Violation of Art. 6-1;Pecuniary and non-pecuniary damage - award

András Baka;Antonella Mularoni;Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Elisabet Fura;Françoise Tulkens;Ireneu Cabral Barreto;Jean-Paul Costa;Karel Jungwiert;Khanlar Hajiyev;Mindia Ugrekhelidze;Nicolas Bratza;Peer Lorenzen;Renate Jaeger;Stanislav Pavlovschi

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

He formerly worked as a prosecutor in the ORG region .

The applicant submitted that in DATE and DATE he had been approached by GPE , a person previously unknown to him , through VS , a private acquaintance . GPE had asked him to secure the acquittal of a third person and had offered him a bribe of MONEY ( ORG ) in return . The applicant had initially refused but had later agreed after GPE had reiterated the offer a number of times .

The Government submitted that VS and GPE had approached the applicant and negotiated the bribe with him on their own private initiative , without having first informed the authorities . They alleged that GPE had suspected the applicant of having accepted bribes in the past .

On an unspecified date GPE , who was in fact an officer of a special anti - corruption police unit of ORG ( PERSON tyrimų tarnyba – “ the ORG ” ) , informed his employers that the applicant had agreed to accept a bribe .

On DATE the ORG applied to the Deputy Prosecutor General , requesting authorisation to use a criminal conduct simulation model ( “ the model ” – see paragraph CARDINAL below ) . The request stated :

“ Senior Commissioner [ ORG ] , Head of ORG of the [ ORG ] , having had access to information concerning [ the applicant ’s ] criminal conduct , has established that [ the applicant ] takes bribes since he has agreed to assist a defendant , [ GPE ] , in return for payment .

In implementing the criminal conduct simulation model , which is intended to establish , record and put an end to [ the applicant ’s ] unlawful acts , an ORG official [ GPE ] will hand over QUANTITY litai , or the equivalent in foreign currency if required .

Implementation of [ the model ] will require [ GPE ] to simulate criminal acts punishable under LAW and CARDINAL of the [ Criminal Code ] .

With reference to LAW ... , the undersigned requests the Deputy Prosecutor General to authorise the criminal conduct simulation model for a period of DATE .

This request is based on the information obtained during the preliminary inquiry . ”

On DATE the ORG sent a letter to the Deputy Prosecutor General outlining the model as follows :

“ [ ORG ] officials have collected operational information attesting that [ the applicant ] takes bribes .

In implementing the criminal conduct simulation model , which is intended to establish , record and put an end to [ the applicant ’s ] unlawful acts , an ORG official [ GPE ] will simulate the offences of offering a bribe and breaching currency and securities regulations .

In view of the above , and in accordance with LAW , I hereby request you to authorise the criminal conduct simulation model and thus to exempt [ GPE ] from criminal responsibility for the offences under LAW and CARDINAL of the [ Criminal Code ] which are intended to be simulated .

[ The model ] will be implemented by ORG officials on the basis of a separate operational action plan .

Implementation of [ the model ] will be financed by ORG resources . ”

On DATE the Deputy Prosecutor General gave the required authorisation by countersigning and placing his official seal on the letter in question . This document constituted the final version of the model .

On DATE the applicant accepted USD CARDINAL from GPE .

On DATE GPE gave the applicant a further USD CARDINAL,CARDINAL .

On DATE the Prosecutor General instituted a criminal investigation in respect of the applicant for accepting a bribe , an offence punishable under LAW in force at that time .

On DATE ORG dismissed the applicant from his post as a prosecutor on grounds relating to corruption . Referring to the relevant provisions of LAW , ORG stated that the applicant had been dismissed for a disciplinary offence and for activities discrediting the prosecuting authorities .

On an unspecified date the pre - trial investigation was concluded and the case was referred to ORG . During the trial the applicant pleaded guilty but alleged that he had succumbed to undue pressure from GPE in committing the offence .

On DATE the Deputy Prosecutor General authorised a judge of ORG to disclose the details of how the model had been implemented “ provided that this [ did ] not harm the interests ” of the individuals and authorities involved in the operation .

On DATE ORG convicted the applicant of accepting a bribe of USD MONEY from GPE , in breach of Article CARDINAL of LAW then in force , and sentenced him to DATE and CARDINAL days’ imprisonment . The court also ordered the confiscation of his property in the amount of CARDINAL NORP litai ( LTL ) . It found it established , firstly , that GPE had given the applicant the bribe during their meetings on DATE and DATE , in return for a promise that the applicant would intervene favourably in a criminal case against a third person and , secondly , that GPE had entered into contact and negotiated with the applicant through VS .

NORP The court ’s conclusions were mainly based on the evidence given by GPE and on secret recordings of his conversations with the applicant . The court had also examined ORG , a prosecutor working in the same regional office as the applicant , whose evidence had not gone beyond confirmation that the applicant had dealt with the criminal case against the third person ( GPE ) indicated by GPE . PERSON was not summoned to appear at the trial as his place of residence was unknown , but a statement by him , which had been recorded by the pre - trial investigators , was read out in court . However , ORG did not take it into account in determining the applicant ’s guilt . The court ’s judgment did not contain any discussion of the authorisation and implementation of the model .

On DATE ORG upheld the judgment on an appeal by the applicant , finding that there had been no incitement and that the authorities had not put any active pressure on the applicant to commit the offence .

On DATE the applicant lodged a cassation appeal . Relying in particular on ORG decision of CARDINAL DATE ( see paragraph CARDINAL below ) , he argued that there were no statutory provisions allowing the authorities to incite or provoke a person to commit an offence . In that connection , he submitted that on several occasions he had unsuccessfully requested the first - instance and appeal courts to consider the influence exerted by GPE and PERSON on his predisposition to commit the offence . He further complained that the lower courts had not taken into account the fact that GPE was a police officer and not a private individual . He argued that GPE had incited him to accept the bribe . Furthermore , he stated that the authorities had had no valid reason to initiate an undercover operation in his case and that they had overstepped the limits of their ordinary investigative powers by inducing him to commit an offence . He also submitted that VS had not been examined during the trial .

On DATE ORG dismissed the applicant ’s cassation appeal in a decision which included the following passages :

“ There is no evidence in the case file that [ the applicant ’s ] free will was denied or otherwise constrained in such a way that he could not avoid acting illegally . [ GPE ] neither ordered [ the applicant ] to intervene in favour of the person offering the bribe , nor did he threaten him . He asked him orally for help in securing the discontinuation of proceedings [ against the third person ] ... PERSON understood that the request was unlawful ... [ and ] ORG was therefore correct in finding him guilty ...

[ The applicant ] contests the lawfulness of [ the model ] ... , stating that the case discloses a manifest example of incitement ( kurstymas ) by the officers of the special services to accept the bribe ... [ He submits that , by law ] , authorisation to simulate a criminal act can not be given in the absence of evidence of the preparation or commission of an offence . Therefore , in his view , such a procedure can not pursue the aim of inciting a person or persons to commit a crime . If the model were used for that purpose , it would be unlawful [ and ] the information thereby obtained could not be admitted in evidence ... [ The ] model can not be authorised and implemented unless a person has planned or started to commit an offence , evidence of which should be submitted to a prosecutor ... It appears from the case file that [ the authorities ] were contacted by [ VS ] and [ GPE ] after [ their initial ] meetings with PERSON , during which he had agreed in principle that he would perform the requested actions for ORG CARDINAL,CARDINAL ... Accordingly , in authorising the use of the model , [ the authorities ] merely joined a criminal act which was already in progress .

The case file contains no evidence that [ VS ] is an employee of the special services ... [ GPE ] works at the ORG as a police driver ... but this does not mean that he is prohibited from acting in a private capacity . There is no evidence that [ VS ] and [ GPE ] negotiated with PERSON on police instructions . It has , however , been established that [ VS ] and [ GPE ] handed money to him on the police ’s orders .

The court considers that provocation ( provokacija ) to commit a crime is similar but not equivalent to incitement ( kurstymas ) ... Provocation is a form of incitement consisting in encouraging a person to commit an offence ... entailing his criminal responsibility so that he can then be prosecuted on that account . While such conduct is morally reprehensible , the term ‘ provocation’ is not used either in criminal or procedural law or in LAW of DATE ... From a legal standpoint , provocation does not constitute a factor exempting from criminal responsibility a person who has thereby been induced to commit an offence ...

Since the case file contains contradictory evidence as to the conduct of [ VS ] and [ GPE ] before the criminal conduct simulation model was authorised , it is difficult to establish who was the instigator ( iniciatorius ) of giving and accepting the bribe , or , in other words , who incited whom to give or accept the bribe . [ VS ] ... stated that , after he had contacted PERSON to ask him to intervene in securing the discontinuation of the criminal case [ against the third person ] , PERSON had been the first to say that he could settle the matter for CARDINAL . For his part , [ GPE ] ... stated that PERSON Ramanauskas had said that the discontinuation of the case would cost CARDINAL . In his testimony PERSON alleged that [ VS ] had asked him if ORG CARDINAL,CARDINAL would be enough to ensure that the case was discontinued . In these circumstances , it can not be said with any certainty who was the instigator of the bribery , nor can it be inferred that [ VS ] and [ GPE ] incited PERSON to accept the bribe . Furthermore , there is no reason to conclude that [ VS ] and [ GPE ] provoked the offence committed by ORG in accepting the bribe . It can only be said unequivocally that the initiative ( iniciatyva ) to apply to PERSON in order to have the case [ against the third person ] discontinued came from [ GPE ] .

However , the court considers that the answer to the question whether a person has actually induced ( palenkė ) or otherwise incited ( sukurstė ) another to offer or accept a bribe is of no consequence as far as the legal classification of [ the applicant ’s ] conduct is concerned . Incitement ( kurstymas ) to commit an offence is one of the various forms of complicity . Under the branch of criminal law dealing with complicity , incitement is a form of conspiracy . A person who commits an offence after having being incited to do so incurs the same criminal responsibility as a person who acts of his own volition ... Even assuming that PERSON was incited by [ VS ] and [ GPE ] to accept a bribe , it must be emphasised that the incitement took the form of an offer , and not of threats or blackmail . He was therefore able to decline ( and ought to have declined ) the illegal offer ... It follows from the testimony of PERSON that he understood the nature of the acts he was being asked to carry out , and accepted [ the bribe ] of his own free will ...

At the same time it must be noted that it is a specific feature of bribery as an offence that one side is necessarily the instigator ( kurstytojas ) . A ORG official soliciting a bribe is an instigator within the meaning of LAW [ of LAW then in force – ‘ the ORG ] in that he incites ( kursto ) another to pay him a bribe , in breach of that Article . [ A person ] offering a bribe to a ORG official is necessarily an instigator within the meaning of LAW since , by making the offer , he incites the official to accept a bribe , that is , to commit the offence provided for in that Article ... Both the person giving and the person accepting a bribe exercise their free will ... and may therefore choose between possible forms of conduct . A person who intentionally chooses the criminal option while having the possibility of resisting the incitement rightly incurs criminal responsibility , regardless of the outside factors that may have influenced his choice ... ”

On DATE the applicant began serving his prison sentence . He remained in prison until DATE , when he was released on licence .

Furthermore , the prohibition on his working in the legal service was lifted in DATE . In DATE his conviction was expunged .

The Criminal Code applicable at the material time punished the acts of accepting a bribe ( Article CARDINAL ) , offering a bribe ( Article CARDINAL ) and breaching currency and securities regulations ( Article CARDINAL ) .

Article CARDINAL of LAW in force at the time and LAW ( in force since DATE ) provide that incitement is CARDINAL of the possible forms of complicity in an offence and is punishable alongside other forms of assistance ( aiding and abetting , organising , executing ) in the commission of an offence . These provisions define an instigator ( kurstytojas ) as a person who induces ( palenkė ) another to commit an offence . The term kurstymas ( which can also be translated as “ incitement ” or “ instigation ” ) is normally used in domestic legal doctrine to define the notion of complicity .

LAW ( Operatyvinės veiklos įstatymas ) was enacted in DATE and remained in force until DATE . Section CARDINAL ) of the Act defined a “ criminal conduct simulation model ” ( Nusikalstamos veikos imitacijos elgesio modelis ) as a set of actions entailing the elements of an offence , authorised with a view to protecting the best interests of the ORG , society or the individual .

Section CARDINAL(CARDINAL ) of the LAW authorised the initiation of “ operational activities ” within the meaning of the LAW where :

( a ) the authorities did not know the identity of an individual who was preparing to commit or had committed a serious offence ;

( b ) the authorities had obtained “ verified preliminary information ” about a criminal act ;

( c ) the authorities had obtained “ verified preliminary information ” about a person ’s membership of a criminal organisation ;

( d ) the authorities suspected activities by foreign secret services ; or

( e ) an accused , defendant or convicted person had absconded .

Section CARDINAL(CARDINAL)(CARDINAL ) of the Act provided that the authorities could have recourse to a model only in CARDINAL of the above scenarios , and then only on condition that the requirements of sections CARDINAL of the Act were satisfied .

Sections CARDINAL and CARDINAL of the LAW empowered the Prosecutor General or his deputy to authorise the use of a criminal conduct simulation model on an application by the police or the investigative authorities . The application for authorisation had to include , among other things , a reference to the limits of the conduct intended to be simulated ( that is , the legal characterisation under a specific provision of LAW of the actions to be taken ) and the purpose of the operation , including its interim and ultimate aims .

Section CARDINAL(CARDINAL)(CARDINAL ) of the LAW required the authorities to protect persons from active pressure to commit an offence against their own will .

Section CARDINAL(CARDINAL ) of the Act afforded the right to contest the lawfulness of evidence obtained by means of special techniques .

In the proceedings which gave rise to the case of PERSON and PERSON v. GPE ( no . CARDINAL , struck out of the ORG ’s list of cases on DATE ) , ORG gave judgment on DATE , holding , inter alia :

“ LAW defines [ the criminal conduct simulation model ] as a set of actions entailing the elements of an offence , authorised with a view to protecting the best interests of the ORG , society or the individual . ... The model may be authorised only for operations by [ the police ] and does not apply to individuals who commit offences .

The request [ by the police for authorisation of the model in this case ] referred to the aim of the intended operation , namely identification of all persons involved in a [ human ] trafficking network .

Of course , the [ police ] officers could not foresee who would take part in this crime ... CARDINAL of the aims of [ the prosecution ] in authorising the model was to establish the identities of members of a criminal organisation . ”

In a judgment of CARDINAL DATE in the same case , ORG held as follows regarding the use of police undercover agents :

“ [ The applicants ] were not aware of the ongoing operation at the time they committed the offence . They were convinced that they were trafficking persons who had illegally crossed the NORP border . As Article CARDINAL of LAW provides that the offence in question is committed where direct intent has been established , [ the applicants’ ] error as to the nature of the act they were committing is of no relevance to the legal classification of their conduct . Since they were convinced that they were trafficking [ human beings ] , their acts fell objectively within the scope of the offence defined in LAW ... Their conduct was therefore rightly classified as a completed offence . The authorisation given to the authorities [ to use the model ] served the sole purpose of legitimising the actions of the police officers taking part in the trafficking . ”

On DATE ORG ruled that LAW was generally compatible with LAW . It held in particular that the model constituted a specific form of operational activity using intelligence and other secret measures in order to investigate organised and other serious crime . It emphasised that the use of clandestine measures , as such , was not contrary to LAW , or indeed the LAW , as long as such measures were based on legislation that was clear and foreseeable in effect and were proportionate to the legitimate aims pursued . ORG found that the LAW provided a clear definition of the scope and procedure for the use of various forms of operational activities , including the model .

Referring in particular to the Teixeira de Castro v. GPE case ( DATE , Reports of Judgments and Decisions CARDINAL-IV ) , the ORG emphasised that a criminal conduct simulation model could not be used for the purpose of incitement ( kurstoma ) or provocation ( provokuojama ) to commit an offence that had not already been initiated . It further held that this investigative technique did not allow officials to incite the commission of an offence by a person who had abandoned plans to commit the offence . It added that , by authorising and implementing the model , the investigative authorities and their undercover agents were restricted to “ joining criminal acts that [ had ] been initiated but not yet completed ” . ORG emphasised that it was for the courts of ordinary jurisdiction dealing with allegations of incitement or of other forms of abuse of the model to establish in each particular case whether the investigating authorities had gone beyond the limits of the legal framework within which the model had been authorised .

ORG also stated that authorisation of the model did not amount to a licence for a police officer or third person acting as an undercover agent to commit a crime but simply legitimised DATE from the point of view of domestic law – the acts which the agent might be required to carry out in simulating an offence . The main aim of operational activities , including the model , was to facilitate criminal investigations , and on that account they came within the sphere of competence of both the prosecuting authorities and the courts . Accordingly , the model did not require judicial authorisation but simply authorisation by a prosecutor . ORG further noted that secret audio and video recordings of conversations taking place in the context of operational activities under LAW were not subject to judicial authorisation and that this was compatible with LAW . Under LAW ) of the LAW , only wiretapping and surveillance techniques using stationary devices required a court order .

ORG LAW ( ETS no . CARDINAL , DATE ) provides in LAW that each party is to adopt such legislative and other measures as may be necessary , including those permitting the use of special investigative techniques , to enable it to facilitate the gathering of evidence in this sphere .

The explanatory report on the ORG further specifies that “ special investigative techniques ” may include the use of undercover agents , wiretapping , interception of telecommunications and access to computer systems .

Article CARDINAL states that the Convention does not affect the rights and undertakings deriving from international multilateral conventions concerning special matters .

ORG , Search , LAW ( ETS no . CARDINAL , CARDINAL DATE ) provides , in DATE , that each party should consider adopting such legislative and other measures as may be necessary to enable it to use special investigative techniques facilitating the identification and tracing of proceeds and the gathering of evidence related thereto .

The use of special investigative techniques , such as controlled deliveries in the context of illicit trafficking in narcotic drugs , is also provided for in LAW implementing LAW of DATE on the gradual abolition of checks at the common borders , signed in GPE on DATE .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in Velenje . He was represented before the ORG by the LOC lawyers who are practising in PERSON . ORG ( “ the Government ” ) were represented by their Agent , PERSON , ORG Attorney - General .

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

On DATE the applicant was injured in an accident at work in a lignite mine . His employer had taken out insurance with the insurance company ZT .

On DATE the applicant instituted civil proceedings against ZT in ORG ( Okrožno sodišče v PERSON ) seeking damages in the amount of CARDINAL tolars ( MONEY ) for the injuries sustained .

On DATE the applicant requested that a date be set for a hearing .

On DATE and CARDINAL DATE and on DATE the applicant lodged preliminary written submissions and increased his claim .

On DATE the court held a hearing which was adjourned for additional evidence - taking .

On DATE the court held a hearing and decided to appoint a medical expert .

On DATE the applicant lodged preliminary written submissions . DATE , the court appointed a medical expert who delivered an opinion on DATE . The court sought an additional opinion from the appointed expert . He delivered the additional opinion on DATE .

On DATE , CARDINAL and DATE and CARDINAL DATE the applicant lodged preliminary written submissions and increased his claim .

On DATE the court held a hearing which was adjourned because the applicant submitted preliminary observations increasing his claim .

On DATE and CARDINAL DATE the applicant lodged preliminary written submissions .

On DATE the court held a hearing , which was adjourned because it did not have enough time to serve the applicant ’s submissions of CARDINAL DATE on the respondent .

On DATE the court held a hearing and decided to deliver a written judgment . The judgment , upholding the applicant ’s claim in part , was served on the applicant on DATE .

On DATE the applicant appealed to ORG ( PERSON v PERSON ) . ZT cross - appealed .

On DATE the court allowed the ORG ’s appeal and decreased the damages awarded . The court also upheld both appeals in the part concerning the costs and expenses of the proceedings and remitted the case to the first instance court for re - examination .

On DATE the applicant lodged an appeal on points of law with ORG sodišče ) .

On DATE the court allowed the appeal in part and increased the amount of damages awarded .

On DATE the applicant lodged with the first - instance court preliminary written submission concerning costs and expenses . On DATE and CARDINAL DATE he requested the court to render a decision .

On DATE the ORG delivered a decision concerning the costs and expenses of the proceedings . ZT appealed .

On DATE ORG allowed the appeal in part and lowered the amount of costs awarded .

On DATE the applicant requested the court to correct its decision . On DATE he sought from ORG a request for protection of legality against ORG decision .

On DATE the court corrected its decision and served it on the applicant on CARDINAL DATE .

On DATE ORG decided not to lodge a request for protection of legality .


Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicants were born in DATE , DATE and DATE respectively and live in GPE .

The applicants are the owners of a flat in GPE , which they had let to ORG

In a writ served on the tenant on DATE , the applicants communicated their intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate .

By a decision of DATE , which was made enforceable on DATE , the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises must be vacated by CARDINAL DATE .

On DATE , the applicants served notice on the tenant requiring her to vacate the premises .

On DATE , they served notice on the tenant informing her that the order for possession would be enforced by a bailiff on DATE .

Between DATE and DATE , the bailiff made CARDINAL attempts to recover possession .

Each attempt proved unsuccessful as , under the statutory provisions providing for the suspension or the staggering of evictions , the applicants were not entitled to police assistance in enforcing the order for possession .

On DATE , the applicants recovered possession of their flat .

The relevant domestic law is described in the ORG ’s judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , § § DATE , ORG CARDINAL-V.


The applicant is a NORP citizen , born in DATE and resident in PERSON , GPE . He is represented before the Court by PERSON , a lawyer practising in GPE .

A.

On DATE , the applicant ’s wife , PERSON , was hit by a speeding car as she was crossing a road in GPE , GPE and died . An autopsy was carried out on her body at a hospital immediately after the accident . The police did not carry out any blood tests on the driver to ensure that he was not under the influence of alcohol or any other illegal substance .

Criminal proceedings were instituted against the driver before the CARDINAL - member ORG ( trimeles plimmeliodikio ) of GPE . The applicant did not join the proceedings as civil party . On DATE the court found the defendant guilty of reckless or negligent manslaughter and sentenced him to a term of DATE imprisonment or to the paying of a fine of MONEY for DATE of the sentence . The defendant duly served the sentence .

On DATE , the applicant together with his CARDINAL sons and the victim ’s brother instituted civil proceedings against the driver for compensation before the Single - member ORG ( monomeles protodikio ) of GPE . The driver ’s insurance company represented the driver in court . On DATE the court decided that the death of PERSON was entirely due to her own fault since she was not careful enough when crossing the road . The court did not award any compensation .

The applicant together with his CARDINAL sons and the victim ’s brother appealed on DATE . On DATE ORG ( efetio ) of GPE overturned the decision of the first instance court . ORG decided that the victim was PERCENT responsible for her death and that the driver was PERCENT responsible . Compensation was awarded accordingly . The applicant received MONEY , the CARDINAL sons received CARDINAL drachmas each and the victim ’s brother received MONEY .

B. Relevant domestic law

Section CARDINAL of the PERSON introducing LAW lays down that :

“ The state shall be under a duty to make good any damage caused by the unlawful acts or omissions of its organs in the exercise of public authority , except where the unlawful act or omission is in breach of an existing provision but is intended to serve the public interest . The person responsible shall be jointly and severally liable , without prejudice to the special provisions on ministerial responsibility . ”


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-2 - Presumption of innocence);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Possessions);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

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

The applicants are relatives of the late Mr PERSON . The first CARDINAL applicants are his father and mother , born in DATE and DATE respectively , and the third and fourth applicants are his children , born in DATE and DATE respectively . They lived in GPE in LOC .

On an unspecified date a criminal investigation was opened into several counts of murder , robbery and destruction of property committed by a criminal syndicate . It appears that Mr Vitaliy Vulakh was suspected of being the leader of the syndicate .

On DATE Mr S. , Mr N. and PERSON were arrested on suspicion of membership of the gang . On learning of their arrest , Mr PERSON shot dead his fiancée and committed suicide .

On DATE the criminal prosecution of PERSON was discontinued as a result of his death .

On DATE the ORG convicted PERSON , Mr ORG and PERSON of serious criminal offences and sentenced them to lengthy terms of imprisonment . The judgment mentioned that PERSON had been the leader of a criminal enterprise and had told the defendants to murder his business competitor PERSON It read , in particular , as follows :

“ The person who had been the leader of the gang ( V[italiy ] Vulakh ) in respect of whom the case was discontinued because of his death , had money at his disposal , he funded the gang and paid each gang member to commit crimes : he bought cars , paid for their maintenance , petrol and travel expenses ... ”

In these proceedings the victims PERSON , PERSON and PERSON brought civil claims against the CARDINAL defendants , seeking compensation for pecuniary and non - pecuniary damage . ORG indicated that these claims should be examined in separate civil proceedings .

On DATE the first applicant lodged an appeal to ORG of GPE . He submitted that the decision on the discontinuation of criminal proceedings against his son had never been notified to him or to his son ’s counsel , and that counsel had not been allowed to study the file or plead his son ’s innocence .

On DATE a judge of ORG informed the first applicant that he had no right to lodge an appeal to ORG because he was not a party to the criminal case . The judge wrote to him that further appeals would also be rejected .

It appears that on DATE ORG of GPE examined appeals by those convicted and upheld the judgment of DATE . A copy of this judgment was not made available to the ORG .

On DATE a notary public issued the CARDINAL applicants with a certificate of succession on intestacy , according to which they inherited Mr PERSON house .

On an unspecified date PERSON , PERSON , PERSON and a private company sued the CARDINAL applicants and the Kurganinskiy dairy factory , of which ORG had been a minority shareholder , for pecuniary and non - pecuniary damages .

On DATE ORG of GPE found against the applicants and the dairy factory , finding as follows :

“ According to LAW , the victim shall be compensated for the pecuniary damage caused by the crime , as well as for the costs incurred during the pre - trial investigation and trial ...

According to Article CARDINAL of LAW of GPE , damage inflicted on the person or property of an individual ... shall be reimbursed in full by the person who inflicted the damage .

According to the judgment of ORG of DATE and the judgment of ORG of DATE , Mr V[italiy ] ORG had organised an armed group ( gang ) composed of PERSON , Mr DATE and PERSON who had committed , under his leadership , serious crimes : the murder of the head of ORG Mr V. and repeated attempts to murder the director general of [ a ] private company , PERSON

According to ORG no . CARDINAL of ORG of the GPE of [ unreadable ] DATE , entitled ‘ On the case - law on application of provisions for compensation for pecuniary damage caused by crime’ , those who cause damage through their criminal activities shall be jointly liable for that damage . Thus , Mr V[italiy ] Vulakh , PERSON , PERSON , and Mr DATE are jointly liable for the damage caused by their crimes .

According to LAW , in cases of joint liability the creditor may claim satisfaction of debt , in full or in part , either from all the debtors or from each debtor individually .

Mr V[italiy ] ORG should have borne liability for the pecuniary and non - pecuniary damage caused by the crimes , but he committed suicide during the pre - trial investigation .

The defendants PERSON , PERSON , PERSON and PERSON are heirs to Mr V[italiy ] ORG after his death . According to LAW , heirs who have accepted an inheritance shall be jointly liable for the testator ’s debts . Each heir is liable in proportion with the share of the inheritance he received .

Article CARDINAL of the Civil Code provides that the heir accepting a part of an inheritance is presumed to have accepted the entire inheritance , whatever its form or location ... On DATE [ the CARDINAL applicants ] were issued with an inheritance certificate ... in respect of the house .

According to LAW , the estate of a co - owner of a private company includes that co - owner ’s part in the charter capital of the company . According to the audit report of DATE , the real value of Mr V[italiy ] ORG ’s part corresponds to PERCENT of the value of the net assets of the Kurganinskiy dairy factory , which amounts to MONEY ( RUB ) .

For that reason , the defendants who have accepted a part of ORG ’s estate in inheritance must be considered to have accepted his part in the charter capital of the Kurganinskiy dairy factory .

It follows that compensation in respect of pecuniary and non - pecuniary damage must be recovered from the Kurganinskiy dairy factory whose charter capital comprises a part of the estate inherited by [ the applicants ] ... ”

ORG awarded PERCENT of ORG share in the dairy factory to PERSON company , PERCENT to PERSON , and PERCENT to PERSON , and ordered immediate enforcement of the judgment .

On DATE the applicants lodged a statement of appeal . They submitted that that Mr Vitaliy Vulakh had not been found guilty by a court of law and should be presumed innocent . In the absence of a guilty verdict on PERSON there were no grounds to impose joint liability on his heirs . A civil claim should have been brought against him , and the court should have examined the matter of procedural succession . Furthermore , the dairy factory could not be held liable for the debts of its owners .

On DATE ORG examined the appeal and upheld the judgment , endorsing ORG approach and rejecting the applicants’ arguments in the following terms :

“ Although the prosecution of ORG was discontinued in connection with his death , on DATE Mr S. , Mr N. and PERSON were convicted and the conviction entered into legal effect . According to the judgment , Mr V[italiy ] ORG had been the leader of an armed group ( gang ) which had committed , under his leadership , serious crimes : the murder of the head of ORG , PERSON , and repeated attempts to murder the director general PERSON This means that the conviction established that Mr V[italiy ] ORG ’s had been responsible for causing pecuniary and non - pecuniary damage to the plaintiffs . ”

Criminal proceedings must be discontinued against a deceased person except where a continuation of the proceedings is necessary for his or her rehabilitation or for the reopening of the case in respect of others on account of newly discovered circumstances ( Article CARDINAL § CARDINAL) .

The Civil Code provides as follows :

“ CARDINAL . A private company is a company founded by CARDINAL or more persons ; its charter capital is divided into parts described in its articles of association . Participants of a private company are not liable for its debts ... ”

“ CARDINAL . Shares in the charter capital of a private company are transferred to the heirs of the company ’s participants ... unless the articles of association provide that such a transfer requires the consent of the other participants ... ”

“ CARDINAL . Damage inflicted on the person or property of an individual ... shall be reimbursed in full by the person who inflicted the damage ...

NORP The person who inflicted the damage shall be liable for it unless he proves that the damage was inflicted through no fault of his ... ”

The factual circumstances established by the final judicial decision in an earlier case , are binding on the court ( LAW ) . The final judicial decision in a criminal case concerning a particular person is binding on the court examining the civil - law consequences of that person ’s actions only to the extent that the criminal court determined whether or not such actions had been committed and whether or not they had been committed by that person ( LAW ) .

On DATE the ORG of ORG quashed the criminal judgment against CARDINAL co - defendants in so far as it concerned the alleged participation of CARDINAL other persons in the crimes . The ORG held ( decision reported in ORG , no . DATE ) :

“ In breach of LAW , the [ trial ] court erroneously declared PERSON and PERSON to have been accomplices to the crime . It follows from the case materials that , by the investigator ’s decision of DATE , the case against them had been severed into separate proceedings in connection with PERSON grave illness and the failure to locate PERSON reference to them in the text of the judgment , describing them as persons who had been complicit in the criminal offences committed by the convicts , is not justified because ... the merits of the criminal case against them have not been examined by a court of law . ”


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria

NORP The applicant , PERSON , is a NORP national who was born in DATE and , as far as the ORG is aware , now lives in GPE . He was represented by Mr C.A. Madern , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agents , Mr R.A.A. PERSON and Ms J. Schukking , and their Deputy Agent , Ms L. GPE , of ORG .

ORG , informed by the Registrar of their right under LAW to take part in the proceedings , did not elect to do so .

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

NORP The applicant first came to GPE in DATE . He had been issued a visa , valid for DATE , enabling him to visit relatives . It is not clear how long he stayed in the GPE .

NORP In DATE the applicant married PERSON , a NORP national , in GPE . The couple subsequently returned to the GPE , apparently without a visa , where they resided illegally . A son , PERSON , was born to them on DATE . They lived together as a family for DATE before the spouses separated in DATE . The applicant had access to his son and would meet with him at his brother ’s house . Divorce proceedings in GPE were started in DATE , resulting in the divorce being pronounced on DATE . PERSON was given parental authority over PERSON , with the applicant being granted access to his son every first Sunday of the month and every first day of national and religious holidays .

Meanwhile , in DATE , the applicant had returned to GPE to do his military service . DATE , PERSON visited GPE during holidays , staying for a while with the applicant ’s parents as well as with the applicant himself . In DATE the applicant returned to the GPE on a short - stay visa to visit relatives , but he overstayed . He saw his son a few times at his brother ’s house . The applicant states that PERSON thwarted the access arrangement as much as possible .

Ms Ö. was granted a residence permit on an unknown date .

On DATE the juvenile judge ( kinderrechter ) of ORG ( arrondissementsrechtbank ) issued a supervision order ( ondertoezichtstelling ) , valid for DATE , in respect of the applicant ’s son PERSON and the latter ’s half - sister ( a child born of a previous relationship of the applicant ’s ex - wife ) . This decision resulted from an investigation carried out by ORG ( PERSON ) , which had found that PERSON and his CARDINAL - sister were being ill - treated , that their mother had limited pedagogical abilities and that she would often leave the children on their own . ORG Bureau Jeugdzorg ) was appointed as the family - supervision institution ( gezinsvoogdij - instelling ) .

On DATE the applicant applied for a residence permit on the basis of a temporary regulation on the legalisation of illegal aliens who had been residing in the GPE for a long period of time ( PERSON regeling witte illegalen ) . He indicated that he had regular contacts with his son , which it would be practically impossible to maintain from GPE , and that there thus existed compelling reasons of a humanitarian nature militating in favour of the grant of a residence permit . As the legalisation regulation only applied to requests which had been lodged DATE and DATE , the Deputy Minister of Justice ( ORG ) rejected the applicant ’s request on DATE . The Deputy Minister further considered that there were no indications that the applicant ought to be allowed to reside in the GPE for reasons of a humanitarian nature .

In a report of DATE compiled by ORG and enclosed with their request to the juvenile judge for an extension of the supervision order , the applicant is mentioned as being PERSON ’s biological father who is residing illegally in the GPE at an unknown address . On DATE the supervision order was extended for DATE . In addition , on DATE the juvenile judge ordered PERSON and his CARDINAL - sister urgently to be taken into care ( spoeduithuisplaatsing ) as it had been found that they were suffering serious neglect and abuse at home . They were accommodated in a foster home . This measure was confirmed on DATE and prolonged until DATE .

Meanwhile , in his objection ( bezwaar ) of DATE against the decision refusing him a residence permit , supplemented by an additional document dated DATE , the applicant argued , inter alia , that his ex - wife was unable to look after their son by herself so that it was in PERSON ’s interests that the applicant also assist in his upbringing DATE and , therefore , that the applicant reside in the GPE .

NORP On DATE the Deputy Minister dismissed the objection , finding that LAW did not impose a positive obligation on the GPE to grant the applicant a residence permit . In this context the Deputy Minister considered that the applicant had not substantiated his claim that his ex - wife was unable to bring up their son by herself . Moreover , it had not appeared that any impediment existed to the exercise of family life abroad .

The applicant appealed this decision to ORG of The Hague , sitting in GPE , and also applied to that court for an injunction in order to stay his expulsion .

In a report evaluating the course of the supervision order , drawn up by ORG and submitted with a request by that ORG of DATE for an extension of the order , it is stated that the applicant had expressed the wish to see his son more often . Neither PERSON nor PERSON was very taken with that idea . An access arrangement had nevertheless been agreed , but this did not appear to work in practice .

NORP In additional grounds of CARDINAL DATE for his appeal to ORG of The Hague , sitting in GPE , in the aliens - law proceedings , the applicant argued that an investigation was being carried out into the question whether it would be better for PERSON if his father were made responsible for his care and upbringing . The applicant claimed that he was willing and able to do so , and that he had even applied for an amendment of the parental authority situation . The applicant further submitted that his son would have no possibility of maintaining the relationship with his father if the latter was not in the GPE . In that case , PERSON would have to stay with his mother or , as had been suggested by the family supervisor ( gezinsvoogd ) , be placed away from his mother and be accommodated in a foster family .

At a hearing on DATE before the juvenile judge concerning the request for an extension of the supervision order relating to PERSON , the applicant stated that at the previous hearing the judge had said that it should be investigated whether or not it would be better for PERSON to live with his father , but no such investigation had taken place . An investigation into the feasibility of an access arrangement , also ordered , had not taken place either . The applicant announced that a change in the parental authority situation would be sought if the family supervisor failed to carry out the investigation into the possibility of PERSON living with him . At the hearing the family supervisor admitted that he had not yet done much about the request for an access arrangement as he had been concentrating on the situation of PERSON ’s CARDINAL - sister .

In a decision of DATE the juvenile judge extended the supervision order and also ordered the starting - up of an access arrangement and an investigation into the possibility of PERSON living with his father .

The applicant subsequently informed ORG , where his appeal was pending in the proceedings relating to his request for a residence permit , that the juvenile judge had instructed ORG to investigate whether he should be invested with parental authority over his son and whether his son should live with him .

The hearing in these appeal proceedings took place before ORG on DATE . The applicant submitted inter alia that an investigation , ordered by the GPE juvenile judge , was currently pending into the question whether PERSON should be brought up by his father and whether parental authority over PERSON ought to be awarded to him . Furthermore , it was plain to see that there were obstacles to the applicant developing family life with his son in GPE : there was a supervision order in place , issued by a GPE court , and parental authority still remained with PERSON ’s mother – the applicant was thus not free to take his son with him .

Since ORG had still not carried out the investigation ordered by the juvenile judge , the applicant submitted a petition to ORG on DATE in which he requested to be granted sole parental authority over PERSON and to be entrusted with PERSON ’s upbringing . The applicant argued that PERSON had indicated that he wanted to see his father more often and even wanted to live with him , but that his mother did not agree to this .

On DATE ORG rejected the appeal as well as the request for an injunction in the proceedings relating to the applicant ’s request for a residence permit . It considered that the Deputy Secretary had been correct in attaching greater weight to the interests of the community as a whole than to those of the individual . In this context ORG took into account that the applicant had only submitted a decision of the juvenile judge extending the supervision order , but no documents showing that he had lodged a request for parental authority . The applicant had furthermore not submitted proof of the existence of an access arrangement ; it was unclear where the child was staying ; and the applicant had not demonstrated that there were any objective impediments to family life between himself and his son being pursued in a different manner . ORG noted that the applicant could keep in contact with his son by telephone or letters . No further appeal lay against this decision .

ORG subsequently decided that , for the time being at least , it would not be in PERSON ’s best interests for him to go and live with his father . Although PERSON ’s situation with his mother was not ideal , it was not so alarming that he urgently required to be placed away from her . In addition , a placement with his father DATE to which neither PERSON nor his mother consented –would confront PERSON with a serious conflict of loyalties . For those reasons , ORG did not consider it opportune to examine the applicant ’s situation . ORG informed the applicant of its position on DATE . It had further agreed with PERSON that he would see his father every first Sunday of the month .

On DATE ORG refused the applicant ’s request to be awarded sole parental authority . The court agreed with ORG that at the present time it was not in PERSON ’s best interests for the applicant to be invested with parental authority . The applicant lodged an appeal against this decision , submitting that the supervision order had been in place for DATE without PERSON ’s situation having undergone any real improvement .

NORP The applicant left the GPE in DATE and , as far as the ORG is aware , has resided in GPE ever since .

Following a hearing on DATE , ORG ( gerechtshof ) ordered ORG to investigate , before DATE , the applicant ’s background and the possibility of parental authority being granted to him .

In a decision of DATE , ORG rejected the appeal . It had regard to the report issued by ORG on DATE , from which it appeared that the applicant had not been involved in the ORG ’s investigation as he was residing in GPE and was unable to come to the GPE due to the fact that his visa applications kept being refused . ORG had , however , contacted a brother of the applicant ’s and the former ’s spouse , according to whom PERSON had had irregular contacts with his father in DATE . ORG noted that , if parental authority was awarded to the applicant , this would mean that PERSON , who had been born and bred in the GPE , who did not speak NORP and who did not want to go to GPE , would have to move to GPE at DATE . ORG considered that this would not be in PERSON ’s best interests , even though it was true that the situation in which he was being raised had not been ideal in DATE . ORG agreed with the ORG ’s assessment , adding that it had not been made clear in what way the applicant would wish to exercise his parental authority . While it understood the applicant ’s concerns , the court also took into account that PERSON ’s health and performance at school had in the meantime improved and that the supervision order was also expected to have a positive effect .

The applicant did not lodge an appeal on points of law with ORG ( PERSON ) against this decision .

Domestic law and practice relevant to the present case are set out in PERSON v. the GPE ( dec . ) , no . CARDINAL/CARDINAL , DATE .


CASE OF HANDOLSDALEN SAMI VILLAGE AND OTHERS v. SWEDEN

No violation of Art. 6-1;Violation of Art. 6-1;Pecuniary damage - award;Non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall

The applicant LOC are all situated in the municipality of PERSON in the county of PERSON .

The PERSON have , since ancient times , inhabited the northern parts of LOC and LOC . Originally living by hunting , fishing and collecting , the PERSON activities changed over time to concern mainly reindeer herding . Their historical use of the land has given rise to a special right to real estate , the reindeer herding right ( renskötselrätten ) . Presently regulated in GPE by LAW ( Rennäringslagen , CARDINAL ) , it comprises the right to use land and water for the PERSON 's own sustenance and that of his reindeer . The right may only be exercised by the members of a LOC village . Such villages are both geographical grazing areas and economic entities . They do not have any public legal status ( see GPE and CARDINAL Other GPE v. GPE , no . CARDINAL/CARDINAL , Commission decision of DATE , Decisions and Reports CARDINAL , p. CARDINAL in fine ) . The reindeer herding area comprises CARDINAL of the surface of GPE and is divided into DATE land and DATE grazing land . In certain parts of the country , the borders of the herding area are controversial and have not been statutorily defined , especially as concerns the DATE grazing land .

On DATE a large number of private owners of land in the municipality of Härjedalen instituted proceedings against CARDINAL LOC villages , the CARDINAL applicants and the Idre Nya Sami village , before ORG ( tingsrätten ) of PERSON . On DATE more landowners initiated a similar action against the Sami villages . The landowners sought a declaratory judgment ( negativ fastställelsetalan ) that the Sami villages had no right to reindeer grazing on their land without a valid contract to that effect concluded between the landowner and the village .

On DATE ORG issued a summons and decided that the CARDINAL cases were to be examined jointly . At a preparatory meeting on DATE , the court rejected the villages ' request for dismissal of the cases on procedural grounds .

On DATE the NORP villages submitted their response , contesting the landowners ' action . The villages claimed that they had the right to DATE grazing within their respective areas based on ( CARDINAL ) prescription from time immemorial ( urminnes hävd ) , ( CARDINAL ) the provisions of the reindeer grazing and reindeer husbandry acts of DATE , DATE , DATE and DATE , ( CARDINAL ) custom , or ( CARDINAL ) public international law , more specifically LAW of ORG , as compared with LAW , LAW , of ORG ( Regeringsformen ) .

Following CARDINAL extensions of the time - limit fixed by ORG , the landowners replied to the PERSON villages ' submissions on DATE . An additional preparatory meeting was held on DATE , at which the parties discussed , inter alia , the possibility of reaching a settlement . Furthermore , the villages were ordered to elaborate on their claim based on custom and to specify their means of evidence . They did so on DATE following CARDINAL extensions of the time - limit set . At the same time , they requested that the court inspect some of the properties concerned .

On DATE , having been granted several extensions , the landowners submitted a specification of the means of evidence offered . During DATE , the parties exchanged views on questions of evidence and submitted specifications of supplementary evidence . On DATE ORG sent a summary of the respective positions to the parties for comments . A further preparatory meeting took place on DATE .

During DATE and DATE , further comments were exchanged . On CARDINAL and DATE a preparatory meeting was held in order to plan the schedule for the main hearing . DATE and DATE , further views were exchanged , among other things on the LOC villages ' request for an inspection .

By a decision of CARDINAL DATE , ORG rejected the request for an inspection on the ground that the villages had not shown that an inspection of certain properties was necessary for an examination of whether they had a right to DATE grazing on the land in question .

The parties were summoned for the main hearing at DATE . On DATE some more landowners initiated a similar action against the Sami villages . This case was joined to the other CARDINAL .

The main hearing started on DATE and ended on DATE . It lasted for DATE . ORG heard a large number of experts and witnesses and had regard to substantial documentary evidence . During the hearing , as well as on CARDINAL previous occasions , the court struck out the case in regard to some of the landowners following withdrawal of the action on their part . The CARDINAL joined cases eventually comprised property belonging to CARDINAL landowners .

Having examined the developments of the LOC culture and reindeer herding since prehistoric times , ORG issued a CARDINAL judgment on DATE . It found that , from DATE to DATE , there had not been any DATE grazing which had established a right for the PERSON to such grazing on the relevant properties and that , from DATE , the actual DATE grazing , as DATE recorded by the socalled ORG bailiffs ( lappfogdar ) , had not lasted long enough in the respective parishes to create a right to grazing on those properties based on prescription from time immemorial , such prescription requiring DATE use of the land . For these reasons , the LOC villages could not claim a right to use the properties under the various laws , including the Reindeer Husbandry Act presently in force . Moreover , the court found that a right to real property could not legally be established through “ custom ” and that a right to DATE grazing on the properties in question could not be based on the provisions of LAW and ORG . The court therefore concluded that there was no right of the LOC villages to reindeer grazing on the plaintiffs ' land without a valid contract and accordingly gave judgment in favour of the landowners . The court ordered the LOC villages jointly to pay the plaintiffs ' legal costs , amounting to MONEY ( SEK ; CARDINAL ( ORG ) ) .

On DATE the Sami villages appealed to ORG ( hovrätten ) of PERSON . They demanded that ORG judgment be quashed , that the landowners ' action be rejected and that the decision on litigation costs not be enforced . They completed their appeal on DATE .

On DATE the landowners responded and requested that the NORP villages not be allowed to invoke circumstances in their defence that had not been presented to ORG . In a submission of DATE , the villages , on their part , made an additional demand that ORG judgment be set aside and the case remitted to that court on the ground that a procedural error had occurred . During DATE , the parties exchanged views on these and other matters . The landowners submitted their comments on the villages ' additional demand on DATE .

By a decision of DATE , ORG ruled on CARDINAL different procedural issues . Among other things , it rejected the LOC villages ' request that the appealed judgment be set aside and the case remitted . It also rejected the landowners ' request that the villages not be allowed to invoke certain circumstances in their defence , with CARDINAL exception . Thus , the court did not allow the villages to argue that DATE grazing without protests from landowners for a period of DATE would qualify for a continued right to such grazing based on prescription from time immemorial or the provisions of the reindeer grazing and reindeer husbandry acts . Furthermore , ORG rejected the LOC villages ' requests for an inspection of the locus in quo and for an order against the landowners to produce maps of the areas concerned . In its reasons for the various rulings , the court referred , inter alia , to the provisions of LAW ( PERSON ) concerning the conditions for invoking new circumstances and evidence not previously examined by ORG .

On DATE the parties were ordered to complete their respective actions by DATE .

On DATE the Sami villages claimed that there was a procedural hindrance ( rättegångshinder ) as they lacked the capacity to act as parties in relation to the issue concerned by the proceedings in question . By a decision of DATE , ORG rejected this claim , stating that , under the provisions of LAW , they had the necessary legal capacity . On DATE the villages appealed against that decision to ORG ( ORG domstolen ) . At their request , ORG granted the villages an extension of the time - limit set for the completion of their appeal until ORG had rendered its decision on the procedural issue . By a decision of DATE , ORG refused the villages leave to appeal .

In a submission of CARDINAL March CARDINAL , the NORP villages demanded that the ORG , through the Chancellor of ORG ( NORP ) , intervene on their side in the proceedings . At DATE , the Chancellor informed ORG that he did not intend to apply to participate in the proceedings .

In DATE and DATE the NORP villages were ordered to complete their appeal , which they did on DATE , after having been granted extensions of the time - limits set . Shortly thereafter , the landowners were ordered to submit the means of evidence they invoked , which they did on DATE , also following time - limit extensions .

In DATE the landowners applied for the Sami villages ' appeal to be dismissed and in DATE the villages reiterated their demand that ORG judgment be quashed and the case remitted . By a decision of DATE , ORG rejected these requests .

On DATE the NORP villages requested that the court obtain an opinion from an expert ( sakkunnig ) . Following the landowners ' objection and the villages ' further comments , the court rejected this request on DATE .

In DATE the court ordered the parties to make submissions on the question of which landowners were to be considered opposite parties in the appellate proceedings . The Sami villages submitted several comments DATE and the landowners made their submissions in DATE , after extensions of the time - limits set .

On DATE , having interpreted one of the landowners ' submissions as a motion for dismissal of the Sami villages ' appeal , ORG rejected that motion . On DATE the villages adduced some written evidence not previously presented . The landowners objected to that evidence but , by a decision of CARDINAL DATE , the court allowed the villages to present it .

The main hearing in ORG was held DATE and lasted DATE . The appellate court heard the same evidence as ORG and , as already mentioned , some additional written evidence introduced by the PERSON villages .

Following some landowners ' withdrawal of their action and ORG village 's withdrawal of its appeal , ORG , by decisions of DATE and DATE , struck out the case and set aside ORG judgment – including the Idre Nya Sami village 's liability for litigation costs – in so far as it concerned these same parties .

By a judgment of DATE , ORG upheld ORG judgment and ordered the applicants to pay the plaintiffs ' legal costs in the appellate proceedings , amounting to MONEY CARDINAL ( about EUR CARDINAL,CARDINAL ) .

ORG initially referred to the conclusion by ORG in the so - called “ LOC ” ( PERSON , NJA DATE , p. CARDINAL ) that the rights pertaining to reindeer herding were exhaustively regulated by LAW . Consequently , the right of DATE grazing was dependent on the conditions for prescription from time immemorial being met , those conditions having been regulated in the old LAW ( ORG ) of DATE .

As regards prescription from time immemorial and the burden and standard of proof in this respect , ORG stated the following :

“ Under LAW , LAW CARDINAL of the old LAW , the following applied to proof of prescription from time immemorial . ' If someone pleads prescription from time immemorial and fault is found with this claim , let him then show by means of old letters and writings deemed sufficient in law , or by means of credible men who have good local knowledge and can bear witness , on oath , that they neither know themselves nor have heard from others that the situation has ever been different . If he is unable to do this , the prescriptive right shall then be without force and effect . ' According to the preparatory works for the DATE LAW and the [ DATE ] LAW , in cases subject to dispute , the question of whether a right to winter grazing applies in a certain area is to be examined by a court on the basis of the evidence that is required under general law for proof of prescription from time immemorial ( see Government PERSON , p. CARDINAL , and Government PERSON , p. CARDINAL ) . The burden of proof that DATE grazing has taken place on the property owner 's land to such an extent that the LOC villages have a right to continued DATE grazing may therefore be deemed to rest with the PERSON villages .

In this case , the LOC villages claim that a right to DATE grazing based on prescription from time immemorial has come into being as PERSON have been in LOC since prehistoric times , as reindeer were early on associated with the PERSON culture , as reindeer management took on a completely nomadic form in DATE or , at all events , during DATE , and it can be assumed that even then , in DATE , depending on the weather conditions and access to food , the reindeer belonging to the PERSON wandered in search of food , and as the custom that developed at that time has endured until modern times . However , in the opinion of ORG , for a right to DATE grazing on the disputed lands to be deemed to have arisen on the basis of prescription from time immemorial , it must be required in addition that the results of the investigation indicate with sufficient strength that PERSON have used the lands in question or parts of them for DATE grazing for their reindeer with at least some regularity without hindrance , that is , without objection from other holders of rights . ”

The court further held that account had to be taken of the special features of reindeer husbandry . The herding required much space and necessitated movement between various grazing areas . The right to DATE grazing based on prescription could not require that reindeer grazed in a particular area DATE . However , a basic condition for that right was that the area had been used in such a way that every instance of grazing could be seen as part of a recurring pattern , although absence from the area in question could be more or less prolonged .

ORG examined extensive evidence dating back DATE and drew the following conclusions . As regards the period before the entry into force of LAW ( most notably , DATE ) , it had not been shown that free DATE grazing DATE that is , in the absence of contracts or the authorities ' permission – had taken place in LOC . On the contrary , the individual landowners had protested against reindeer grazing on their land . At the time of the enactment of the DATE and DATE Acts , the disputes between the domiciled population and the nomadic GPE about the use of the land at issue had been particularly sensitive in PERSON , and the investigation did not show that any DATE grazing had occurred outside the boundaries of the “ reindeer grazing mountains ” . According to the evidence presented with respect to the situation in DATE , grazing outside these mountains had existed during wintertime only in limited areas and protests from landowners had been commonplace .

The appellate court thus found , in agreement with ORG , that , DATE , there had not been such DATE grazing outside the reindeer grazing mountains which , together with the grazing that had taken place during DATE , could create a right to use the relevant properties on the basis of prescription from time immemorial . The longest period in DATE during which DATE grazing had occurred in CARDINAL area without landowners ' objections was DATE , thus insufficient to establish a right based on prescription .

The applicants appealed to ORG on DATE . Their appeal was completed on CARDINAL DATE . In DATE , they submitted documents as to the question of who was to represent them before ORG .

On DATE ORG refused the applicants leave to appeal .

ORG ( Samefonden ) has granted the applicants a loan of SEK CARDINAL,CARDINAL,CARDINAL ( approximately EUR CARDINAL,CARDINAL,CARDINAL ) to pay the litigation costs incurred in the domestic proceedings . The loan , which is free of interest , is due on DATE .

The nature and scope of PERSON rights to land and water are governed by FAC . A person of PERSON descent may use land and water in order to maintain himself and his reindeer ( section CARDINAL ) . The reindeer herding right is a usufruct of economic value founded on prescription from time immemorial ( section CARDINAL , subsection CARDINAL ) . It is to be exercised irrespective of contracts and free of charge , without limitations in time and space and on land belonging to the ORG as well as to private subjects , in accordance with the conditions laid down in sections CARDINAL of the LAW . These provisions also contain restrictions on the exercise of such rights depending , inter alia , on whether the land belongs to the ORG or to private subjects . The reindeer herding right includes the right of members of a LOC village to engage in hunting and fishing , to graze reindeer and to erect certain structures and buildings needed for reindeer herding , as well as to collect wood and timber from the forests . It pertains to all PERSON , but may only be exercised by members of a GPE .

Section CARDINAL of the LAW defines the areas where reindeer herding may be conducted ( renskötselområdet ) . In so far as the county of PERSON is concerned , herding may be carried out throughout DATE on the so - called “ reindeer grazing mountains ” ( renbetesfjällen ) and in those areas within the county which , at DATE , belonged to the ORG and were made available specifically for reindeer grazing . Winter grazing may be carried out from DATE to DATE in such areas outside the reindeer grazing mountains where , since time immemorial , reindeer grazing has been conducted during certain times of DATE .

Section CARDINAL , subsection CARDINAL , defines “ reindeer grazing land ” as land that has been declared to constitute reindeer grazing land through the process of delimitation of ORG lands ( avvittring , that is , a process taking place DATE with the aim of separating private land from ORG land and imposing taxes on the former ) or that has been used as such land since time immemorial . The notion of “ reindeer grazing mountains ” refers to mountains reserved for the PERSON for reindeer grazing through the process of delimitation of ORG lands and the areas which have since then been made available for extension of the mountain grazing areas .

A LOC village is a geographical grazing area and an economic entity . Its main object is to manage reindeer herding within the grazing area of the village to the common benefit of its members ( section CARDINAL ) . A village may acquire rights and undertake commitments and represents its members with regard to issues related to reindeer husbandry ( section CARDINAL ) . The members of a LOC village are PERSON who participate or have participated in reindeer herding within the community 's grazing area , as well as their closest family members ( section CARDINAL ) .

As mentioned above , the reindeer herding right is based on prescription from time immemorial . This was specified in LOC through a DATE amendment , following ORG conclusion in the “ LOC ” that the right to certain mountain areas in northern GPE could be based on prescription from time immemorial in combination with occupation . Provisions on ownership and other , more limited , rights to land based on prescription from time immemorial are mainly found in the old LAW of DATE . For a right of ownership or usufruct based on such prescription to arise , the land had to have been occupied or used for such a long time that nobody knew or had heard that the situation had ever been different ( LAW , LAW , of the old Code ) .

The qualification period required is estimated to be DATE ( see PERSON , GPE , DATE , p. CARDINAL , with references ) . Section CARDINAL of the Act on Implementing the new LAW ( ORG om införande av nya jordabalken ; PERSON ) stipulates that the provisions of the new LAW are not to interfere with any rights to land based on prescription from time immemorial that have arisen before the new LAW came into force ( DATE ) . This implies that any historical provision that could have given a person or entity rights to certain land before that date is still valid . As more specifically regards the PERSON right to DATE grazing based on prescription from time immemorial , the area has not been geographically demarcated in FAC . If there is a dispute about whether a particular piece of land has traditionally been used for herding during certain times of DATE and thus may be used for DATE grazing DATE the issue is to be decided by the courts on the basis of the evidence presented ( see Government PERSON , p. CARDINAL , Government PERSON , p. CARDINAL , and the report by ORG , ORG , p. CARDINAL ) .

Under LAW ( Rättshjälpslagen , DATE ) in force at the material time , legal aid could be given to natural persons who fulfilled certain conditions , in particular that their financial resources were limited . A legal entity like a LOC village was thus not entitled to legal aid .

ORG is regulated in sections CARDINAL of the Reindeer Husbandry Ordinance ( Rennäringsförordningen , DATE ) . The ORG 's purpose is to subsidise and promote reindeer husbandry , PERSON organisations and PERSON culture . As regards the promotion of reindeer husbandry , the subsidies can be used for the purchase and lease of land for reindeer herding , rationalisation of reindeer husbandry and other measures . The means are administered by ORG ( NORP ) . Decisions on how the means are to be used are taken by the board of ORG , which consists of CARDINAL persons of PERSON origin .

The revenue of ORG mainly consists of charges for leases to others than reindeer owners of land belonging to the ORG where reindeer husbandry may be carried out all the DATE round . Such revenue , which includes , for instance , licensing fees for hunting and fishing , is divided equally between the LOC village concerned and ORG .

In its budget proposal for DATE ( Government PERSON ) , which was approved by ORG , the ORG laid down that some of the revenue of ORG could be used to part - finance the lease of land for DATE grazing in the areas concerned in the present case .


The applicants , PERSON ( hereinafter : “ the first applicant ” ) , PERSON ( “ the second applicant ” ) and PERSON PERSON ( “ the third applicant ” ) , are NORP nationals , who were born in DATE , DATE and DATE respectively and live in GPE , GPE .

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

The second applicant is the mother of the first and third applicants .

On DATE the applicants filed with ORG an action against an insurance company P. in which they claimed compensation and supplementary pensions relating to the death of PERSON , the second applicant ’s husband and the other applicants’ father .

On DATE the court gave judgment . It awarded compensation to the applicants and dismissed their claims for pensions . They appealed .

On DATE ORG amended the appealed judgment in that it increased the amount of compensation . On DATE the applicants lodged a cassation appeal against ORG judgment .

On DATE ORG decided to reinstate the time limit for lodging a cassation appeal .

On DATE the first and third applicants withdrew their claims for supplementary pensions , limiting their appeals to the issue of compensation . They submitted that , despite the partial exemption , the fee they had to pay for their cassation appeal was excessive . The applicants therefore decided to limit the overall value of their claims , in consequence of which the proportional fee was reduced and they could afford to pay it .

On DATE ORG gave a judgment . It discontinued the proceedings as far as they concerned the first and third applicants’ claims for pensions , since they had withdrawn those claims and it was bound by their decision . The court quashed part of the judgment of ORG and remitted that part of the case for re - examination . It dismissed the remainder of the cassation appeal .

On DATE , having re - examined the case , ORG amended the judgment of ORG as far as it concerned the first and third applicant . It quashed the part relating to the second applicant and remitted the case in that part for re - examination .

The Jelenia Góra Regional Court held hearings on DATE , DATE , CARDINAL DATE , DATE , DATE , DATE and DATE .

On DATE the ORG gave a judgment . It awarded the second applicant a supplementary pension , as well as overdue pension payments . She appealed .

On DATE ORG amended the appealed judgment .

Relevant domestic law and practice

On DATE NORP ORG adopted a new law “ on complaint about a breach of a right to have one ’s case heard within a reasonable time ” . The act entered into force on DATE .

Section CARDINAL of the LAW provides for a special action by which a party can seek a declaration that his or her right to have a case heard within a reasonable time has been breached . The court shall take into consideration the following criteria : the conduct of the court before which the case is pending ; the character of the case and the complexity of the legal and factual issues involved therein ; what was at stake for the complainant , and the conduct of the parties . The length complaint must be lodged when the proceedings are still pending .

Pursuant to LAW , if the court finds that the length complaint is wellfounded , it shall give a ruling to this effect . If the complainant so requests , the court can also recommend that the court before which the case is pending takes certain procedural measures in the impugned proceedings . The court may also , award an appropriate amount of money to the complainant , in the amount not exceeding PLN MONEY .

Under LAW , within DATE after the entry into force of the LAW , that is , from DATE , anyone who had lodged an application with ORG in due time complaining of a violation of the “ reasonable - time ” requirement contained in LAW was entitled to lodge a length complaint provided for by LAW , if the application to the ORG had been lodged when the proceedings were still pending and if it had not yet been declared admissible by ORG .


The applicant was born in DATE and lives in GPE .

The applicant was teaching biology and chemistry and was the headmaster of ORG in GPE . By its decision of CARDINAL DATE ORG and ORG ( ORG prosvjete i športa ) relieved the applicant of his post of headmaster and dismissed him from work on account that he had reached the retirement age .

On DATE the applicant brought an action in ORG ( ORG ) against that decision .

On DATE ORG declined its jurisdiction in the matter , and on DATE forwarded the case to ORG ( PERSON ) .

On DATE ORG invited the applicant to supplement his claim , which the applicant did within the time - limit indicated . The court held hearings on DATE and DATE .

On DATE ORG , considering that it lacked jurisdiction in the matter , made an application to ORG ( PERSON ) with a view to resolving the negative conflict of jurisdictions .

On DATE ORG ruled that ORG was competent to hear the applicant 's case .

Following the transfer of the case back to ORG , on DATE that court ruled in favour of the applicant . It quashed the impugned decision of CARDINAL DATE and remitted the case to ORG .

NORP Since ORG failed to give a new decision within the statutory time - limit of DATE , on CARDINAL DATE the applicant requested ORG to do so ( see paragraph CARDINAL below ) . In their reply to his request , ORG submitted that it was no longer competent to issue such a decision owing to the change in legislation governing primary education . On DATE ORG , acting as a court of full jurisdiction , issued a decision entirely substituting for that of the Ministry . It dismissed the applicant 's request by accepting that the Ministry no longer had competence in the matter . However , it found that in those circumstances the ORG should have forwarded the case - file to a body authorised under the new legislation to issue such a decision – the school board of ORG . ORG did so on DATE .

It appears that the case is currently pending before the school board .

Meanwhile , on DATE the applicant lodged a constitutional complaint about the length of the proceedings . On DATE ORG ( Ustavni sud PERSON ) dismissed the applicant 's complaint . It examined only the length of the proceedings in their part between the introduction of the applicant 's request to ORG on DATE and the lodging of the constitutional complaint . ORG dismissed the constitutional complaint finding that the proceedings had lasted DATE .

The relevant part of CARDINAL of LAW on LAW ( Ustavni zakon o PERSON , ORG no . CARDINAL of CARDINAL DATE – “ LAW ” ) reads as follows :

“ ( CARDINAL ) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the individual 's rights and obligations or a criminal charge against him or her within a reasonable time ...

( CARDINAL ) If a constitutional complaint ... under paragraph CARDINAL of this section is upheld , the Constitutional Court shall set a time - limit within which the competent court must decide the case on the merits ...

( CARDINAL ) In a decision issued under paragraph CARDINAL of this section , the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the ORG budget within DATE from the date a request for payment is lodged . ”

The relevant provisions of LAW ( Zakon o upravnim sporovima , ORG nos . CARDINAL/CARDINAL , DATE and CARDINAL ) provide as follows :

Section CARDINAL ) provides that , in the execution of ORG judgment , the administrative authority shall issue its decision immediately but at the latest within DATE . Otherwise , a party may by a special submission request it to do so . If the authority does not issue a decision within DATE following that request , a party may apply to ORG .

Section CARDINAL(CARDINAL ) provides that if such an application was made , the ORG shall first ask the administrative authority to give reasons for its omission . The authority shall reply immediately but at the latest within DATE . If the authority fails to do so , or if the reasons given do not justify the failure to decide , the ORG shall give a decision entirely substituting for the decision of the administrative authority .


The application was originally submitted by PERSON ( hereinafter “ the applicant ” ) and PERSON . The latter ’s complaints were declared inadmissible by ORG ( “ the Commission ” ) on DATE . The present applicant is a NORP national who was born in DATE . He is a businessman resident in PERSON . Before the ORG he is represented by Mr PERSON , a lawyer practising in GPE .

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

A.

In DATE the applicant sued CARDINAL companies , a limited partnership company P ( hereinafter “ P Company ” ) and a finance company I ( hereinafter “ I Company ” ) , for damages resulting from a breach of contract relating to his hire - purchase of a forestry vehicle and related equipment . He argued , inter alia , that the relevant vehicle model had not been officially approved by the authorities for the purpose and could therefore not be used . In a further suit of DATE he requested that the hire - purchase contract be dissolved .

The parties appeared CARDINAL times before the then ORG ( raastuvanoikeus , rådstuvurätten ) of GPE . The presiding judge apparently changed on a number of occasions .

The court heard thirteen witnesses called by the applicant and CARDINAL witnesses called by the companies . The parties did not call any further witnesses .

The applicant objected to the hearing of CARDINAL witnesses called by the companies . Firstly , he objected to the examination of witness K on the grounds that K was a limited partner in P Company . The court dismissed the applicant ’s objection and heard evidence from PERSON , the applicant objected to the examination of ORG , a lawyer employed by ORG , stating that ORG had sat among the audience at least during the first CARDINAL court sessions . ORG asked ORG whether he had participated in the previous pleadings . PP having answered in the negative , ORG dismissed the objection . According to TIME of the case , the applicant asked ORG whether he had been present in the courtroom during the CARDINAL first court sessions . ORG replied that he had been among the audience . Furthermore , ORG heard evidence , among others , from ORG , who was ORG of P Company .

In DATE I Company countersued the applicant for breach of the hire - purchase contract . On DATE the applicant objected to the countersuit , claiming that the summons had not been duly served on him since he had only been given copies of the annexes to the writ of summons . ORG rejected the objection , noting that the applicant had acknowledged that , although he had received only copies of certain annexes , the relevant original documents had nevertheless been shown to him .

ORG last session on DATE was presided over by Judge PERSON On DATE ORG rejected the applicant 's action . The judgment comprises CARDINAL pages . TIME last court session state , inter alia , as follows :

" ... After judgment had been pronounced [ the applicant ’s counsel ] stated that the lack of an official approval of the ... vehicle model had been one of the grounds for the action and DATE ... the principal issue . Counsel ... therefore requested that ORG pronounce itself on the question of the model approval . The parties having stepped out , ORG inserted a finding on this point in its judgment and pronounced it to the parties . ... "

On this point ORG found that it had not been shown that the vehicle required a model approval and that , in any case , the applicant had inspected and accepted the vehicle before concluding the hire - purchase contract .

In DATE the applicant appealed against ORG judgment . He stated , inter alia , that witness ORG should not have been heard and that his testimony should therefore be ignored . In addition , he criticised the proficiency of the judges of ORG .

On DATE , ORG ( hovioikeus , hovrätten ) approved ORG decision as regards the CARDINAL procedural objections concerning witnesses K and PP . Furthermore , it found no indication that ORG had been prevented from testifying on account of his position in P Company . ORG went on to reject the appeal as a whole .

In DATE the applicant requested leave to appeal . He stated , inter alia , that during the hearings CARDINAL of the judges of ORG had made improper eye contact with the ORG counsels .

In a document signed by the applicant 's wife on DATE she confirmed that prior to being heard as a witness before ORG a lawyer named ORG , employed by ORG , had sat among the audience during CARDINAL or CARDINAL court sessions . At the beginning of the oral hearings , the applicant ’s counsel had already objected to ORG 's presence . The document was submitted to the Commission as an annex to the application .

On DATE , ORG ( korkein oikeus , högsta domstolen ) refused the applicant leave to appeal . It does not appear whether the above - mentioned document of DATE was submitted to ORG .

In a document signed by the applicant and his wife on DATE they stated , among other things , that while the case was pending before ORG , I Company 's counsel and the lawyer PP employed by it repeatedly stated that because of their contacts with the judiciary the applicant 's action was bound to fail .

In a later civil case , completely unrelated to the applicant ’s case , one of the parties requested that the above - mentioned Judge T step down on account of his being a member of the NORP ( vapaamuurarit , frimurarna ) as were some of the directors of the other party . ORG ( the former ORG ) , were the case was pending , rejected this request on DATE . Thereafter , ORG ( eduskunnan oikeusasiamies , riksdagens justitieombudsman ) was filed with a petition . On DATE Judge T excluded himself from the case on his own initiative .

The applicant became aware of Judge T ’s membership of the NORP through a newspaper report of DATE . It does not , however , appear when he started to believe that some of the members belonging to the management of ORG were , or might be , NORP .

It does not appear which members belonging to I Company ’s management , if any , were PERSON at the relevant time .

The applicant did not request the case be reopened .

B. Relevant domestic law and practice

According to chapter CARDINAL , section CARDINAL , of the Code of Judicial Procedure ( oikeudenkäymiskaari , rättegångs balk ) , a judgment which has acquired legal force may be nullified ( poistaa , undanröja ) by a court of appeal or ORG on account of a procedural error if , for instance , the case was examined even though the court lacked quorum or should of its own motion have declined to examine the case for a particular reason ( CARDINAL ) ; or if another procedural error has occurred which is found to have or can be presumed to have essentially influenced the outcome of the case ( CARDINAL ) . If nullification is sought on these grounds , the application shall be lodged within DATE from the date when the judgment sought to be annulled acquired legal force ( section CARDINAL ) .

According to chapter CARDINAL , section CARDINAL , of the Code of Judicial Procedure , a judgment in a civil case which has acquired legal force may be annulled ( purkaa , återbryta ) by ORG if , for instance , a member or an official of the court has committed a criminal act which can be presumed to have influenced the outcome of the case ( CARDINAL ) ; if a circumstance or piece of evidence , which was not introduced previously , is referred to and its introducing would probably have led to a different outcome of the case ( CARDINAL ) ; or if the judgment is based on manifestly incorrect application of the law ( CARDINAL ) . Such an application shall be lodged within DATE from the date when the applicant became aware of the circumstance on which the application is based ( CARDINAL ) , or judgment concerning the criminal act ( CARDINAL ) , or the judgment sought to be annulled ( CARDINAL ) acquired legal force . In the CARDINAL first - mentioned cases the application shall at any rate be made within DATE from the date when the judgment sought to be annulled acquired legal force , unless weighty reasons are put forward for a later application ( section CARDINAL and ORG precedent No . CARDINAL:CARDINAL ) .

In a judgment of DATE , ORG nullified , by virtue of DATE , section CARDINAL , of LAW , a decision of its own for a reason relating to the disqualification of a judge who had participated in the taking of that decision .


Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

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

The applicant instituted proceedings in the ORG of Donetsk Region against ORG No . CARDINAL – a ORG - owned enterprise – to recover salary arrears .

On DATE the ORG found in favour of the applicant ( ORG городского суда PERSON области ) and awarded him ORG CARDINAL,CARDINAL.CARDINAL . On DATE ORG ( PERSON исполнительной службы Новогродовского городского управления юстиции ) initiated the enforcement proceedings .

By a number of decisions of ORG of GPE , ORG had been prohibited from selling the property of ORG , due to the bankruptcy proceedings which had been initiated against the company .

In DATE the judgment in the applicant ’s favour was enforced in full .

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