MANOILESCU AND DOBRESCU v. ROMANIA AND RUSSIA

The applicants , Mr PERSON and PERSON , are NORP nationals who were born in DATE and DATE respectively . The first applicant lives in PERSON ( GPE ) and the second in GPE ( GPE ) . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE .

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

The applicants are heirs of DATE , who in DATE purchased QUANTITY . m of land in PERSON , near GPE , on which he had a house built ( “ the building in NORP ” ) .

NORP In a judgment of CARDINAL DATE , ORG sentenced DATE imprisonment for subversive activities against the ORG . In DATE he died in prison .

In a decision of CARDINAL DATE , ORG , on an application by PERSON , quashed that judgment and acquitted DATE on all the charges on the ground that the essential elements of the offence of which he had been convicted had not been made out .

In Order no . DATE of DATE , made during the Second World War , the building in PERSON was requisitioned by ORG and placed at the disposal of ORG ( GPE ) .

On DATE , following ORG , GPE was held responsible for the war damage caused to the ORG and was ordered to make reparation through transfers of NORP assets in foreign countries such as GPE .

Law no . CARDINAL of DATE on the return to the GPE authorities of NORP assets in NORP territory in accordance with the decisions taken at FAC authorised ORG to determine the procedure for returning property to the GPE authorities designated by ORG in GPE .

On DATE and CARDINAL DATE ORG decided that assets that belonged to NORP natural and artificial persons and were registered in the lists kept by ORG Property were to be transferred to the authorities designated by ORG under PERSON no . CARDINAL . Among the immovable property thus transferred to the NORP authorities was a building at CARDINAL Dr FAC in GPE , owned by a private individual , PERSON

In that context , by order of ORG , GPE 's property was again requisitioned on DATE . On DATE it was allocated to ORG .

In DATE the building in question was nationalised by GPE under Decree no . CARDINAL/CARDINAL on nationalisation . It was assigned to the GPE embassy in GPE , as is apparent from the lists appended to the decree .

In Decree no . CARDINAL of DATE the ORG of ORG of GPE authorised ORG to carry out an exchange of immovable property with the GPE on behalf of ORG . The decree empowered the Ministry to transfer to the GPE title to a number of houses in PERSON ( known collectively as “ Adesgo ” ) belonging to ORG and , in return , to receive title to CARDINAL properties in the GPE 's possession in GPE and GPE . The exchange of property was approved on DATE in decision no . CARDINAL of ORG of the Romanian People 's Republic .

In Decree no . CARDINAL of CARDINAL DATE ORG of the Romanian People 's Republic authorised a further exchange of property between the NORP and GPE : GPE was granted title to a property at CARDINAL Dr FAC in GPE ( see paragraph CARDINAL above ) , owned by GPE , which in return obtained title to CARDINAL detached houses in PERSON ( known as “ LOC ” and “ LOC ” ) and the appurtenant QUANTITY . m of land , owned by ORG .

According to the applicants , “ FAC ” is actually the building in PERSON which belonged to GPE before being requisitioned and subsequently becoming the property of GPE under Decree no . CARDINAL/CARDINAL on nationalisation ( see paragraphs CARDINAL above ) .

In an undated diplomatic note addressed to ORG in reply to a question from ORG , the GPE embassy in GPE pointed out that under Decree no . DATE issued by President PERSON , ORG had taken over all the rights vested in the GPE in respect of movable and immovable property abroad . It further noted that GPE now had title in GPE to a housing complex and the appurtenant land in PERSON . It stated that that title had been confirmed by ORG decisions of DATE and CARDINAL DATE , by Decree no . DATE issued on CARDINAL DATE by the ORG of ORG of GPE , and by Decree no . CARDINAL issued on CARDINAL DATE by ORG of GPE ( see paragraphs PERSON , DATE and DATE above ) .

In a letter of DATE , the mayor of PERSON stated in reply to a question from the first applicant that the NORP Federation embassy in GPE was using the building in PERSON that had belonged to GPE ; an appendix to the nationalisation decree indicated that the embassy had gained possession of the building in issue by virtue of an exchange of immovable property between GPE and the GPE .

In DATE , following the enactment of PERSON no . NORP on the legal status of residential property that had passed into the ownership of GPE , the first applicant , as DATE 's heir , lodged an application for restitution of the building in PERSON with the administrative board established to deal with applications lodged in PERSON pursuant to PERSON no . LANGUAGE ( “ the ORG ” ) .

In a decision of DATE , ORG allowed his application and ordered the return of all the property in question to him , namely a detached house and the CARDINAL sq . m of land on which it was built .

A ORG - owned company , ORG , applied to ORG for judicial review of that decision . It argued that the building was not designated as residential and had not been vacant on the date on which PERSON no . DATE had come into force , whereas the PERSON provided that the administrative authorities empowered to apply it could order the return of property to its owners only if those conditions were met . The applicants applied to intervene in the proceedings , seeking to have PERSON 's application dismissed on the ground that the building in issue was not managed by that company .

In a judgment of CARDINAL DATE , ORG Instance found for the applicants and dismissed the application by PERSON on the ground that that company did not have locus standi since the building was not managed by it . In the absence of an appeal , that judgment became final .

On an unspecified date the first applicant brought proceedings against ORG and ORG under Articles CARDINAL et seq . of LAW , seeking an order requiring them to execute the administrative decision of DATE by returning the property in issue to him .

Relying on various documents by means of which he intended to prove that DATE was the former owner of the property and that he himself was DATE 's heir , he urged that the restitution should be effective and enforceable against the legal successor of the GPE , notwithstanding the international principles concerning immunity set forth in the DATE Vienna Convention on Diplomatic Relations .

He submitted that it was impossible for the final administrative decision of DATE in his favour to be enforced in the normal manner by bailiffs , in view of the immunity enjoyed by the NORP Federation embassy in GPE with regard to the LOC it occupied . Recapitulating the circumstances in which the property had been taken from GPE , he contended that a domestic statute , Law no . DATE the application of which entailed the return of his property – could not be deprived of effect by securing diplomatic rights to GPE which , moreover , no longer existed .

The second applicant sought leave to intervene in the proceedings , arguing that as an heir of DATE she had the same rights as the first applicant .

In a judgment of CARDINAL DATE , ORG allowed the applicants ' applications and ordered the respondent authorities to return the property to them . It noted that the relevant decision of DATE , which had become final , had been given after verification of the legal status of the property and that the respondents could no longer claim that it was administered by the GPE .

Snagov Town Council appealed against that judgment . It asserted that the building in issue was not owned or administered by it but was used by the NORP Federation embassy , which had informed it that it was the owner of the building in a diplomatic note which ORG submitted in evidence ( see paragraph CARDINAL above ) . Emphasising that it was not contesting the applicants ' title to the building , ORG argued that it lacked the capacity to take the action demanded by the applicants since the property was occupied by the embassy .

ORG argued , lastly , that it was impossible to execute the final decision of DATE , seeing that the bailiffs were also prevented from taking any enforcement measures for similar reasons .

NORP In a judgment of DATE , ORG allowed ORG appeal , quashed the judgment of ORG and dismissed the applicants ' application as being ill - founded . It noted that the building was not managed by the administrative authorities in question but was used by the NORP Federation embassy in GPE , which had stated in a diplomatic note that it was the owner ( see paragraph CARDINAL above ) . ORG considered that execution of the administrative decision of DATE would amount to breaching the immunity enjoyed by GPE diplomatic mission in GPE , and thus directly undermining the GPE 's fundamental interests . Lastly , it pointed out that immunity from execution was a principle recognised in international law , legal theory and practice .

The applicants appealed against that judgment , submitting that the lower courts had been incorrect in their interpretation of the evidence and of the nature of the legal relationships in the case before them . They argued , in particular , that the requisitioning of the property in issue and its passing into ORG ownership had been unlawful on the ground that Decree no . CARDINAL on the exchange of property had not been signed and was therefore null and void . They submitted plans showing the location of the property in question and documents concerning the exchange of property between the NORP and GPE ( see paragraphs CARDINAL , CARDINAL , DATE and DATE ) .

In a judgment of CARDINAL DATE , ORG allowed their appeal , quashed the judgment of DATE and remitted the case to ORG for rehearing . ORG asked the court to conduct additional inquiries in order to ascertain the procedure by which the building had become the property of ORG and had been transferred to GPE , and to clarify the legal status of the building at CARDINAL Dr FAC , GPE , which the GPE had exchanged for the building in issue . The court was also instructed to investigate who had used the building before and after DATE and for what purpose .

At the hearing on DATE , ORG raised of its own motion the objection that the respondent administrative authorities could not be a party to the proceedings as the property was not managed by them . It joined that objection to the merits .

In a decision delivered on DATE the court , without having conducted the additional inquiries ordered by ORG , allowed the objection and dismissed the applicants ' action . It noted that the building in issue had initially been requisitioned and then nationalised in the circumstances outlined in DATE above , and that it had subsequently become the property of GPE by means of an exchange between GPE and the GPE , approved by Decree no . CARDINAL of CARDINAL DATE ( see paragraph CARDINAL above ) . Observing that the building was now the property of GPE , the GPE 's legal successor , the court considered that the first applicant 's application for an order requiring the relevant authorities to return the building in accordance with LAW had been brought against entities lacking the capacity to take part in the proceedings .

The applicants appealed against that judgment , arguing that the court had omitted to take into account either the fact that the property had been taken unlawfully from DATE or the evidence which they had submitted to that effect ( see paragraph CARDINAL in fine above ) .

In a judgment of DATE , against which no ordinary appeal lay , ORG dismissed their appeal and upheld the judgment of DATE . It noted , firstly , that the applicants ' criticism that the lower court had not taken into account or interpreted correctly the evidence they had submitted was unfounded . It considered in that connection that the building had passed into the ownership of GPE under Decree no . CARDINAL/CARDINAL on nationalisation and that the applicants could accordingly not claim that it had been taken unlawfully by the ORG . It further observed that GPE title to the building in issue had been confirmed and that the lower court had consequently been correct in finding that the applicants ' action was directed against respondents lacking the capacity to take part in the proceedings .

On DATE the applicants lodged an application to set aside the judgment of DATE . They submitted that ORG had breached LAW by overlooking its previous judgment of CARDINAL DATE in which it had ordered additional inquiries . They added that ORG had omitted to draw any inferences from the evidence they had submitted .

In a judgment of DATE , against which no ordinary appeal lay , ORG dismissed the applicants ' application as being ill - founded . It observed that in its judgment of CARDINAL DATE it had not dealt with points of law , so that its decision could not have been binding in the new round of proceedings after the case had been remitted ; rather , it had simply requested the lower court to clarify the legal position regarding the building in issue and the entity occupying it . It therefore held that LAW of LAW had not been breached by the lower court . ORG held that the applicants ' second complaint was likewise unfounded , seeing that in its judgment of CARDINAL DATE on the applicants ' appeal it had found that title to the building in question was vested in GPE and not in the respondents , thereby settling the dispute in the light of all the evidence before it .

On an unspecified date the applicants sent a memorial to the Ambassador of GPE in GPE , requesting him to allow the relevant NORP authorities to return the building in PERSON to them , as they had inherited it and had been granted restitution of it under PERSON no . LANGUAGE . After recapitulating the circumstances that had led to GPE 's loss of the building ( see paragraphs CARDINAL above ) , they argued that the exchange of property between the NORP and GPE under Decree no . CARDINAL of CARDINAL DATE had been unlawful and hence void in that , firstly , the decree concerning the exchange had been neither signed nor published and , secondly , the building offered by GPE in return for the building in PERSON had not belonged to a NORP national , a criterion that would have justified its transfer to the NORP authorities in accordance with the decisions taken at FAC .

The applicants stated , lastly , that they did not wish to be party to a possible dispute with GPE , contending that any such proceedings would be thwarted by the application of the principle of diplomatic immunity enjoyed by the embassy . They argued , however , that that principle should not contravene the domestic legal order , adding that the property in issue was not of any particular practical interest .

It is not clear from the evidence before the ORG whether the applicants received a reply to their request .

On an unspecified date the applicants contacted the FAC prefect 's office . Relying on Law no . CARDINAL/CARDINAL on the legal status of immovable property wrongfully seized by ORG DATE and DATE , they sought restitution of the building in PERSON . In a letter of DATE the prefect replied that , by virtue of sections CARDINAL and CARDINAL of Law no . CARDINAL/CARDINAL taken together , the authority responsible for restitution of such property was the entity in possession of the building or the council of the district in which the property was situated . He invited the applicants to contact those authorities through the bailiffs at ORG . There is no indication in the evidence before the ORG as to whether the applicants acted on that recommendation .

In a letter dated DATE , the representative of GPE at the ORG , in reply to a request for information sent under LAW ( a ) of ORG by the ORG dealing with the case , stated that GPE , as the GPE 's successor in title to all its movable and immovable property abroad , had title in GPE to a housing complex in PERSON and the appurtenant land . He indicated that GPE title to the property had been confirmed by ORG decisions of DATE and CARDINAL DATE , by Decree no . DATE issued on DATE by the Presidium of ORG of GPE , and by Decree no . CARDINAL issued on CARDINAL DATE by ORG of GPE ( see paragraphs PERSON , DATE and DATE above ) , as the GPE embassy in GPE had already informed ORG in a diplomatic note ( see paragraph CARDINAL above ) .

It appears from the evidence submitted by the applicants that the building in issue is still being used by officials of the GPE embassy in GPE .

The relevant international provisions are as follows :

“ For the purpose of the present Convention , the following expressions shall have the meanings hereunder assigned to them :

( i ) the ' premises of the mission ' are the buildings or parts of buildings and the land ancillary thereto , irrespective of ownership , used for the purposes of the mission including the residence of the head of the mission . ”

“ CARDINAL . The LOC of the mission shall be inviolable . The agents of the receiving ORG may not enter them , except with the consent of the head of the mission .

The receiving ORG is under a special duty to take all appropriate steps to protect the LOC of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity .

The LOC of the mission , their furnishings and other property thereon and the means of transport of the mission shall be immune from search , requisition , attachment or execution . ”

“ A ORG can not claim immunity from the jurisdiction of a court of ORG if the proceedings relate to :

( a ) its rights or interests in , or its use or possession of , immovable property ; or

( b ) its obligations arising out of its rights or interests in , or use or possession of , immovable property

and the property is situated in the territory of the ORG of the forum . ”

“ No measures of execution or preventive measures against the property of a Contracting State may be taken in the territory of another ORG except where and to the extent that the ORG has expressly consented thereto in writing in any particular case . ”

On DATE ORG adopted LAW and their Property , requested the Secretary - General as depositary to open it for signature , and invited GPE to become parties to it . The relevant provisions of the convention , which is open for signature from DATE to CARDINAL DATE , read as follows :

“ A ORG enjoys immunity , in respect of itself and its property , from the jurisdiction of the courts of another ORG subject to the provisions of the present Convention . ”

“ CARDINAL . A ORG shall give effect to ORG immunity under LAW by refraining from exercising jurisdiction in a proceeding before its courts against another ORG and to that end shall ensure that its courts determine on their own initiative that the immunity of that other ORG under LAW is respected .

A proceeding before a court of a ORG shall be considered to have been instituted against another ORG if that other ORG :

( a ) is named as a party to that proceeding ; or

( b ) is not named as a party to the proceeding but the proceeding in effect seeks to affect the property , rights , interests or activities of that other ORG . ”

“ Unless otherwise agreed between the GPE concerned , a ORG can not invoke immunity from jurisdiction before a court of another ORG which is otherwise competent in a proceeding which relates to the determination of :

( a ) any right or interest of the ORG in , or its possession or use of , or any obligation of the ORG arising out of its interest in , or its possession or use of , immovable property situated in the ORG of the forum ;

( b ) any right or interest of the ORG in movable or immovable property arising by way of succession , gift or bona vacantia ; or

( c ) any right or interest of the ORG in the administration of property , such as trust property , the estate of a bankrupt or the property of a company in the event of its winding up . ”

Article DATE State immunity from post - judgment measures of constraint

“ No post - judgment measures of constraint , such as attachment , arrest or execution , against property of a ORG may be taken in connection with a proceeding before a court of another ORG unless and except to the extent that :

( a ) the ORG has expressly consented to the taking of such measures as indicated :

( i ) by international agreement ;

( ii ) by an arbitration agreement or in a written contract ; or

( iii ) by a declaration before the court or by a written communication after a dispute between the parties has arisen ; or

( b ) the ORG has allocated or earmarked property for the satisfaction of the claim which is the object of that proceeding ; or

( c ) it has been established that the property is specifically in use or intended for use by the ORG for other than government non - commercial purposes and is in the territory of the ORG of the forum ... ”

“ No measures of constraint or preventive attachment may be carried out in respect of property belonging to a foreign ORG if the property is used for the performance of activities of its Government not connected with any form of economic exploitation . ”

“ CARDINAL . The property of a foreign ORG is not subject to any process or order of the courts or other organs of the forum ORG for the satisfaction or enforcement of a judgment or order , or for the purpose of prejudgment measures in preparation for execution ( hereafter referred to as measures of constraint ) , except as provided for by this LAW and by LAW .

NORP The following categories of property of a State in particular are immune from measures of constraint :

( a ) property used or set aside for use by the ORG 's diplomatic or consular missions , its special missions or its missions to international organisations ;

“ CARDINAL . A foreign ORG may not invoke immunity from jurisdiction or from measures of constraint if it has expressly consented to the exercise of the relevant type of jurisdiction by the relevant court or other organs of the forum ORG :

( a ) by international agreement ;

( b ) in a written contract ;

( c ) by a declaration relating to the specific case ;

( d ) by a voluntary submission to jurisdiction in the form of the institution of proceedings in the relevant organs of the forum ORG , or of intervention in proceedings for the purpose of pursuing issues related to the merits of those proceedings , or of a comparable step in the proceedings .

Consent to the exercise of jurisdiction does not imply consent to measures of constraint , for which separate and explicit consent is required . ”

NORP The relevant provisions of domestic law are as follows :

“ Individuals who formerly owned residential property which passed lawfully into the ownership of the ORG or of another artificial person after DATE and which was still in the possession of the ORG or another artificial person on DATE shall be entitled to benefit , by way of reparation , from the measures in this PERSON .

The provisions of this PERSON shall apply equally to the successors in title of such former owners , subject to existing statutory provisions . ”

“ The persons referred to in LAW shall be entitled to restitution in the form of the restoration to them of the ownership of flats in which they currently live as tenants or which are vacant . In respect of other flats , those persons shall receive compensation ... ”

“ Persons entitled to claim restitution ... shall lodge an application for such purpose ... ”

“ Applications referred to in section CARDINAL above shall be lodged with the administrative board for the district in which the property is situated . They must include full details of the applicants ' identity , their status as owner or successor in title , ... certified copies of the documents on the basis of which they intend to prove their ownership or that of the deceased person of whom they are successors in title ... Decisions on restitution of property shall be taken by the county council for the district in which the property is situated . ”

“ ... The county board for the application of the provisions of this PERSON shall be composed of : the chairman of the county council , who shall chair the board , the notary public , the head of the county 's public finance and ORG audit department , the head of the county 's town planning , public works and regional development department , the head of the county council 's legal service , and CARDINAL specialists in leasehold improvements and building and land valuation , assisted by a secretary . ”

“ Within DATE of the date on which they receive proposals from the local boards , the county boards shall determine whether the former owners or their successors are entitled to the restitution of their property or to compensation , and shall issue decisions to that effect . Such decisions shall be communicated within DATE to the former owners or their successors in title ... and to the entities in possession of the property ... The boards ' decisions shall be adopted by majority vote . ”

“ Decisions of the county boards ... shall be subject to review by the national courts and may be challenged , in accordance with civil law , within DATE of being communicated . ”

“ ... On the basis of the decision of the county board or , as the case may be , the final judicial decision , the person granted restitution of the property shall apply to be entered in the land register as the owner .

The decision of the county board or , as the case may be , the final judicial decision shall amount to a document of title to the property . ”

“ CARDINAL . The measures provided for in PERSON no . NORP by way of reparation shall be available only to the former owners of residential property which passed lawfully as such into the ownership of the State ... and their successors in title ...

Residential property which passed lawfully as such into ORG ownership denotes buildings which were nationalised as buildings intended for residential use pursuant to a statutory provision in force on the date on which they passed into ORG ownership , such as Decree no . CARDINAL/CARDINAL ... ”

“ Section CARDINAL [ of PERSON no . LANGUAGE ] shall be supplemented by the following paragraphs :

Residential property which passed into ORG ownership in breach of the statutory provisions in force on the date in question , or in the absence of any statutory provision forming a legal basis for the ORG 's title to it , shall be deemed to have passed unlawfully into ORG ownership and to fall outside the scope of PERSON no . DATE .

Property falling outside the scope of PERSON no . DATE and to which the ORG does not have a valid document of title may be the subject of an application for restitution or compensation under the ordinary procedure . ”

“ ( CARDINAL ) ORG property wrongfully seized by the ORG , a cooperative organisation or any other artificial person DATE and DATE and property expropriated under LAW ( Law no . CARDINAL/CARDINAL ) that has not been returned shall be subject to restitution , normally consisting of the return of the property in question , in accordance with the provisions of this LAW .

( CARDINAL ) Where the property can not be returned , alternative measures of redress shall be taken . Such measures may consist of compensation in the form of other items or services offered in exchange by the occupier , subject to the applicant 's consent , the allotment of shares in commercial companies listed on the stock market , securities at face value used exclusively in the privatisation process or pecuniary compensation . ”

“ Every obligation to do or not to do something shall give rise to compensation in the event of non - performance by the obligor . ”

At the material time Article CARDINAL was worded as follows :

“ Where a judgment has been quashed and remitted to the court below , the decision delivered following an appeal as to points of law shall be binding on the lower court . ”

That provision was amended as follows by Government Emergency Ordinance no . CARDINAL :

“ Where a judgment has been quashed and remitted to the court below , the decision delivered following an appeal as to points of law and the need to take further evidence shall be binding on the lower court . ”


KOCAROVA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

The applicant , PERSON , is a citizen of the former GPE who was born in DATE and lives in GPE . She is represented before the ORG by PERSON and PERSON , lawyers practising in Stip , in the former GPE .

In or DATE Mr P.S. , the applicant ’s brother , instituted civil proceedings before the then ORG ( PERSON Суд Струмица ) for termination of a care agreement ( “ the agreement ” ) that he had concluded on DATE with Mr G.P. Mr DATE claimed that Mr ORG had not provided him with a regular financial assistance , as specified by the agreement . Under the agreement , PERSON was authorised to collect the rent obtained from Mr PERSON ’s movable and immovable property , which would then have been transferred in his possession after Mr ORG death .

On DATE ORG granted Mr DATE ’s application and terminated the DATE agreement . After examining considerable evidence , namely several witnesses , the parties to the proceedings and the correspondence between them , the court found that the agreement had not been carried out , as Mr P.S. had sufficient financial means and it had been he who had actually given money to Mr G.P , contrary to what had been agreed .

On DATE the then ORG upheld PERSON appeal and quashed the lower court ’s decision , as it had not properly established whether the latter had fulfilled his obligations under the agreement .

On DATE ORG upheld Mr P.S. ’s claim and terminated the agreement . After examining other witnesses and additional correspondence between the parties , the court held that PERSON had not provided Mr PERSON with a regular financial maintenance as agreed .

On DATE ORG upheld PERSON appeal and remitted the case for a fresh consideration . It held that the trial court had not been established by law , as the case had been tried by a single judge instead of by a panel of judges .

On an unspecified date in DATE Mr P.S. passed away . The latter ’s heirs , including the applicant , instituted inheritance proceedings concerning his property . By a court decision of DATE , they were instructed to institute separate civil proceedings to determine the ownership of the property at stake and to take over Mr PERSON ’s case . It appears that this decision was subsequently overturned by ORG decision of CARDINAL DATE , by which the inheritance proceedings had been stayed . Mr ORG heirs , including the applicant , took over the case and joined the proceedings complained of .

On DATE ORG upheld Mr P.S. ’s claim and terminated the agreement . The court held that the number of contacts between Mr G.P. and Mr P.S. had diminished over time and stopped DATE before the latter ’s death ; that PERSON had not given the DATE financial support to Mr P.S. as agreed and that it was the applicant who had started caring for him instead . It established that the applicant , despite prior misunderstandings with her late brother , had endeavoured to improve their personal relationships . The court also found that Mr DATE , as recognition of the applicant ’s efforts , had vowed that after his death all his property should be transferred in her possession .

On DATE ORG dismissed PERSON appeal and upheld the lower court ’s decision . It overturned it in part concerning the trial costs entitling the applicant and the other heirs of Mr DATE to collect the reduced award .

On DATE Mr ORG submitted to ORG an appeal on points of law ( ревизија ) .

On DATE the applicant states that she was provided with a copy of it .

On DATE PERSON lodged with FAC a request for re - opening of the proceedings ( предлог за повторување на постaпката ) . He claimed that the courts had wrongly accepted the applicant and the others as claimants in the instant proceedings , as there had been no court decision ascertaining them as Mr PERSON ’s heirs . He further claimed that the courts had wrongly considered Mr PERSON as a party to the proceedings after his death . He also referred to another care agreement of DATE concluded between the same parties and to ORG decision of DATE , adopted in different set of proceedings , by which he had been allegedly recognised as an owner of the property on the basis of the DATE agreement .

On DATE ORG Instance dismissed PERSON request for re - opening of the proceedings . It found that ORG decision of DATE had been made in administrative contentious proceedings ( управен спор ) concerning administrative decisions for payment of personal income tax related to Mr ORG property . ORG had referred in this decision to ORG decision of DATE by which the inheritance proceedings concerning Mr PERSON ’s property had been stayed , as it had already been transferred into Mr ORG ownership by virtue of the DATE and DATE agreements . The court held that the facts , which ORG had referred to in its decision of DATE , could not be regarded as a new evidence that had been unknown to PERSON during the proceedings and that consequently , they could not be considered as a proper ground for re - opening of the proceedings . The court used the same reasoning to dismiss the other arguments for re - opening of the proceedings .

On DATE ORG upheld PERSON appeal and overturned the lower court ’s decision . It granted his request for re - opening of the proceedings and quashed the decisions of CARDINAL DATE and DATE , respectively , by which the DATE agreement had been terminated . It held that the evidence provided by PERSON had been new and that he could not have used it in the previous proceedings .

On DATE the public prosecutor lodged with ORG a request for the protection of legality ( барање за заштита на законитоста ) against the appeal court ’s decision , as it had been incoherent and had lacked sufficient reasoning as to how the newly discovered evidence could have been beneficial for the party concerned if admitted in the previous proceedings .

On DATE ORG upheld the public prosecutor ’s request and quashed ORG decision of DATE .

On DATE the ORG dismissed PERSON appeal against the court ’s decision of DATE . It reiterated the lower court ’s reasoning to dismiss PERSON request for re - opening of the proceedings .

On DATE ORG rejected ( отфрла ) the appeal on points of law of DATE submitted against ORG decision of CARDINAL DATE . The court considered it as inadmissible as the value of the dispute fell below the statutory threshold . It accordingly rejected Mr ORG ’s appeal on points of law filed against ORG decision of CARDINAL DATE .


Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in GPE . He is represented before the ORG by Mr PERSON and Mr PERSON , lawyers practising in GPE .

The applicant was director general of ORG ( Maa - amet ) at the material time . On DATE a criminal investigation was opened in respect of a number of land transactions involving the acquisition by private persons of plots of land covered by the rules on nature protection and the exchange of these plots for more valuable land owned by the ORG .

On DATE the applicant was charged with abuse of his official position and taking a bribe . On DATE he was taken into custody . His detention was authorised by ORG ( maakohus ) on DATE . On DATE ORG ( ringkonnakohus ) dismissed an appeal by the applicant . That decision was not subject to appeal .

On DATE the public prosecutor dismissed a request by the applicant for release . On DATE a similar request was dismissed by ORG . The applicant 's release was ordered by the public prosecutor on DATE .

In the meantime , the applicant appealed to ORG ( NORP ) , arguing that the provision of LAW ( ORG seadustik ) by which no appeal lay against a ORG decision concerning detention was unconstitutional . On DATE ORG declined to examine the complaint on the merits as in accordance with LAW , the LAW and its case - law , it could do so only if the applicant had no other judicial remedy . However , in the case at hand he had had such remedies : his complaint against the ORG decision authorising his detention had been examined by ORG and his subsequent request for release had been examined by ORG .

On DATE ORG , at the public prosecutor 's request , suspended the applicant from serving as the director general of ORG for the duration of the criminal proceedings . On DATE ORG upheld the decision , finding that his suspension had been lawful and well - founded as his continuing service would have adverse effects on the criminal proceedings . ORG noted :

“ ... [ S]uspension from office in the present case is a proportionate remedy as it is possible for [ the applicant ] to continue the commission of analogous criminal offences ( on ... võimalik jätkata analoogsete kuritegude toimepanemist ) specifically in connection with the post he holds ; cooperation between [ the applicant ] and his subordinates is also complicated as the subordinates are witnesses in the present case .

ORG finds that as criminal offences relating to abuse of power are involved , remaining in service in the same post would enable the suspect to continue the commission of criminal offences of the same kind ( võimaldab ... samalaadsete kuritegude toimepanemist jätkata ) . ... ”

LAW seadustik ) provides as follows :

“ A suspect or accused shall be suspended from office at the request of ORG and on the basis of an order of a preliminary investigation judge or a court ruling if :

( CARDINAL ) he or she may continue to commit criminal offences ( võib jätkuvalt toime panna kuritegusid ) in the event that he or she remains in office ;

( CARDINAL ) his or her remaining in office may prejudice the criminal proceedings . ”


Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings

The applicant was born in DATE and lives in GPE .

On DATE the applicant was taken into police custody by police officers from the anti - terrorist branch of ORG on suspicion of membership in an illegal organisation , the ORG ( ORG of GPE ) and of possessing a false identity card . He was held in police custody until DATE .

On DATE he was brought before a judge who ordered his detention on remand . He asserted that he had not signed any statement and claimed that he had been subjected to ill - treatment while in police custody .

On DATE ORG at ORG filed a bill of indictment with the latter charging the applicant under LAW with membership of an illegal organisation .

On DATE the applicant was released from detention .

DATE and DATE ORG held DATE hearings . The applicant requested to be released pending trial several times before the trial court . ORG dismissed his request on all occasions , having regard to the state of the evidence , until DATE .

On DATE ORG requested ORG to carry out an analysis as to whether the documents , which were submitted as written evidence , were drafted by the applicant and another co - accused , namely ORG ..

Until DATE the trial court postponed the hearings in order to wait for ORG report on the issue and to be informed about the prison that ORG had been detained .

On DATE ORG ordered that the criminal proceedings against the applicant be terminated on the ground that the statutory time - limit under LAW and ORG of LAW had expired .


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

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

NORP In DATE criminal proceedings were instituted against the applicant and his accomplices on charges of counterfeiting money and of other offences .

On DATE a bill of indictment was preferred .

ORG held hearings on DATE , CARDINAL May and DATE . On DATE it ordered that the investigation be resumed . The time - limit for the completion of the investigation was prolonged on DATE and DATE , and also at the hearings on DATE , DATE and CARDINAL DATE . Simultaneously , legal assistance was being sought from the NORP authorities .

Further hearings took place on DATE , DATE , DATE and DATE . At the hearing on DATE the case against CARDINAL co - defendants was separated since they were abroad . Another hearing was held on DATE .

On DATE ORG convicted the applicant of abuse of explosives and sentenced him to CARDINAL months’ imprisonment , suspended for DATE .

On DATE the ORG - ORG quashed this judgment , essentially for procedural shortcomings , and remitted the case . It ordered that the case be given priority .

In the resumed proceedings the case fell within ORG jurisdiction acting at first instance due to a legislative change .

ORG held hearings on DATE and CARDINAL , DATE and DATE . On the latter date it appointed a medical expert . A further hearing was held and another expert appointed on DATE .

DATE Additional hearings took place on DATE , DATE , DATE , CARDINAL DATE and DATE .

After further hearings on DATE , DATE and CARDINAL DATE , on CARDINAL DATE the court convicted the applicant of abuse of explosives and sentenced him to CARDINAL months’ imprisonment , suspended for DATE . For the applicant , the judgment became final on DATE .


CASE OF ŠABANOVIĆ v. MONTENEGRO AND SERBIA

Remainder inadmissible;Violation of Art. 10;Just satisfaction dismissed (out of time)

Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant was born in DATE and lives in ORG .

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

On DATE a ORG DATE newspaper published an article about the quality of the water in the ORG area , entitled “ Taps full of bacteria ” ( GPE pune bakterija ) . The article stated that all of the current water sources contained various bacteria . These assertions were based on a report produced by ORG NORP za zdravlje PERSON ) , which had been requested by the Chief ORG ( PERSON republički vodoprivredni inspektor , hereinafter “ the Chief Inspector ” ) , apparently with a view to exploring the possibility of connecting additional sources to the water - supply grid . The same article also included a statement by the applicant , at that time the Director of a public corporation called “ The Water Supply and ORG ” ( PERSON i GPE , hereinafter “ ORG ” ) and a member of ORG ( SNP ) , that he was not familiar with the analysis at issue , but that the water was regularly tested and always filtered before being pumped into the system .

On DATE the applicant held a press conference in response to the above - mentioned article . The applicant stated that , firstly , all tap water was filtered before being pumped into the water - supply system and was thus safe for use by the public . Secondly , ORG had been promoting the interests of the CARDINAL private companies which had already been granted licences to develop additional water sources and , lastly , ORG had been directed to do so by ORG of Socialists ( DPS ) and the companies in question had themselves obtained their licences unlawfully . The statement was published in DATE newspapers .

On DATE the Chief Inspector lodged a private criminal action ( privatna krivična tužba ) against the applicant for defamation ( kleveta ) , claiming that the latter ’s statements were untrue and , therefore , harmful to his honour and reputation .

On DATE ORG ( PERSON ) in GPE held the main hearing , during which the applicant said that his statement was not defamatory , but that “ it was a value judgment , which he could prove ” . He stated that he had been informed about the results of the water analysis DATE after the press conference , and the analysis clearly stated that the water from the water - supply system was of the necessary quality and was not a danger to health . He explained that there were obviously CARDINAL reports , CARDINAL concerning the water sources and CARDINAL concerning the filtered water . He did not dispute the right of ORG to ask for a water analysis , as it was his duty to do so , but the applicant did not think that the analysis of unfiltered water should have been published , but rather the analysis of the filtered water . Finally , he proposed that the court should read the article “ Taps full of bacteria ” to understand the context in which the impugned statement had been made , and that it should obtain the files concerning other proceedings ongoing at the time between ORG and the CARDINAL private companies in question .

At the same hearing the court also heard the Chief Inspector . He stated that he had always worked professionally and that he did not work under anybody ’s orders , he himself having filed a criminal complaint against CARDINAL of the CARDINAL companies . He stated that he had ordered the analysis at issue after consulting his Minister , who had “ supported ” him ( “ koji [ me ] je podržao u tome ” ) . He emphasised that the title of the newspaper article had had nothing to do with him , as newspapers wrote what they deemed appropriate ( “ novine pišu [ ... ] po sopstvenom nahođenju ” ) , although they were contacting him to obtain data . However , he was not interested in what the newspapers had written on this particular issue or why they had not published the analysis of the filtered water ( “ nije me interesovalo zašto nijesu objavljivali o analizi tretirane vode ... ” ) , his main concern being to prove that a particular water source was of adequate quality and that it could be used .

On DATE the court found the applicant guilty and sentenced him to CARDINAL months’ imprisonment . This sentence , however , was suspended and was not to be enforced unless the applicant committed another crime within DATE .

In the operative part of the judgment only the following statement was found to amount to defamation , that is , to be “ untrue ” and “ harmful to the honour and reputation of the private prosecutor ” :

“ The Inspector [ ... ] works in the interest and at the request of [ the CARDINAL companies ] , as directed by the DPS ” .

In its reasoning the court stated that the statement made by the applicant was not supported by facts and rejected the applicant ’s defence that it was merely a value judgment . In the court ’s view the applicant had been aware that he might harm the honour and reputation of the private prosecutor and thus had had a defamatory intention ( klevetnička namjera ) . The court refused to read the newspaper article or to request the files of the proceedings referred to by the applicant as that would only have delayed the proceedings and , in any event , neither was relevant for the proceedings at issue .

On an unspecified date thereafter the applicant lodged an appeal . He stated that , firstly , ORG had sought the said analysis in order to examine the possibility of connecting water sources administered by the CARDINAL private companies to the water - supply grid . Secondly , there were CARDINAL water analyses , before and after it had been filtered , but ORG had provided the newspapers only with the analysis of the unfiltered water . Thirdly , the Chief Inspector himself had not responded to the misleading title of the article stating that the taps were full of bacteria , because he was “ not interested ” in it . Fourthly , the court had refused to read the newspaper article , without which it was impossible to conclude that his intention had been to defame the private prosecutor . Finally , he did not think it was defamatory to say that a “ government official worked as directed by the ruling party ” , or that his response to such an article could be considered to amount to defamation of the private prosecutor .

On DATE the judgment of DATE was upheld by ORG ( ORG ) in GPE , which fully endorsed the reasons given by ORG . No effective appeal lay against this judgment to ORG and GPE ( see paragraphs CARDINAL and CARDINAL below ) .

Article CARDINAL § CARDINAL of the LAW provided that both member GPE shall regulate , safeguard and protect human rights in its territory .

The relevant part of LAW provided that ORG and GPE shall examine complaints lodged by citizens in cases where an institution of GPE and GPE has infringed their rights and freedoms as guaranteed by LAW , if no other legal redress has been provided .

Section CARDINAL § CARDINAL provided for the freedom to publicly express one ’s opinion .

Section CARDINAL § CARDINAL stipulated that citizens have the right to express and publish their opinions via the mass media .

NORP The relevant provisions of this LAW read as follows :

“ Whoever , in relation to another , asserts or disseminates a falsehood which can damage his honour and reputation shall be fined or punished by imprisonment not exceeding DATE .

Whoever commits CARDINAL of the acts described in [ the above ] paragraph ... through the press , via radio or television ... [ , in another manner through the mass media , ] ... or at a public meeting shall be punished by imprisonment not exceeding one year .

If the defendant proves his claims to be true or if he proves that he had reasonable grounds to believe in the veracity of the claims which he made or disseminated , he shall not be punished for defamation , but may be punished for the offence of insult ... ”

“ The defendant shall not be punished for insulting another person if he does so in ... a serious critique , in the performance of his official duties , [ ... ] in defence of a right or of a justified interest , or if from the manner of his expression it transpires that there was no intent to disparage . ”

“ In handing down a suspended sentence , the court shall impose a punishment on a person who has committed a criminal act and at the same time order that this punishment shall not be enforced if the convicted person does not commit another criminal act for a [ specified ] period of time , which can not be CARDINAL or DATE in all ( period of suspension ) . ”

“ In deciding whether or not to impose a suspended sentence , the court shall take into account the purpose of [ this ] sentence , the personality of the offender , his conduct prior to and following the commission of the criminal act , the degree of his criminal liability , as well as all the other circumstances under which the act was committed . ”

“ The court shall revoke the suspended sentence [ and order its execution ] if , during the period of suspension , the convicted person commits CARDINAL or more [ additional ] criminal acts for which he is sentenced to imprisonment for a term of or exceeding two years .

If , during the period of suspension , the convicted person commits CARDINAL or more [ additional ] criminal acts and is sentenced to imprisonment for a term not exceeding DATE or to a fine , the court shall , upon consideration of all the circumstances ... including the similarity of the crimes committed ... decide whether or not to revoke the suspended sentence ... ” .

The Government referred , inter alia , to ORG ( adopted by the UNECE – United Nations Economic Commission for LOC – on DATE ) .

Section CARDINAL § CARDINAL(c ) of that convention provides that in the event of any imminent threat to human health or the environment , whether caused by human activities or due to natural causes , all information which could enable the public to take measures to prevent or mitigate harm arising from the threat and is held by a public authority is disseminated immediately and without delay to members of the public who may be affected .

On DATE ORG of ORG DATE ) , Towards decriminalisation of defamation , in which it urged those member GPE which still provide for prison sentences for defamation , even if they are not actually imposed , to abolish them without delay .


THE SYNOD COLLEGE OF THE EVANGELICAL REFORMED CHURCH OF LITHUANIA v. LITHUANIA

The applicant church , the Synod College of the Evangelical Reformed Church of Lithuania , is based in GPE . It was represented before the ORG by PERSON , a lawyer practising in GPE . The respondent Government were represented by PERSON , Agent of the Government .

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

Since DATE ORG had owned an apartment building of QUANTITY in the centre of GPE ( “ the building ” ) . In DATE , following the NORP invasion in GPE , the building was nationalised . In DATE the independence of GPE was re - established .

During the period from DATE ORG ( seniūnija ) transferred ownership rights of CARDINAL apartments in the building to the tenants of those flats under LAW .

Decisions of ORG of DATE

On DATE ORG ( valdyba ) adopted a decision to return the building to ORG based on ORG .

On DATE an executive branch of ORG took a decision to hand over the building to ORG .

On DATE the necessary formalities were finalised whereby ORG was handed over the control of the building .

Annulment of the decisions of CARDINAL and DATE

ORG

The tenants brought court proceedings to quash the administrative decisions of CARDINAL and DATE . ORG filed a counter - claim , asking the court to declare null and void the contracts of privatisation of the flats between ORG and the tenants .

On DATE the FAC satisfied the claim of the tenants . The court quashed the decisions of CARDINAL and DATE , holding that ORG had required the local authority to provide the former tenants with appropriate housing when deciding to restore property rights of the former owner . The court also held that , pursuant to ORG , houses and apartments that had leasehold tenants could not be returned to former owners . ORG and ORG appealed against this decision .

By a decision of DATE ORG transferred the rights to the building and the claims thereto to ORG .

On DATE the ORG quashed the judgment of ORG and dismissed the tenants’ claims . ORG found that ORG nullified the relevant NORP regulation of DATE under which churches and other property of religious communities had been nationalised . The court held that since the adoption of the law in DATE the ORG had had no property right to the building in question , and that the flats therein could not be privatised . Accordingly , the contracts of privatisation between ORG and the tenants had been null and void . ORG confirmed the validity of the decisions of CARDINAL and DATE .

The tenants lodged a cassation appeal against the above decision , alleging that the flats in question were in fact their property .

On DATE ORG examined the case acting as a court of cassation . It agreed with the tenants , reversing the decision of ORG and upholding the judgment of the first - instance court .

ORG noted that the nationalisation of the building had been based on a NORP regulation of DATE , and not by that of DATE as it had been stated by ORG . Accordingly , ORG could not apply in the instant case .

ORG recalled the decision of ORG of DATE , stating that only from the moment of the decision of a competent authority to return the property in kind or to compensate therefor did the former owner acquire a property right .

ORG ruled that the right of ORG to control the building had been restored by the decision of ORG of DATE , that is , after the tenants had bought the flats in accordance with ORG . Therefore ORG , at the time when it had decided to return the building to the former owner , had no longer had ownership rights of the CARDINAL flats constituting part of the building . ORG had not therefore had the right to return the building in its entirety to the former owner . ORG also noted that ORG had not barred privatisation of flats in a building formerly owned by a religious community . ORG quashed the decisions of CARDINAL and DATE and confirmed the tenants as the lawful owners of the flats .

ORG found that ORG was entitled to restitution of its property rights in respect of the building in accordance with ORG . Under the above law , however , no return of the whole building was possible . ORG noted in the reasoning part of the judgment that ORG will have to decide newly with the question of the property rights of ORG in accordance with the applicable domestic legislation ( also see the ‘ Relevant domestic law and practice ORG below ) . ORG did not order the local authority to conduct any specific actions in this connection .

Proceedings concerning the charges for heating

On an unspecified date in DATE a communal services company of the local authorities ( “ the company ” ) brought a court action against ORG , claiming that the applicant church had not paid for heating of the building during a period from DATE . On DATE the FAC rejected the action as unsubstantiated .

On DATE ORG quashed the decision , accepting the company ’s action and awarding damages against the applicant church for the unpaid charges for heating during the period from ORG until DATE . The court found that on DATE the control over the building had been handed over to ORG . It was further established that on DATE , in view of the judgment of ORG of DATE , the control over the building had been transferred back to the local authorities . The court found that the applicant church had entered into a contract with the company to pay for heating of the building , and that they had breached their contractual obligations . It was established that during the period from DATE until CARDINAL DATE the applicant church had controlled the use of the building and that it had , through a subsidiary unit , executed the functions of managing the building , of renovation , and of payment for communal services . The court found inter alia that the applicant church had the right to enter into sub - contracts with the tenants in order to act on their behalf in managing the payment of communal charges for the building . It stressed that the outcome of the proceedings concerning the validity of the decisions to restore the applicant church ’s property rights had no bearing on the obligation for the applicant church to perform its contractual duties .

The applicant church did not state that it appealed against this decision .

Administrative proceedings

On an unspecified date in DATE the Synod College of ORG filed an administrative action against the Government , claiming damages in the amount of CARDINAL litai ( LTL ) in connection with the failure of the Government to prevent the privatisation of the CARDINAL flats and the authorities’ refusal to return the whole building to the applicant church .

On DATE ORG rejected the action as unsubstantiated . On DATE ORG upheld the lower court ’s judgment . It found inter alia that the lawfulness of the privatisation of the flats had been established by the final judgment of ORG of DATE . No fault was attributed to the Government . ORG also noted that the applicant church had been entitled to file a civil action against a ORG authority if it considered that it had been prevented from making its property claims under the applicable domestic legislation .

ORG for return to religious communities of property nationalised by a specific NORP regulation of DATE .

ORG deals with instances of nationalisation of church property other than those specified in LAW . LAW provides for CARDINAL forms of “ restitution of property rights ” ( nuosavybės teisių atkūrimas ) : CARDINAL ) return of property in certain circumstances ; CARDINAL ) compensation in others ; compensation can be made in money or alternative items . LAW specifically bars a return in kind of buildings having tenants or owners of flats ( paragraphs CARDINAL and CARDINAL ) . Under LAW , an appropriate form of compensation should be chosen by the former owner if the property can not be returned in kind .

The Privatisation of Flats Act DATE specifies the conditions for tenants to privatise flats in apartments and houses in the ORG possession .

On DATE ORG examined the issue of compatibility of the LAW with the domestic laws on restitution of property rights . In its decision ORG held inter alia that possessions which had been nationalised by the NORP authorities since DATE should be considered as “ property under the de facto control of the ORG ” . ORG also stated : “ The rights of a former owner to particular property have not been restored until the property is returned or appropriate compensation is paid . The law does not itself provide any rights while it is not applied to a concrete person in respect of a specific property item . In this situation the decision of a competent authority to return the property or to compensate therefor has such a legal effect that only from that moment does the former owner obtain property rights to a specific property item . ” ORG also held that fair compensation for property which could not be returned was compatible with the principle of the protection of property .

In decisions of DATE and DATE the ORG emphasised that the notion of restitution of property rights in GPE essentially denoted partial reparation . In this respect ORG noted that the authorities of GPE as a re - established ORG in DATE were not responsible for the NORP occupation DATE , nor were they responsible for the consequences of that occupation . ORG held that since DATE many private persons had bought , in accordance with the legislation applicable at the material time , various property items which had been previously nationalised . The denial of these factual and legal aspects was impossible , and the domestic legislation on restitution of property rights duly took into account not only the interests of the former owners , but also the interests of private persons who had occupied or purchased the property under lawful contracts .

On DATE ORG also said that the choice by ORG partial reparation principle was influenced by the difficult political and social conditions in that “ new generations had grown , new proprietary and other socio - economic relations had been formed during DATE of occupation , which could not be ignored in deciding the question of restitution of property ” .


Violation of Art. 8;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed

The applicant was born in DATE and lives in GPE .

In DATE the applicant became pregnant .

In TIME , in DATE of pregnancy , the embryo asphyxiated in the womb . On DATE the applicant gave birth to a stillborn baby boy and decided to bury him .

On DATE the stillbirth was registered by the NORP branch of ORG ( NORP отдел ORG ) . PERSON , who had been the applicant 's husband until their divorce on DATE , was entered as the stillbirth 's father in the birth certificate ( акт о рождении ) and in the birth register ( книга записей рождений ) .

NORP The applicant submitted that the biological father of the stillbirth had been Mr PERSON , with whom she had been living as man and wife since DATE . PERSON had expected the child and talked about their future son as his own . They could not , however , file a joint declaration establishing the child 's paternity because PERSON had been placed in a detention facility on DATE . It appears that the applicant had no access to her partner after that date . On DATE PERSON died in custody .

The applicant refused to put her former husband 's surname on the stillborn child 's tombstone and left it empty .

On DATE the applicant requested the ORG of GPE to establish PERSON paternity in respect of the stillbirth and amend the child 's surname and patronymic name accordingly . In NORP , patronymic names are normally formed from the father 's forename and a special ending , -ovich for sons or -ovna for daughters . The applicant relied on LAW .

On DATE the applicant 's former husband died .

On DATE the ORG of GPE gave its decision . It held that the stillborn child had not acquired civil rights , whereas DATE LAW only applied to living children . It ordered the discontinuation of the proceedings because “ [ the applicant 's claim ] was not fit for examination and determination in the framework of civil proceedings ” .

On DATE ORG , on an appeal by the applicant , upheld the decision of DATE . The court repeated that “ the case could not be examined as a civil action because the child had not acquired civil rights ” .

The Russian Civil Code ( Law of DATE ) provides that a person 's legal capacity shall begin at the moment of birth and terminate on death ( LAW ) .

LAW of DATE ) provides :

“ CARDINAL . If a child is born to parents who are married to each other or within DATE of their divorce ... or the death of the spouse of the child 's mother , the spouse ( former spouse ) of the mother shall be deemed to be the father of the child unless proved otherwise ...

NORP If the child 's mother declares that her spouse ( former spouse ) is not the child 's father , the child 's paternity shall be established in accordance with paragraph CARDINAL of this LAW CARDINAL of this Code .

The paternity of a person who is not married to the child 's mother shall be established on the basis of a joint declaration filed by the father and mother of the child ... ”

“ If a child is born to parents who are not married to each other and there is no joint declaration or declaration by the child 's father ( LAW of this Code ) , the paternity of the child shall be established in court proceedings on the application of either parent ... [ In such proceedings ] the court shall have regard to any evidence that establishes the child 's paternity with certainty . ”

“ If the person who acknowledged the paternity of the child but was not married to his / her mother dies , the fact of his having acknowledged paternity may be established by a court in accordance with the rules on civil procedure . ”

“ CARDINAL . If the father and mother are married to each other they shall be entered as the child 's parents in the birth register on the basis of an application lodged by either of them .

NORP If the parents are not married to each other the mother 's particulars shall be entered on an application by her , and the father 's particulars entered on a joint application by the father and mother of the child , or on an application by the father of the child ( paragraph CARDINAL of LAW ) or pursuant to a judicial decision ... ”


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Positive obligations;Article 2-1 - Life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

The applicant was born in DATE and lives in PERSON .

The applicant was married . The marriage produced CARDINAL children : a daughter who was born in DATE and a son who was born in DATE .

On DATE the applicant filed a criminal complaint against her husband with ORG ( ORG oddelenie ORG zboru ) . She accused him of having assaulted and beaten her with an electric cable DATE . She submitted a medical report by a trauma specialist indicating that her injuries would incapacitate her from work for DATE . The applicant also stated that there was a long history of physical and psychological abuse by her husband .

At an unspecified time DATE the applicant and her husband went to FAC . They sought to withdraw the applicant 's criminal complaint . A police officer , PERSON , advised them that , in order to avoid a prosecution , they would have to produce a medical report showing that after the incident on DATE the applicant had not been incapacitated from work for DATE . The applicant produced such a report on DATE .

On DATE officer PERSON decided that the above matter was to be dealt with under LAW ( Law no . PERSON . ) and , under section CARDINAL(CARDINAL)(a ) of that LAW , decided to take no further action ( odloženie veci ) .

During TIME DATE a relative of the applicant called the emergency service of ORG to report that the applicant 's husband had a shotgun and was threatening to kill himself and the children . The applicant herself made a similar phone call later that night . The phone calls were received by a police officer , PERSON , who instructed a police officer , Mr PERSON , to arrange for a police patrol to visit the LOC . The patrol found the applicant in the village of GPE GPE . The applicant 's husband had left the scene prior to their arrival . The policemen took the applicant to her parents ' home and invited her to come to the police station TIME so that a formal record of the incident could be drawn up .

In TIME DATE the applicant , accompanied by her brother , went to the GPE FAC , where she spoke to a police officer , Mr LOC

In TIME of DATE the applicant and her brother went to ORG , where she talked to officer PERSON She enquired about her criminal complaint of DATE and also mentioned the incident of TIME DATE .

On DATE TIME the applicant 's husband shot their CARDINAL children and himself dead .

On DATE the Košice Branch of ORG ( Úrad inšpekčnej služby NORP zboru – “ the ORG ” ) charged officer GPE with abuse of public authority ( LAW ) of LAW ) on the ground that on DATE he had failed to accept and duly register the applicant 's criminal complaint and to commence criminal proceedings against the applicant 's husband immediately .

On DATE ORG charged officer PERSON with dereliction of duty ( LAW ( b ) of LAW ) on the ground that on TIME DATE he had failed to take appropriate action in response to the emergency calls from the applicant and her relative , in particular , to launch a criminal investigation , to keep a proper record of the emergency calls and to advise the next shift of the situation and of the fact that the applicant would be visiting the police station TIME to file a formal criminal complaint .

On DATE ORG charged officer PERSON with abuse of public authority ( LAW ( a ) of LAW ) for altering records pertaining to the applicant 's criminal complaint of DATE and arbitrarily treating it as a minor offence calling for no further action .

On DATE ORG commenced criminal proceedings against an unknown police officer for abuse of public authority ( LAW ( a ) of LAW ) in connection with an allegation that on DATE he had wrongfully refused to register a criminal complaint from the applicant concerning the incident of TIME DATE . These proceedings later resulted in charges against officer PERSON On DATE ORG charged officer PERSON with abuse of public authority ( LAW ( a ) of LAW ) on the ground that on TIME DATE he had failed to take appropriate action in connection with the allegations that the applicant 's husband had threatened violence . He was accused , inter alia , of having omitted to carry out a search in the register of firearms and firearms licence holders .

On DATE the ORG ( Vojenský obvodný prokurátor ) discontinued the proceedings that had been commenced on DATE and had subsequently led to the charges against officer PERSON After examining documentary evidence and testimony by the applicant , the accused and witnesses , the prosecutor found that the purpose of the applicant 's conversation with officer PERSON on the morning of CARDINAL December CARDINAL had not been to lodge a new formal criminal complaint against her husband . She had merely sought information about the state of the proceedings further to her criminal complaint of CARDINAL DATE and there was no suspicion that officer PERSON had committed any criminal offence .

On DATE ORG ( PERSON úrad vyšetrovania ) discontinued the criminal proceedings instituted against officer PERSON on DATE . Observing that he had acted in good faith and in accordance with the applicant 's express wishes , the investigator decided that the actions of officer PERSON had not involved the element of social gravity that was requisite in order to constitute a criminal offence . The investigator also observed that officer PERSON had already been discharged from the police and that therefore no disciplinary proceedings could be brought against him . The applicant challenged this decision by means of a complaint which ORG declared inadmissible on DATE , finding under LAW ( ORG ) that she had no right to make it .

On DATE ORG summoned officers PERSON , GPE and GPE for trial in ORG ( ORG súd ) on a charge of negligent dereliction of duty ( LAW ( b ) of LAW ) in connection with the above events . The summons set out in detail the internal regulations of ORG the officers were alleged to have breached .

On DATE , following a hearing on DATE in which the applicant took part through the intermediary of her lawyer , ORG dismissed the summons . It found that the criminal offence of dereliction of duty presupposed a complete or enduring failure to discharge the duty . Merely impeding the discharge of the duty was not enough . It found that in the present case the officers ' actions did not amount to such a failure to discharge their duty and that the connection between their actions and the tragedy of DATE was not sufficiently direct .

The applicant appeared in ORG as a witness and was not served with a copy of the judgment .

On DATE ORG ( PERSON súd ) dismissed an appeal by ORG against the judgment of DATE . No further appeal was available .

The applicant was neither officially informed about the appellate proceedings nor served with a copy of ORG judgment .

The Prosecutor General , however , challenged ORG decision of DATE by lodging a complaint in the interests of the law ( sťažnosť pre porušenie zákona ) in ORG ( Najvyšší súd ) .

On DATE ORG quashed both ORG decision of DATE and ORG judgment of DATE . ORG found that the lower courts had assessed the evidence illogically , that they had failed to take account of all the relevant facts and that they had drawn incorrect conclusions . ORG found that it was clear that the accused officers had acted in dereliction of their duties . It concluded that there was a direct causal link between their unlawful actions and the fatal consequence . ORG remitted the case to ORG for reconsideration and pointed out that , pursuant to LAW ORG , the latter was bound by its above legal views .

On DATE ORG held a hearing in which the applicant took part in the capacity of a witness . Following the hearing , on DATE , ORG found officers PERSON , GPE and ORG guilty as charged and sentenced them to , respectively , CARDINAL , DATE imprisonment . All sentences were suspended for DATE . It was found that the accused had negligently breached the applicable service regulations and had thereby caused the death of the applicant 's children . When determining the sentence , ORG took into account inter alia the fact that the accused had thus far been leading honest lives , their work appraisals were positive and officers PERSON and GPE had already been discharged from service in the police . All the accused and the public prosecution service appealed . Officer PERSON later withdrew his appeal .

On DATE ORG heard and dismissed the outstanding appeals . It found that ORG had adequately established and correctly assessed the facts and had drawn accurate legal conclusions both as regards the guilt and the sentences . No ordinary remedy was available against ORG judgment .

On DATE the applicant , who was represented by a lawyer , lodged a complaint under LAW with ORG ( Ústavný súd ) . She formally directed her complaint against ORG , maintaining that its officers ' failure to act had led to a violation of her right to protection of her personal integrity ( LAW ) , her right to protection from unjustified interference with her private life ( LAW ) and her right to legal protection ( LAW ) . She asserted that the police had been well aware of the situation that had preceded the tragedy of DATE and , in breach of their positive obligations , had failed to take the necessary action . She claimed that responsibility for this failure lay with ORG . She also maintained that the criminal proceedings which were currently pending could not afford her complete redress for the damage she had sustained .

On DATE a CARDINAL - judge bench of ORG declared the complaint inadmissible . It observed that ORG only had jurisdiction if the matter concerned did not fall within the jurisdiction of another authority . Its power to award just satisfaction in respect of non - pecuniary damage could only be exercised if ORG had substantive jurisdiction over the matter . In the present case the primary issue was whether the officers who had dealt with the applicant 's case had complied with the applicable regulations . That issue fell within the jurisdiction of the ordinary courts and was being examined in the criminal proceedings which were currently under way and in which the applicant could claim standing to intervene as an aggrieved party . A ruling on that issue could nevertheless also be sought before the civil courts . To that end , the bench observed that the applicant 's range of options was not limited to actions of the type specifically provided for by statute . The bench concluded that , in these circumstances , the applicant 's complaint was premature and ORG had no jurisdiction to entertain it .

The presiding judge , however , did not share the majority view and gave a dissenting opinion . According to him , in view of its primary purpose , namely to uphold constitutionality , ORG was free to examine complaints under the legal provisions which it considered to be the most relevant . The present case was to be examined primarily from the standpoint of the right to life and , in particular , the positive obligations inherent in that right . Contrary to the bench 's finding , and in breach of the positive obligations in question , there were no remedies available to the applicant under civil or criminal law permitting her to claim and obtain adequate and sufficient redress for her alleged nonpecuniary damage . He pointed out that not even the bench had clearly identified the remedies available to the applicant for that purpose . Finally , the presiding judge said that the principle that ORG jurisdiction was subsidiary , which was set out in LAW , was to be interpreted with a degree of flexibility in the light of the circumstances of each particular case . In his view , ORG was the only authority to which the applicant could have made her claim for compensation for nonpecuniary damage in the present case . It therefore should not have been precluded from examining the case by the possible existence of other remedies which in any event were not complete .

On DATE the applicant , who was represented by a lawyer , lodged a fresh complaint against ORG with ORG . She reiterated the arguments she had submitted in the first complaint and added that the criminal proceedings had ended without producing any positive results in respect of her complaints . She maintained that she had no remedy before any other authority as regards the non - pecuniary damage she had suffered . She concluded that ORG was therefore called upon to deal with the merits of her case . She alleged a violation of her children 's right to life ( LAW and CARDINAL of the LAW and LAW ) . She further alleged a violation of her right to protection of her personal integrity and privacy ( LAW ) , her right to protection from unjustified interference with her private and family life ( LAW ) , her right to legal protection ( LAW ) , her right to security of person ( LAW ) and her right to respect for her private and family life ( LAW ) .

On DATE ORG declared the complaint of CARDINAL DATE inadmissible , holding that it had no jurisdiction to entertain it . In this context ORG held that the principal questions of whether there had been any illegal action causing damage to the applicant and who was responsible for it fell to be determined by the ordinary courts . More specifically , the question of whether a crime had been committed in connection with the events complained of was to be determined in criminal proceedings . ORG noted that in the criminal proceedings in the present case the applicant had failed to claim standing as an aggrieved party , which would have given her a series of procedural rights enabling her to influence their outcome . The fact that the criminal courts had sole jurisdiction in the matter meant that ORG had power to intervene only if the criminal courts had acted manifestly arbitrarily . The applicant had , however , put forward no arguments to that effect . ORG further held that , in any event , in so far as the complaint pertained to ORG failure to take action in DATE , it had been submitted outside the statutory DATE time - limit . Furthermore , the applicant had no right of petition , either of her own or on behalf of her late children , in respect of the alleged violation of their right to life . Finally , part of the second complaint was in any event inadmissible as it raised issues that were res judicata by virtue of the decision of DATE .

The law concerning protection of personal integrity under Articles CARDINAL et seq . of LAW is summarised in the decision of DATE in the present case . In addition , the following judicial decisions are of relevance .

In an action in ORG ( file no . CARDINALC CARDINAL/CARDINAL ) a mother claimed , among other things , financial compensation for non - pecuniary damage in connection with the death of her daughter . She relied on the previous conviction for manslaughter of a car driver who had run over her daughter .

In a judgment of CARDINAL DATE ORG accepted that the plaintiff had suffered damage of a non - pecuniary nature and awarded her CARDINAL NORP korunas by way of compensation .

In an action in ORG ( file no . CARDINAL ) PERSON brought claims for protection of personal integrity against the ORG , in the person of the police , in connection with the death of her husband . She relied on a penal order ( trestný rozkaz ) of that court of DATE in which a police officer had been found guilty of manslaughter under Article CARDINAL § § CARDINAL and CARDINAL of LAW on the ground that , while questioning the applicant 's husband at a police station , he had failed to secure his service gun in an appropriate manner . He had thereby enabled the applicant 's husband to grab the gun and shoot himself dead .

PERSON claimed , inter alia , financial compensation for the non - pecuniary damage suffered by herself and her late husband . She later withdrew the claim while at the same time submitting a similar claim in the name of her and her husband 's daughter , Miss PERSON

In a judgment of CARDINAL DATE ORG allowed the withdrawal of the claim by PERSON and discontinued the proceedings in respect of that claim . At the same time , it dismissed the claim in the name of Miss PERSON The reasons for dismissing her claim were multiple . The ORG was not the defendant to be sued in the present case , the police having their own legal personality and the capacity to be sued . The claim was statute - barred . And finally , at the time of the tragedy Miss PERSON had only been DATE and had mainly not been living with her father . She therefore could not have suffered any trauma . The action is still pending on appeal .

Pursuant to LAW and DATE , the public prosecution service is obliged to prosecute all criminal offences of which it learns , unless a statute or an international treaty provides otherwise . Authorities involved in prosecution , that is to say the police , investigators , public prosecution service and courts , are obliged to act on their own initiative .

ORG If a criminal complaint does not contain information excluding the possibility that a criminal offence was committed , and if there are no special circumstances , the police or investigator , as the case may be , are obliged to commence criminal prosecution immediately ( LAW ) .

The concept of a criminal attempt is defined in LAW Conduct which is dangerous for society , which immediately leads to the completion of a criminal offence and which the culprit carries out with the intention to commit a criminal offence is considered a criminal attempt provided that the offence itself has not been completed . A criminal attempt is liable to the same punishment as the completed offence to which it leads .

The Act governs the organisation and powers of the police . Pursuant to section CARDINAL ) , ( b ) and ( d ) the police serve , inter alia , to protect fundamental rights and freedoms , life , health , personal safety and property , to investigate criminal offences , to identify culprits and to examine criminal complaints and other applications for a criminal prosecution to be opened .

Pursuant to section CARDINAL , a police officer on duty DATE and also , unless there are special circumstances , off duty – is obliged to intervene if a criminal offence is being committed and if there is an imminent danger to life , limb or property .


The applicant is a NORP national , born in DATE , living in GPE , GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE , GPE . The respondent Government are represented by its Agent Mr PERSON , ORG , and its Co - Agent , PERSON , ORG .

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

By indictment of CARDINAL DATE the applicant , at that time a practising lawyer , jointly with CARDINAL of his clients , henceforth called ORG , was charged with aggravated breach of trust alleged to have been committed in their roles as manager and/or chairman of the board of CARDINAL companies , owned by ORG over a short period DATE , during which period , they had let the companies purchase CARDINAL industrial properties from a company controlled by ORG at a price substantially above market value , the amount including an agency commission to ORG exceeding MONEY ( ORG ) , whereby the acquiring companies suffered or risked suffering a corresponding financial loss . The companies went bankrupt on DATE .

Moreover the applicant ( and ORG ) was charged with fraud alleged to have been committed in the same period relating to the sale of CARDINAL cars to a person henceforth called ORG under the pretence that the cars were not in pawn .

The applicant and ORG pleaded not guilty on both counts . As regards the second count they claimed that ORG acted in bad faith . Several hearings were held in ORG . During these proceedings ORG and CARDINAL other witnesses were heard , including CARDINAL witnesses henceforth called ORG , ORG and ORG .

The prosecution and the defence agreed not to hear CARDINAL witnesses henceforth called ORG and ORG .

By judgment of DATE ORG of Ballerup ( ORG ret ) convicted the applicant ( and ORG ) . The applicant was sentenced to CARDINAL years’ imprisonment and deprived of his right to practise law . From the judgment it appears that in order to convict the applicant ( and ORG ) of aggravated breach of trust the court relied partly on the testimonies given by ORG and ORG concerning the contents and aim of some particular transactions these witnesses had with ORG . As regards the charge of fraud it appears that the court relied partly on the testimonies given by ORG and IK concerning the sale of the CARDINAL cars .

The applicant ( and ORG ) appealed against the judgment to ORG of Eastern GPE ( PERSON ) . During these proceedings CARDINAL witnesses were heard , including ORG , ORG , ORG and ORG . As regards these witnesses the applicant expressed doubts during the proceedings in ORG as to their credibility and therefore requested the prosecution to provide information about their criminal records , and that counsel for the defence be allowed to ask questions , in writing , about any pending charges which might have been brought against them concerning financial crime . In accordance with LAW ( PERSON ) this was complied with . ORG and ORG confirmed that charges were brought against them . ORG had previously been convicted of fraud and fraudulent preference .

On DATE the High Court of Eastern Denmark upheld the judgment , but increased the sentence to DATE and CARDINAL months’ imprisonment . As regards the conviction for aggravated breach of trust ORG referred to the reasoning given by ORG . However , regarding the conviction for fraud ORG relied , in addition to the reasoning given by ORG , on testimony given by a witness who was not heard before ORG .

After the trial in ORG and due to press coverage , the applicant and counsel for the defence , accidentally became aware that within the police a so - called ORG in DATE had composed a note called “ Anti - Social Trade ” ( PERSON ) , henceforth called the note , illustrating a new pattern of crime , and outlining CARDINAL named individuals suspected of being interrelated in a network of financial crimes in GPE , mainly concerning fraudulent trading in connection with deliberate bankruptcy intentions , breaches of laws concerning bookkeeping and accounting in companies , customs and excise fraud committed in connection with car sales , and finally fraud related to the raising of credit secured on real property . Among the persons mentioned in the note were the applicant , GPE , ORG , ORG , ORG , ORG , ORG and ORG . The note contained information about judgments , charges , dropped charges , and mere suspicions against each person in regard to the above criminality , and a statement of their assumed mutual business connections . According to the note it was ascertained that this limited circle , among others , systematically exploited those loopholes and ambiguities in the NORP legislation , which sometimes arise in connection with new legislation and/or reorganisation of administrative procedures .

It appears from the introductory paragraphs of the note that ORG for ORG PERSON ) in DATE decided that ORG was to illustrate this new pattern of crime . ORG was not supposed to go into depth as to bring forth evidence to prove that crimes had been committed , it was merely intended to outline the information available . If the result turned out as expected the purpose was to have a special group appointed from several different police units , as none could manage the task alone for resource reasons . This group was then to make concrete investigations with the targeted attempt to have proceedings instituted against the individuals in question .

The note was distributed to ORG , ORG ( GPE ) , the ORG Commissioner of Police ( GPE ) and the various police districts .

The prosecution did not submit the note , either to the applicant , or to the court during the criminal proceedings against the applicant

The applicant requested leave to appeal against the above judgment of ORG to ORG ( Højesteret ) . With a view to this counsel for the defence asked the prosecution , on DATE , to submit a copy of the above note . However , access to the note was refused by ORG on DATE , by ORG on DATE and by ORG ( PERSON ) on DATE .

The applicant then brought legal proceedings before ORG of Eastern GPE against ORG requesting that counsel for the defence be given access to the note .

Before ORG as regard the nature of the note in general ORG referred to its reply of CARDINAL DATE to a question from ORG , according to which inter alia :

“ The note has been drafted by ORG ... mainly for use in deliberations on how to rank the cases in order of priority , on combinations of resources and on prosecution competence ...

On the basis of the note ... concrete investigative steps were taken , and that was the primary purpose of the note ... several of the individuals referred to in the note have been prosecuted and a number of them have been convicted .

The note contains a compilation of a series of particulars and suspicions ... concerning CARDINAL named individuals . The note was thus a good foundation , in an investigating context , for the police and the prosecutors to ensure better co - ordination of the investigation and the commencement of prosecution in cases regarding financial crime ... ”

ORG of LOC found for ORG . The applicant appealed against the judgment to ORG , before which the prosecutor in the applicant ’s trial as a witness stated that he was given a copy of the note as general material like all other prosecutors working for ORG , but since the note did not form part of any specific case , he did not use it in connection with his work on the applicant ’s case .

ORG found for the applicant on DATE , stating as follows :

“ According to section CARDINAL , subsection CARDINAL of ORG the defence is entitled to have access to material produced by the police . As stated by ORG in his notice No . CARDINAL of DATE , to come within the scope of this provision , the material needs to have some connection with the relevant trial . However , it does not have to be of real importance to the investigation or to the possible continuation of the prosecution .

From the Minister of ORG ’s answer of CARDINAL DATE to ORG it appears , among other things , that as a result of the “ Anti - Social Trade ” note and in accordance with the main aim of the note , specific measures and investigation were initiated .

ORG does not dispute that the applicant , the co - accused and some of the witnesses who were heard during the applicant ’s trial figure in the note , including the mutual relationship among some of them . The investigations were initiated shortly after the note was composed , and both the persons in charge of the investigations and the prosecutor were in possession of the note .

In these circumstances , ORG considers that the note has such a connection with the applicant ’s trial that the defence is entitled to have access to it cf . section CARDINAL , subsection CARDINAL of ORG . ”

A copy of the note was hereafter sent to the applicant ’s counsel on DATE . Subsequently , in support of his request for leave to appeal the applicant alleged that LAW had been violated , notably as the principle of equality of arms had not been complied with . In this respect he referred to the content of the note , with which both the police and the prosecution were familiar , but which was not available to counsel for the defence during the criminal trial .

On DATE ORG refused the applicant ’s request for leave to appeal to ORG for which reason the High Court judgment of DATE became final .