholding the cogency of ORG assessment of evidence .

The relevant provisions of LAW DATE read as follows :

“ For the purposes of the present PERSON , the term ‘ periodicals’ shall mean newspapers , press agency dispatches and any other printed matter published at regular intervals .

‘ Publication’ shall mean the exposure , display , distribution , emission , sale or offer for sale of printed matter on LOC to which the public have access where anyone may see it .

An offence shall not be deemed to have been committed through the medium of the press unless publication has taken place , except where the material in itself is unlawful . ”

( before amendment by PERSON no . CARDINAL of DATE )

“ Written and spoken propaganda , meetings , assemblies and demonstrations aimed at undermining the territorial integrity of GPE or the indivisible unity of the nation are prohibited , irrespective of the methods used and the intention . Any person who engages in such an activity shall be sentenced to not CARDINAL and not more than five years’ imprisonment and a fine of from CARDINAL to MONEY .

Where the crime of propaganda contemplated in the above paragraph is committed through the medium of periodicals within the meaning of section CARDINAL of LAW ( Law no . CARDINAL ) , the publisher shall also be liable to a fine equal to MONEY of the income from the average sales for DATE if the periodical appears more frequently than DATE , or from the average sales for DATE of the DATE newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched . However the fine may not be MONEY . The editor of the periodical concerned shall be ordered to pay a sum equal to CARDINAL the fine imposed on the publisher and sentenced to not less than six months’ and not more than CARDINAL years’ imprisonment . ”

( as amended by PERSON no . CARDINAL of DATE )

“ Written and spoken propaganda , meetings , assemblies and demonstrations aimed at undermining the territorial integrity of GPE or the indivisible unity of the nation are prohibited . Any person who engages in such an activity shall be sentenced to not CARDINAL and not more than three years’ imprisonment and a fine of from CARDINAL MONEY . The penalty imposed on a reoffender may not be commuted to a fine .

Where the crime of propaganda contemplated in the first paragraph is committed through the medium of periodicals within the meaning of section CARDINAL of LAW ( Law no . CARDINAL ) , the publisher shall also be liable to a fine equal to MONEY of the income from the average sales for DATE if the periodical appears more frequently than DATE . However , the fine may not be MONEY . The editor of the periodical concerned shall be ordered to pay a sum equal to CARDINAL the fine imposed on the publisher and sentenced to not less than six months’ and not more than CARDINAL years’ imprisonment .

Where the crime of propaganda contemplated in the first paragraph is committed through the medium of printed matter or by means of mass communication other than periodicals within the meaning of the second paragraph , those responsible and the owners of the means of mass communication shall be sentenced to not CARDINAL six months’ and not more than two years’ imprisonment and a fine of from CARDINAL MONEY …

“ The penalties for the offences contemplated in the present law may not be commuted to a fine or any other measure , nor may they be accompanied by a reprieve . ”

“ The penalties for the offences contemplated in the present PERSON may not be commuted to a fine or any other measure , nor may they be accompanied by a reprieve .

However , the provisions of this section shall not apply to convictions pursuant to section CARDINAL . ”

The relevant provisions of domestic law governing the organisation and procedure of ORG are quoted in paragraphs CARDINAL of the NORP v. GPE ( no . CARDINAL ) judgment , which is being delivered on DATE as the present judgment .