JANKOVIC AND MANDIC v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

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

The applicants , Mr PERSON and PERSON , are NORP nationals who were born in DATE and DATE respectively , and live in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON . ORG were invited to intervene in the proceedings ( LAW ) . However , by letter of DATE they notified the ORG that they did not wish to exercise their right to do so .

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

On DATE the applicants , while travelling in the former GPE in their car , ran off the road into an abyss .

On DATE they brought , through their legal representative , a compensation claim against the public undertaking responsible for road maintenance alleging that the accident had been caused by a landslide . On DATE ORG of ORG ruled partly in favour of the applicants . After CARDINAL remittal , the applicants’ case was finally decided by ORG decision of CARDINAL DATE . According to the copy of a receipt slip submitted by ORG , this latter decision was served on the ORG representative on DATE .


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

András Sajó;Françoise Tulkens;Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque

NORP The applicant ’s late husband was employed by DATE , a company based in GPE ( “ the company ” ) . DATE he was deployed on certain projects in GPE , for which work , apart from his salary , he had the right to claim an allowance calculated in GPE dollars ( USD ) .

On DATE ORG in GPE instituted insolvency proceedings in respect of the company .

On an unspecified date thereafter PERSON lodged a pecuniary claim within the insolvency proceedings for salary arrears , deployment allowance , and various social security contributions . On DATE ORG rejected his claim and instructed him to initiate a regular civil suit and request determination of his claim ( radi utvrđivanja osporenih potraživanja ) .

On DATE PERSON , as instructed , lodged a separate civil claim .

On DATE ORG rejected the part of PERSON request regarding the salaries , as it was considered to have been withdrawn , while the request for deployment allowance was partly granted . By virtue of this judgment the company was ordered to pay him USD MONEY towards the unpaid allowances , together with the social security contributions due and statutory interest , plus MONEY ( ORG ) for legal costs .

On DATE and DATE respectively ORG and ORG upheld the judgment of DATE . The judgment of ORG was served on the applicant after DATE .

On an unspecified date thereafter , the said judgment having become final , it was acknowledged within the insolvency proceedings .

On DATE the costs awarded in the civil proceedings were paid , while on DATE the interest calculated on the costs was also paid .

On CARDINAL occasions DATE and DATE the company paid the applicant various smaller amounts in “ hardship assistance ” ( solidarna pomoć ) , to help cover certain medical bills . The total of all these sums amounted to an equivalent of MONEY . These amounts , however , were not specified as being intended to constitute partial payment of the debt , but as assistance to the applicant ’s family because of the applicant ’s late husband ’s illness .

On DATE ORG issued a decision ordering payment of PERCENT of the guaranteed salary to all the former employees of the company for the period from DATE to CARDINAL DATE . On DATE the applicant received a payment under this head of MONEY ( ORG , CARDINAL at the relevant time ) .

NORP Before the insolvency proceedings the debtor company was entirely socially owned . It has remained registered as fully socially owned in the relevant public registries throughout the insolvency proceedings .

On DATE the company was put up for auction , in accordance with the provisions of the applicable law ( see paragraph CARDINAL below ) . Following several unsuccessful auction attempts , on DATE ORG authorised the sale of the company to a third private party . The purchase price has been added to the company ’s assets .

On DATE ORG in GPE terminated the insolvency proceedings against the company , however continuing with insolvency action against the bankruptcy estate . On DATE ORG authorised payment of certain sums to some of the former employees of the company , but the applicant was not placed on the list for payment .

Article CARDINAL of the Forced Settlement , LAW ( Zakon o prinudnom poravnanju , stečaju i likvidaciji , published in ORG no . CARDINAL and OG FRY nos . CARDINAL/CARDINAL and CARDINAL/CARDINAL ) provided that with the opening of bankruptcy proceedings the entire assets of the company were to be transformed into the bankruptcy estate ( stečajna masa ) .

Upon the opening of the bankruptcy proceedings , the creditors have to report their claims to the bankruptcy council ( stečajno veće ; LAW ) , which requests the bankruptcy administrator ( stečajni upravnik ) and other creditors to either approve or dispute any claim ( ORG CARDINAL and CARDINAL ) .

The creditor whose claim had been disputed in the bankruptcy proceedings shall be instructed to initiate civil dispute or other proceedings requesting determination of his or her claim ( LAW ) . The claims finally established in civil proceedings shall take part in the distribution of the bankruptcy estate ( LAW ) .

All debts of the company are to be paid proportionally , apart from the payments on account of salaries up to the amount of the guaranteed salaries ( LAW ) , payments on account of the costs of civil proceedings from LAW and some other costs , which are to be paid as a priority and in their entirety ( LAW .

According to LAW the company subject to bankruptcy , as a legal person , could have been sold separately . Once the company is sold , the bankruptcy proceedings are terminated in relation to the company , while they are to be continued in relation to the bankruptcy estate ( LAW ) . Following termination of the bankruptcy proceedings the debtor company is no longer held responsible for any debts of the company ( LAW ) .

The remainder of the relevant domestic law is set out in the ORG ’s judgments of PERSON and ORG ( nos . CARDINAL , CARDINAL , DATE , DATE , CARDINAL and CARDINAL , DATE , § § CARDINAL - CARDINAL ) ; PERSON ( no . CARDINAL/CARDINAL , § § DATE , DATE ) ; PERSON and Others v. PERSON ( nos . CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL , CARDINAL DATE , § § CARDINAL - CARDINAL ) ; ORG GPE ( no . CARDINAL , § § CARDINAL and DATE , CARDINAL DATE ) ; and GPE and Others v. PERSON ( no . CARDINAL/CARDINAL , § CARDINAL , DATE ) .


André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Mark Villiger

The first applicant , PERSON , is an unincorporated association which did not inform the ORG of any registered address . The second applicant , Mr PERSON , an NORP national who lives in GPE , is the appointed representative of the first applicant for the purposes of the proceedings before the ORG . The third to seventeenth applicants ( see list appended ) are members or supporters of the first applicant residing in GPE and GPE ( applicant no . CARDINAL ) . They were represented before the ORG by Mr PERSON of ORG solicitors , a law - firm practising in GPE .

ORG ( “ the Government ” ) were represented by their agent , PERSON , of ORG and by Mr PERSON , professor of international law at ORG .

Having been informed on DATE of their right to submit written observations , ORG indicated to the ORG that they did not intend to take part in the proceedings . ORG did not express an intention to take part in the proceedings .

The first applicant , whose name means “ ORG ” , describes itself as a “ global NORP political party and/or religious society ” . It was established in GPE in DATE and advocates the overthrow of governments throughout the NORP world and their replacement by an NORP State in the form of a recreated ORG . The first applicant has achieved a small , but highly committed following in a number of NORP states and has also gained popularity among NORP in LOC . In GPE , where the first applicant has been active since DATE , it has CARDINAL followers .

On DATE the NORP ORG of the Interior ( ORG ) issued a decision by which it proscribed the first applicant ’s activities within NORP territory under sections CARDINAL § CARDINAL , CARDINAL § CARDINAL no . CARDINAL in conjunction with sections CARDINAL § CARDINAL and CARDINAL § CARDINAL of ORG ( see relevant domestic law , below ) . It further ordered the first applicant ’s assets to be confiscated . Assets of third parties were confiscated as far as they had been intentionally used or were intended to be used to promote the first applicant ’s illegal activities .

The Ministry considered that the first applicant was a foreign private association operating on an international scale and that there existed no known sub - organisation in GPE . Its activities in GPE included the distribution of leaflets and brochures and the distribution of information via internet as well as , more recently , the organisation of public events .

The Ministry considered that the first applicant ’s activities were directed against the principle of international understanding and that the applicant advocated the use of violence as a means to achieve its political goals . The organisation ’s mouthpiece and ideological platform in GPE was the DATE magazine “ FAC .

Basing its decision on the book “ The inevitability of the battle of cultures ” , published in DATE by the organisation ’s founder , ORG , as well as on a number of publications attributed to the first applicant , in particular articles published in the magazine “ PERSON , leaflets and publications on the organisation ’s website , ORG considered that the first applicant denied the right of GPE to exist and called for its destruction and for the killing of NORP . This constituted an expression of the applicant ’s basic philosophical position , which included the “ active Jihad ” . The applicant agitated in a targeted fashion against NORP States and the governments , which overthrow it repeatedly called for . It pursued its objectives , which were directed against the concept of international understanding , in a pro - actively aggressive manner . It did not thereby restrict itself to merely criticising existing political or social conditions or rejecting peaceful coexistence between GPE and peoples but also called for the armed struggle against the State of GPE , NORP and ORG .

The ORG further considered that the first applicant was not a political party , as it did not intend to stand for elections in GPE . It further held that the first applicant was not to be regarded as a religious or philosophical community ( Religions- oder PERSON ) , as it did not pursue religious , but political objectives .

On DATE the applicants , represented by counsel , lodged an application against the prohibition order with ORG ) . They alleged , in particular , that the prohibition violated their right to freedom of religion under LAW . They denied that they advocated the use of violence .

On DATE ORG ordered the first applicant to submit evidence as to where the organisation was based . On DATE the first applicant pointed out that its organisation was prohibited in all NORP states , they were thus forced to work clandestinely and were unable to reveal the organisation ’s address .

On DATE ORG severed the first applicant ’s application from the remainder of the proceedings and declared it admissible . That court considered that the first applicant had the legal standing to lodge an application against the prohibition order . Furthermore , it had been properly represented before the court . On DATE , ORG orally informed the applicants , that , under its established case - law ( compare paragraph CARDINAL , below ) actions lodged by individual members of a prohibited association were to be declared inadmissible . A decision on the admissibility of the remaining applicants’ actions was postponed until DATE .

On DATE the second to seventeenth applicants withdrew their applications with reference to the indication given by ORG as to the inadmissibility of their applications . On DATE ORG decided to discontinue the proceedings insofar as they concerned the applications lodged by these applicants .

NORP In its submissions dated CARDINAL and DATE , the first applicant accepted that it was not to be regarded as a political party within the meaning of the relevant law . The first applicant claimed , however , that all its activities had a religious foundation and that it enjoyed the protection of freedom of religion under LAW . It further submitted that the Government had misconstrued the nature of its ideology , stressing , in particular , that the first applicant promoted peaceful dialogue and had never advocated the use of violence . It contested that the magazine “ PERSON was the organisation ’s mouthpiece . The first applicant further pointed out that it did not seek to establish a “ caliphate ” in any of the NORP democracies . Lastly , it complained of a violation of its rights under Articles CARDINAL , CARDINAL and CARDINAL of the Convention .

On DATE ORG , by court order without a prior oral hearing , rejected the first applicant ’s application as unfounded . Relying on the so - called “ organisational law ” submitted by the applicants , the court considered that the first applicant did not fulfil the requirements of a religious community , as its activities did not include the exercise of a common religious practice . Furthermore , the first applicant could not be regarded as a philosophical community , as its existence and activities were based on ORG .

ORG further confirmed that the first applicant ’s activities were directed against the principle of international understanding and were thus subject to prohibition under LAW of LAW in conjunction with ORG . Examining the sources already relied upon by ORG , the court considered that numerous statements were attributable to the applicant , which called for the violent elimination of ORG and for the physical destruction of human lives and thus worked contrary to a peaceful resolution of LOC conflict .

The ORG considered that articles published in the magazine “ Explizit ” contained denials of GPE ’s right to exist and called for the violent elimination of ORG or for people to be killed . The LAW “ PERSON noch ? ” ( How long ? ; PERSON , issue no . DATE , p. CARDINAL et seqq . ) addressed the political and military situation in GPE . The article sharply criticised the NORP peace deal adopted at the summit meeting of GPE in GPE in DATE . This was followed by criticism of the NORP authority , which was accused of not pursuing the goal of

“ freeing GPE , but of handing over GPE in the name of the NORP people to the NORP . ”

This assessment was followed by the statement :

“ As NORP , we must be clear that the problem of “ GPE ” is not a border issue but an existential issue . The NORP foreign body at the heart of the NORP world can under no circumstances be allowed to continue to exist ... We repeat again the unalterable NORP duty : There can only be one response to the NORP aggression in GPE : Jihad . Allah , the Exalted , commands : “ And slay them wherever ye catch them , and turn them out from where they have turned you out ” ( PERSON CARDINAL , PERSON ) . ”

This was followed by the opinion that GPE was to be overcome by military means and that the

“ NORP armies ( had ) never really fought against the NORP aggressor ” .

The court considered that the call to Jihad in the article represented a summons to violently eliminate ORG . It conceded that the term “ Jihad ” was multilayered in NORP usage , referring to more than just the “ Holy War ” . The term described every endeavour , effort and strengthening of ORG . What was decisive in the present context , however , was how the term was to be understood by readers in the context of the article . It was embedded in the statement that GPE could on no account be allowed to continue to exist and the summons to eliminate the ORG by military means . In this context there could be no doubt that the call to ORG was aimed at the violent destruction of GPE as a solution to the NORP - Palestinian conflict . This interpretation corresponded to the quotation from the DATE relied upon in the article . It did not have to be decided how this quotation was to be understood in its original context . In the context of the article , it constituted a call to take violent action with the intention of causing physical destruction and banishment .

In the article “ PERSON – Happy Birthday GPE ? ” ( DATE Happy birthday GPE ? , PERSON , issue no . CARDINAL , DATE , p. CARDINAL et seqq . ) it was stated that the creation of ORG to the detriment of the NORP people was accompanied by crimes against humanity and that GPE thus lacked legitimacy . The article closed with the following statement :

“ Whoever accepts the State of GPE is against Allah ’s commands and thus commits a serious sin . ”

This was followed by a quotation from the Qur’an of a “ command by Allah ” :

“ And fight for Allah against those who fight against you , but do not transgress ! Truly , Allah loves those who do not transgress . And slay them wherever ye catch them , and turn them out from where they have turned you out . ”

The court considered that it could be left open whether the denial of GPE ’s right to exist already breached the concept of international understanding . An any rate , that concept had been interfered with as soon as the assertion was followed by a call violently to eliminate ORG , as had been the case with regard to the quotation from the DATE .

ORG analysed the content of one further article published in the magazine PERSON in DATE and concluded that that article also contained a call for the destruction of the State of GPE .

According to the court , there were a number of indications , which taken as a whole , left no doubt that there was a close link between the magazine “ PERSON and the first applicant , and that therefore the articles discussed in the above were attributable to the first applicant .

The call to eliminate the State of GPE by force and to kill people was not restricted to the magazine “ PERSON . Among other sources , the court referred to a transcript dated DATE of a programme broadcast on GPE local television about a debate on LOC conflict at ORG , according to which the second applicant said the following with regard to suicide attacks in GPE :

“ These actions would be banned in GPE or in other countries in the West – since ORG rejects violence against civilians , but there are no civilians in GPE ; all of them , women and men , are part of the military and the founding of GPE was an act of aggression . Everyone who goes to GPE and lives there is complicit in it . An attack on an institution with adults inside is an act of self - defence . If children are also killed , their parents are responsible for having decided to live in GPE . ”

ORG considered that these statements , in which the second applicant justified the physical destruction of NORP nationals , spoke for themselves . According to the court , the same objective was reflected in a statement made by the second applicant at an event held on DATE , during which he said :

“ For us , GPE is a State of aggression . A State of violence , a State of attack . That is why we are not prepared to accept this ORG , to make peace with this NORP entity . This State was built upon the blood of NORP , through aggression , through violence and we have a duty as NORP to liberate the land again . ”

According to ORG , the denial of GPE ’s right to exist , linked to the call to eliminate the ORG by force , was also the subject matter of several of the first applicant ’s flyers . The court quoted , inter alia , a flyer dated DATE , which read :

“ The whole of GPE , from the sea to the river , is NORP territory . NORP are duty bound to liberate it from the rule of the NORP , even if it costs the lives of CARDINAL of martyrs . ”

Another flyer dated DATE contained the following :

“ The NORP question is not a question of withdrawing from the region called the NORP territories . Nor is it a question of the withdrawal from GPE , GPE or from GPE . It is the NORP entity itself which unlawfully appropriated GPE . The solution is to uproot the NORP entity from the entire NORP territory . Thus speaks Allah : “ And slay them wherever ye catch them , and turn them out from where they have turned you out” ... CARDINAL ) . Every recognition , every negotiation with the NORP is treason against Allah , His PERSON and the believers . We are not allowed to accept this or to keep quiet about it . ”

Lastly , the court considered that the prohibition was proportionate . In this connection , it observed that the first applicant did not enjoy special protection under the LAW as a religious or philosophical community . It further considered that ORG did not have a milder means at their disposition to achieve the pursued aim .

On DATE the first applicant submitted its comments on the court order . It alleged , in particular , that the court ’s interpretation of the notion “ religious community ” had been too restrictive and was not consistent with the case law of ORG . It further requested an oral hearing to be held .

By judgment of DATE , which was served on the applicants’ counsel on DATE , ORG , following a hearing , rejected the application as unfounded . At the outset , the court confirmed its ruling that the applicant could not be regarded as a religious community , as its aims were primarily of a political nature , even if they were based on religious foundations .

ORG further considered that , even assuming that the first applicant could be regarded as a religious community or a religious association ( religiöser ORG ) , it remained subject to prohibition under LAW . The court was satisfied that the conditions for a ban to be issued were fulfilled because a multitude of public statements attributable to the first applicant against the backdrop of the NORP - Palestinian conflict called for the violent elimination of the ORG of GPE and for people to be killed .

ORG considered that the first applicant ’s objections against this ruling were not convincing . The evidence presented in the court order was sufficient to justify the assumption that the cited articles were attributable to the first applicant . Irrespective of this fact , the first applicant ’s calls for ORG to be eliminated by force and for people to be killed were not only restricted to the magazine “ LOC .

The court lastly found that , having regard to the seriousness of the statements attributable to the first applicant , the measure taken had to be regarded as proportionate even if the first applicant did enjoy the right to religious freedom . It would , in particular , not have been sufficient exclusively to ban the second applicant ’s activity , as the impugned statements were not only made by the second applicant . Neither would it have been sufficient to ban the first applicant from issuing statements on LOC conflict , as the first applicant regarded it as a primary duty to combat and violently to destroy GPE . As was demonstrated by the multitude of statements examined by the court in its court order , and had been confirmed by the first applicant during the oral hearing , the first applicant considered it as a main duty of the Caliphate to be created to destroy GPE . These statements had such a weight that even the protection , which religious and philosophical associations generally enjoyed under LAW , did not call for renouncing the prohibition for the mere reason that the statements had so far not been followed by actions .

On DATE the first applicant lodged a constitutional complaint , alleging , in particular , that the prohibition was disproportionate and violated its right freely to assemble as a religious community ( religiöse PERSON ) under LAW . The first applicant complained , in particular , that LAW was not applicable in the instant case . Furthermore , the prohibition order failed sufficiently to take into account its interests as a religious community and was disproportionate . According to the first applicant , it would have been sufficient to order the second applicant or other members of the association to refrain from making political statements on LOC conflict . The first applicant further alleged that the impugned decisions violated its rights under Articles CARDINAL , CARDINAL , DATE and DATE of the Convention .

On DATE ORG , sitting as a panel of CARDINAL judges , refused to admit the first applicant ’s complaint for adjudication . According to that court , the complaint was inadmissible because the first applicant was not qualified to file a complaint as it did not have a registered address in GPE . Pursuant to the relevant provisions of the PERSON on proceedings before ORG , only those persons who could claim a violation of their constitutional rights were entitled to lodge a constitutional complaint . LAW of LAW provided that the basic rights also applied to domestic legal persons to the extent that the nature of such rights permitted . The applicant , however , was a foreign legal person . While it might be considered that a foreign legal person based in another member ORG of ORG had a right to equal treatment under LAW , this did not apply in the first applicant ’s case , as it had not been established that the first applicant had a registered office in another ORG member ORG .

This decision was served on the first applicant ’s counsel on DATE .

The relevant provisions of the German Basic Law ( Grundgesetz ) read as follows :

Article CARDINAL

[ Personal freedoms ]

“ ( CARDINAL ) Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law . ”

Article CARDINAL

[ Freedom of faith and conscience ]

“ ( CARDINAL ) Freedom of faith and of conscience , and freedom to profess a religious or philosophical creed , shall be inviolable .

( CARDINAL ) The undisturbed practice of religion shall be guaranteed .

Article CARDINAL

[ Freedom of association ]

“ ( CARDINAL ) NORP shall have the right to form corporations and other associations .

( CARDINAL ) ORG whose aims or activities contravene the criminal laws , or that are directed against the constitutional order or the concept of international understanding , shall be prohibited .

Article CARDINAL

[ Restriction of basic rights – Legal remedies ]

“ ( CARDINAL ) Insofar as , under LAW , a basic right may be restricted by or pursuant to a law , such law must apply generally and not merely to a single case . In addition , the law must specify the basic right affected and the LAW in which it appears .

( CARDINAL ) In no case may the essence of a basic right be affected .

( CARDINAL ) The basic rights shall also apply to domestic legal persons to the extent that the nature of such rights permits .

( CARDINAL ) Should any person ’s rights be violated by public authority , he may have recourse to the courts . If no other jurisdiction has been established , recourse shall be to the ordinary courts ... ”

The relevant sections of ORG ) read as follows :

Section CARDINAL

Banning

“ ( CARDINAL ) ORG association can only be treated as being banned ( LAW ) if the competent authority established by decree that its aims or its activity contravene the criminal law or that they are directed against the constitutional order or against the idea of international understanding ; the order shall decree the dissolution of the association ( ban ) . As a general rule , such ban shall entail confiscations and seizure of

ORG association ’s assets ,

CARDINAL ... and

property of third parties provided that the owner , by handling the items over to the association , has deliberately promoted the association ’s anti - constitutional activities or if the items were intended to further such activities .

Section CARDINAL

Geographical applicability of bans imposed on associations

“ ... If a ( foreign ) association does not have a sub - organisation within the geographical applicability of this LAW , the ban ( section CARDINAL paragraph CARDINAL ) is directed against its activity within that territory . ”

Section CARDINAL

“ Anyone who , within the geographical applicability of this act , by pursuing an activity

contravenes an enforceable prohibition under section CARDINAL sentence CARDINAL ( ... ) will be sentenced to up to DATE imprisonment or to a fine . ”

Under the established case - law of ORG ( compare judgment of CARDINAL DATE , no . CARDINAL A CARDINAL and decision of DATE , no . CARDINAL A CARDINAL ) , individual members of an association are not entitled to lodge actions against the banning of the respective association , because the ban exclusively affects the legal position of the respective association , and not the individual rights of its members .


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

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

C.S. was the owner of a flat in GPE , which she had let to GPE

On DATE the applicants became the owners of the flat .

The applicants served formal notice on the tenant on DATE , informing him that they intended to terminate the lease when it expired on DATE , requiring him to vacate the LOC by that date and giving him notice to appear before ORG .

In a decision of DATE , that court formally fixed the termination of the lease for DATE and ruled that the LOC would have to be vacated by DATE . The decision became enforceable on CARDINAL DATE .

On DATE of the applicants , PERSON , signed a statutory declaration to the effect that she urgently needed to recover the use of the flat for her own accommodation .

On DATE the applicants served notice on the tenant requiring him to vacate the LOC .

On DATE they served notice on the tenant indicating that he would be evicted on DATE by a bailiff .

DATE and DATE a bailiff made CARDINAL attempts to evict the tenant but each attempt proved unsuccessful . The applicants never obtained police assistance for the enforcement of the eviction .

On DATE , relying on section CARDINAL of Law no . CARDINAL , the tenant applied to ORG for a stay of execution of the eviction . The court stayed the execution until DATE .

NORP In DATE the tenant spontaneously vacated the LOC and the applicants were able to recover the use of their flat .

Since DATE the public authorities in GPE have frequently intervened in residential tenancy legislation with the aim of controlling rents . This has been achieved by rent freezes ( occasionally relaxed when the government decreed statutory increases ) , by the statutory extension of all current leases and by the suspension or staggering of the enforcement of orders for possession . With respect to the extension of leases and the suspension or staggering of the enforcement of orders for possession , the relevant domestic law is set out in the ORG 's judgment in the case of ORG GPE ( [ ORG ] , no . CARDINAL , § § DATE , ECHR CARDINAL-V ) .

Lastly , Legislative Decree no . CARDINAL of DATE , which later became PERSON no . CARDINAL/CARDINAL , suspended the enforcement of certain orders for possession until DATE .

By Legislative Decree no . CARDINAL of DATE , the suspension was extended until DATE .

The history of legislative developments in the area of rent control may be summarised as follows .

The first relevant measure was PERSON no . CARDINAL of DATE , which provided for a system of “ fair rents ” ( equo canone ) on the basis of a number of criteria such as the surface area of the flat and the cost of its construction .

The second was adopted by the NORP authorities in DATE , with a view to the progressive liberalisation of the rental property market . Legislation relaxing rent level restrictions ( patti in deroga ) then came into force . Owners and tenants were in principle given the opportunity to derogate from the rent fixed by law and to agree on a different amount .

Lastly , PERSON no . CARDINAL of DATE reformed the tenancy regulations and liberalised rents .

The tenant is under a general obligation to compensate the landlord for any loss caused by the belated return of the accommodation . In this connection , Article CARDINAL of the Civil Code provides :

“ Tenants who fail to vacate premises are under an obligation to pay the landlord the agreed amount until DATE of their departure , together with compensation for any other loss . ”

NORP However , PERSON no . CARDINAL of CARDINAL DATE provided , inter alia , that the compensation claimable by the landlord would be limited to the amount of the rent paid by the tenant at the time of the expiry of the lease , index - linked to the cost of living ( section CARDINAL of Law no . CARDINAL of DATE ) and increased by PERCENT , in respect of the whole period in which the landlord had been unable to recover possession of his property .

On a number of occasions ORG has been called upon to consider whether the statutory system for the extension of leases and for the suspension or staggering of the enforcement of orders for possession was compatible with the LAW in terms of the right to peaceful enjoyment of property and the reasonable - time requirement . It has also been requested to rule on the issue of the limitation to the compensation that a landlord is entitled to claim .

NORP In response to the first question , ORG gave a number of judgments DATE ( in particular , judgments nos . CARDINAL of DATE , CARDINAL of DATE and CARDINAL of DATE ) in which it found that the legislative measures were compliant , being justified by their transitional and limited nature . In the last of the above - mentioned judgments , in particular , ORG asserted that , even though the legislature had a duty to make provision for individuals who were particularly destitute , the burden could no longer simply be transferred exclusively to the landlord , who might himself be in a situation of hardship . Moreover , the future continuation of the same legislative logic could no longer be perceived as legitimate .

As to the second question , in judgment no . CARDINAL of DATE ORG confirmed that compensation could be limited during the periods determined by law for the suspension of evictions . It explained that the introduction of such limits was intended to govern tenancies concerned by the emergency legislation currently in force , and that the housing shortage made such suspension of enforcement necessary . Whilst evictions were suspended ex lege , the law also determined the quantum of the compensation that could be claimed from the tenant , both measures being temporary and exceptional . Besides , to compensate landlords to some extent , they had been exempted from having to prove that they had suffered a loss .

ORG declared the limitation to the compensation claimable by the landlord unconstitutional in cases where the inability of the landlord to recover possession stemmed from the conduct of the tenant rather than from any legislative intervention .

The court thus opened the way for landlords to bring civil proceedings in order to obtain full compensation for the loss caused by the tenant .

In its judgment no . CARDINAL of DATE , ORG held that Article CARDINAL of LAW did not prevent the parties concerned from agreeing in advance on the amount of the compensation , so that the landlord would not be obliged to adduce evidence of the sum lost .

In its subsequent judgment no . CARDINAL of DATE , ORG explained that a delay in the return of the property could only , by itself , justify a general finding that the tenant should pay compensation for the loss sustained by the landlord , who would be required to provide specific evidence of that loss in relation to the condition and location of the property and its potential use . In that particular case , ORG upheld the decision of the court below , which had dismissed the landlord 's claim for compensation on the ground that he had not submitted evidence of the loss actually sustained by producing specific documents concerning precise offers to rent the property or agreements with prospective tenants on rent rates .

In judgment no . DATE of DATE , ORG considered that the loss sustained by a landlord could also be evaluated on an equitable basis .

In judgment no . DATE of CARDINAL DATE , ORG established that the limiting of the compensation to which a landlord was entitled only applied in respect of periods during which the suspension of evictions had been provided for by law .

In judgment no . CARDINAL of DATE , ORG confirmed that the landlord was obliged to provide evidence of precise offers to rent or purchase the property , in order to substantiate the loss claimed on the basis of a shortfall in rent or an inability to sell the flat . The same principle was subsequently confirmed by judgments FAC . CARDINAL of DATE and DATE of DATE .

In judgment no . CARDINAL of DATE , ORG held that the loss sustained by the landlord could be proved simply by a request for a higher rent , determined on the basis of the amount that he could have charged on the free market .

Lastly , in judgment no . DATE of DATE , ORG laid down the principle that the tenant is considered to have been given notice to quit as soon as the lease agreement expires , regardless of the eviction date set by the judge .

In judgment no . CARDINAL of CARDINAL DATE ORG ruled on the issue of police assistance .

That judgment was given in a case arising from a claim for compensation lodged by a number of landlords against ORG in DATE .

In particular , they were claiming reimbursement for losses sustained as a result of a delay in recovering their property that was attributable , in their view , to the fact that they had not been provided with police assistance .

A bailiff had made CARDINAL attempts to gain access and CARDINAL of them were unsuccessful . According to the landlords , CARDINAL of those attempts were made during periods when evictions were subject to legislative suspension .

In the other CARDINAL cases , the claimants asserted that the authorities had not provided evidence of any force majeure that made it absolutely impossible for them to grant the necessary police assistance .

At first instance ORG found in favour of the claimants and awarded them the sum of MONEY ( MONEY ) in compensation . The Ministry appealed and the judgment was set aside by ORG on the ground that , in view of the public policy imperatives cited by the authorities , the claimants had not provided evidence to show that the refusal to grant police assistance was unjustified . The claimants appealed on points of law .

ORG observed that , in judgment no . CARDINAL of DATE , sitting in plenary , it had laid down the principle that a landlord who has obtained an enforceable judgment in his favour is entitled to apply to the authorities for any acts required for the purpose of enforcement , including police assistance . It was thus an obligation rather than a discretionary power of the authorities .

ORG further observed that , in judgment no . CARDINAL of CARDINAL DATE , sitting in plenary , it had held that as a consequence of that principle any inability of the authorities to comply with their obligation should be subjected to a stringent test . In particular , the question whether the police authority had legitimately refused to provide assistance on DATE and at the time indicated by the bailiff was to be assessed by taking into account whether any alternative time , or even date , had been proposed , and if any reasons had been given , in each specific case , to justify the refusal .

The Court of Cassation moreover stated that the police authority enjoyed a margin of discretion as to the actual time when its assistance was to be allocated .

Except where the inability to comply is caused by force majeure , if the competent authority refuses to grant such resources in spite of a request from a bailiff , the landlord should be entitled to lodge a claim with the ordinary courts seeking compensation from the authorities for the loss sustained as a result of the refusal .

ORG reiterated the principle set out in judgments nos . CARDINAL and DATE of CARDINAL DATE that reparation in the form of compensation was the minimum guarantee necessary to uphold an impaired right in cases where the resulting damage interfered with an interest protected by LAW . It held that the right to execution of the order contained in an enforceable judgment had to be regarded as such a right , because the possibility for a person to bring legal proceedings seeking the protection of his or her rights extended to the enforcement of final and binding judicial decisions .

ORG quashed the judgment of ORG and referred it back to the lower courts for reconsideration . It stated as a matter of principle that , when compensation claims were brought against public authorities by landlords complaining of damage because an eviction order had not been executed or its execution had been delayed , it was for the authorities to prove that they had been prevented from allocating police assistance . Such a defence would only release the authorities from responsibility , in particular , if it arose from extraordinary and unforeseeable imperatives . In this connection , ORG emphasised that any permanent crisis situations , such as those affecting the judicial system or public authorities , did not preclude responsibility for damage caused to individuals , but , on the contrary , might constitute the origin of such responsibility . In particular , the “ crisis ” in the NORP court system had not helped the ORG to avoid a number of unfavourable judgments by ORG for the excessive length of judicial proceedings , and currently did not preclude such findings by domestic courts pursuant to PERSON no . CARDINAL of DATE ( the “ Pinto Act ” ) .


The applicant , PERSON , is a GPE national , who was born in DATE and lives in GPE - upon - GPE . She is represented before the ORG by PERSON , a lawyer practising in GPE - upon - GPE .

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

The applicant has been involved in peaceful protests designed to draw attention to practices carried out at ORG in GPE .

On DATE a ORG interim injunction was obtained against the applicant ( and others ) under section CARDINAL of ORG ( “ the LAW ” ) by the plaintiffs to a civil claim against her , the PERSON family , who lived at the farm . The injunction was granted without the applicant having notice of the application , in her absence and prior to the issue of civil proceedings .

The Order restrained the applicant from pursuing a course of conduct which amounted to harassment of any of the plaintiffs including , in particular , communicating with them or coming onto their farm , the land immediately adjoining their farm or certain parts of a nearby public highway , whether for the purposes of protesting or otherwise . It provided :

“ ( CARDINAL ) This Order prohibits you from doing the acts set out in this Order . You should read it carefully . You are advised to consult your solicitor as soon as possible . You have a right to ask the ORG to vary or discharge this Order .

( CARDINAL ) If you disobey this Order you may be found guilty of ORG and you may be sent to prison or fined and if fined your assets may be seized . ”

It continued further as follows :

“ VARIATION OR DISCHARGE OF THIS ORDER

The Defendant may apply to the ORG at any time to vary or discharge this Order but if he wishes to do so he must first inform ORG in writing TIME beforehand . ”

Thereafter the applicant states that she , acting in person , served a timely defence and a notice of application to have the injunction varied or discharged on both ORG and the plaintiffs’ solicitors . She expected that the court would list the matter thereafter . No such listing and/or hearing had taken place prior to the applicant ’s arrest for the criminal offence of harassment in DATE . The applicant states that subsequent enquiries have revealed that ORG did not have a copy of the application to vary or discharge the injunction on its file and that it appears that the document was lost either in the post or at the ORG office .

The magistrate in her criminal proceedings ( see below ) found as a fact that the applicant had served a timely defence on both the plaintiffs’ solicitors and on the court and had requested the removal of the injunction , but that she was still awaiting a reply and an opportunity to challenge the injunction at the time of her criminal trial .

In DATE the applicant was arrested and charged ( along with CARDINAL others ) with a criminal offence under LAW . The information laid alleged as follows :

“ PERSON , jointly with others DATE at ORG , ORG , GPE pursued a course of conduct which amounted to harassment of PERSON , contrary to section CARDINAL of the Protection from Harassment Act CARDINAL . ”

The applicant was tried by a stipendiary magistrate . Evidence was heard for DATE between DATE and DATE . On DATE , the magistrate acquitted the applicant , holding that , while her course of conduct amounted to harassment and she knew or ought to have known that it did so , it was reasonable in the circumstances . Pursuant to section CARDINAL(CARDINAL)(c ) of the Act , it was a defence for the defendant to show that in the particular circumstances the pursuit of the course of conduct was reasonable . In considering whether to regard the applicant ’s behaviour as reasonable , the magistrate balanced the “ highly valued and protected ” right to protest against the effect of the protests on the occupants of the farm . He continued :

“ ... there has been in the evidence no suggestion of violence and not more than the smallest hint of possible damage and abusive language .

Even in the case of DATE I am far from certain about the value of the evidence . What I have heard and been impressed by is that all of them [ the Defendants ] , and PERSON in particular , have gone out of their way to avoid such behaviour and have indeed counselled others against it .

What all this amounts to is that I am satisfied that the purpose of the protest and the way in which these CARDINAL pursued it was reasonable and I therefore dismiss all the charges against them . ”

The Director of Public Prosecutions appealed by way of case stated to ORG . ORG was required to answer the following question :

“ Whether as a matter of law the course of conduct pursued by the defendant PERSON could have been deemed to be reasonable having regard to the fact that the course of conduct was in breach of the terms of ORG injunction served on the defendant PERSON on DATE . ”

ORG answered the above question in the negative ( R v. ORG , ex parte PERSON and others , DATE , case no . CO/CARDINAL/CARDINAL [ “ ex parte PERSON ” ] ) . It considered that on the basis that the conduct in question did amount to harassment and was in breach of the injunction , it was not open to the applicant on the facts as found to establish that she had a defence of reasonableness within section CARDINAL(CARDINAL)(c ) of the LAW . Mr Justice PERSON stated that :

“ ... The injunction , if granted , must be obeyed , and unless and until it is set aside , it binds the party in question . It can not be right for an individual to say to him or herself , that he or she will ignore the terms of the injunction because he or she believes that the conduct in question is reasonable .

The course that must be adopted is to apply to set the injunction aside . The judge will then decide whether the conduct is reasonable , or should be prevented . He will carry out the balancing exercise . But , as it seems to me , it is incumbent upon a magistrate , faced with an injunction , to accept that it means that the defendant is unable to discharge the burden placed upon him by the LAW of establishing that the conduct was reasonable .

For my part , I find it quite impossible to accept that it can be reasonable to pursue a course of conduct in breach of an injunction which is designed to stop such conduct . ”

In a concurring judgment , Lord Justice PERSON stated :

“ It is , in my opinion , to be presumed that the injunction , although ex parte and interim , has been obtained properly , and it is to be obeyed until it expires , or is set aside or varied by ORG . A person who is aware that he or she is subject to an injunction , made by ORG , and who can apply to set it aside or to vary it , can not be conducting him or herself reasonably if he or she deliberately and without reasonable excuse breaks the terms of the injunction .

Miss PERSON was in breach of the injunction in CARDINAL respects . She was upon the road outside the farm ... and she on occasions trespassed on the Harrisons’ land .

The particular circumstances , against which the reasonableness of that course of conduct had to be measured , included the existence of the High Court order . There was no justification put forward by Miss PERSON either before the stipendiary magistrate or before this Court , for her disobeying the order of ORG ...

What is certain , in my judgment , is that conduct which flouts a ORG order can not be reasonable unless there exists a wholly exceptional excuse for doing so , such as the instance put forward by Mr. PERSON during argument , that it is necessary to go into a prohibited area to rescue someone who is in imminent danger . Any other view could lead to inconsistent conclusions being reached by the GPE court and ORG ; a most undesirable result . ”

While not necessary for the determination of the point in issue , during the course of his judgment , Mr ORG also referred to the additional defence that the applicant had run under section CARDINAL ) of the LAW ( that she had pursued her course of conduct for the purpose of preventing or detecting crime ) and observed that :

“ ... I find it difficult to see how a protest of this sort , carried on over a lengthy period of time , could be said to have been pursued for the purpose of detecting or preventing crime . It is no crime to run a mink farm and as the magistrate found , there was never any evidence of breaches of any regulations covering the manner in which the minks had to be kept . ”

ORG directed the GPE court to proceed in the light of its judgment .

The applicant thereafter applied to ORG for leave to present a petition of appeal to ORG and for certification of the following point of law as CARDINAL of general public importance :

“ Whether conduct which is in breach of an injunction imposed in civil proceedings is capable of being reasonable under section CARDINAL(CARDINAL)(c ) of ORG . ”

On DATE , the ORG certified the point of law as being CARDINAL of general public importance . However , it refused the applicant ’s application for leave to present a petition of appeal to ORG .

On DATE , the applicant was granted legal aid to pursue a petition of appeal to ORG . However , she was advised by both leading and junior counsel in conference on DATE , and in a subsequent written opinion by junior counsel on DATE , that her appeal had little prospect of success . Indeed , in that written opinion counsel stated that she was “ quite certain that ORG would not grant leave ” . The applicant was then informed by her solicitors that her legal aid would be discharged , which occurred subsequently . The applicant thereafter instructed a new firm of solicitors on a pro bono basis to seek a further opinion from counsel regarding a potential appeal to ORG . A further experienced barrister advised by telephone on DATE that a petition to ORG would be unlikely to be successful . She had , in fact , also previously received advice to the same effect on DATE from the barrister who represented her in ORG . This avenue of appeal was therefore not pursued .

On DATE , as a result of the judgment of ORG , the applicant was convicted by the stipendiary magistrate . She was sentenced to an absolute discharge and an indefinite restraining order under LAW , which read as follows :

“ CARDINAL ) The Defendant is prohibited from assaulting , molesting , harassing , threatening , pestering or otherwise interfering with Mr. PERSON , his children or members of his family , Mrs. PERSON , Mrs. PERSON and PERSON , by doing acts to cause them , their servants , agents , employees or customers harm whether directly or indirectly .

CARDINAL ) The Defendant is prohibited from making any communication to Mr. PERSON , his family , servants , agents , employees or customers whether in writing or orally , whether by telephone or otherwise .

CARDINAL ) The Defendant is prohibited from entering upon the land of PERSON at ORG , ORG , GPE , or travelling within QUANTITY thereof . ”

On DATE , the applicant applied to ORG for leave to appeal , out of time , against the magistrate ’s decision to convict and sentence her . This application was rejected by ORG on DATE .

On DATE , the applicant , acting in person , applied to ORG for permission to seek judicial review of ORG decision . Permission was granted on DATE . At the full hearing on DATE , ORG decision was quashed ( R v. ORG , ex parte PERSON , DATE , case no . CO/CARDINAL/CARDINAL ) . Permission to appeal out of time was granted in relation to the applicant ’s submissions concerning the defence which she had raised under section CARDINAL ) of the Act at the GPE court trial , namely that she pursued her course of conduct for the purpose of preventing or detecting crime . She argued that it was her co - defendants who were primarily running the defence of reasonable conduct under section CARDINAL(CARDINAL)(c ) and that the magistrate effectively “ rolled up ” the defences that were being put forward under subsection ( CARDINAL ) of LAW , without specifically differentiating between the evidence which was being put forward on behalf of her co - defendants and her own evidence .

ORG held that although ORG in ex parte PERSON had ruled that her reasonableness defence under section CARDINAL(CARDINAL)(c ) of the LAW had been determined against her by the existence of the injunction , it was still open to the applicant to argue before ORG that her actions were lawful under section CARDINAL ) of the LAW . Lord Justice PERSON stated :

“ ... the judge was wrong to conclude that ORG decision in any way precluded the applicant either as a matter of law from seeking to pursue her defence under section CARDINAL ) , or in any way , insofar as he sought to do so , concluding that on the merits there was no basis upon which it could properly be said that there was material which could found such a defence . The applicant had put before him arguments which indicated that she had been seeking to obtain evidence or other material which would affect the regulatory or prosecuting authorities based upon her assertion that criminal activity was taking place at the mink farm . She may or may not , at DATE , on the facts be able to establish her case , because the burden of proof will be on her ; and , in particular , she will have the difficulty , if she is to succeed , of having to establish that the purpose of her activities was for preventing or detecting crime ... Those will be issues which are properly issues to be determined on the basis of proper conclusions on the facts after the hearing of evidence . It seems to me that nothing that was decided by ORG can impinge upon the applicant ’s right to have those issues properly so resolved . ” ( [ DATE ] ORG ADMIN CARDINAL at paragraph CARDINAL )

Thereafter , the appeal in ORG was listed for DATE . However , by letter of DATE the applicant informed ORG that she wished to abandon the appeal for medical reasons .

Section CARDINAL of the LAW creates a general prohibition on harassment as defined in that section , subject to certain exceptions , stating in its material part :

“ ( CARDINAL ) A person must not pursue a course of conduct –

( a ) which amounts to harassment of another , and

( b ) which he knows or ought to know amounts to harassment of the other . ...

( CARDINAL ) Subsection ( CARDINAL ) does not apply to a course of conduct if the person who pursued it shows –

( a ) that it was pursued for the purpose of preventing or detecting crime , [ or ] ...

( c ) that in the particular circumstances the pursuit of the course of conduct was reasonable . ”

Non - compliance with LAW can give rise to criminal ( section CARDINAL ) and civil ( section CARDINAL ) liability .

Section CARDINAL of the LAW states in its material part :

“ ( CARDINAL ) A person who pursues a course of conduct in breach of LAW is guilty of an offence . ”

“ ( CARDINAL ) An actual or apprehended breach of LAW may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question . ”

The availability of a civil remedy enables injunctions to be granted during the course of civil proceedings . A civil cause of action must exist before an injunction can be granted .

The breach of any injunction can give rise to civil committal proceedings . At any such proceedings the court has the power to commit a person who is found to be in breach of the injunction to prison .

Sections CARDINAL(CARDINAL ) to CARDINAL(CARDINAL ) of the Act make provision for the procedures that can be taken and the sanctions which can be imposed if a civil injunction is breached . Its provisions , while drafted at the time of the commencement of the LAW on DATE , only took effect as from DATE . These provisions were therefore not in force at the time that the applicant was charged under LAW . The provisions read , in relevant part :

“ ( CARDINAL ) Where –

( a ) in [ civil ] proceedings ORG or a county court grants an injunction for the purpose of restraining the defendant from pursuing any conduct which amounts to harassment , and

( b ) the plaintiff considers that the defendant has done anything which he is prohibited from doing by the injunction ,

the plaintiff may apply for the issue of a warrant for the arrest of the defendant . ...

( CARDINAL ) The judge or district judge to whom an application under subsection ( CARDINAL ) is made may only issue a warrant if -

( a ) the application is substantiated on oath , and

( b ) the judge or district judge has reasonable grounds for believing that the defendant has done anything which he is prohibited from doing by the injunction .

( CARDINAL ) Where –

( a ) the High Court or a county court grants an injunction for the purpose mentioned in subsection ( CARDINAL)(a ) , and

( b ) without reasonable excuse the defendant does anything which he is prohibited from doing by the injunction ,

he is guilty of an offence . ”

Section CARDINAL of the LAW enables a court sentencing a person who commits a criminal offence under LAW to impose a restraining order upon that person . This is an order prohibiting the defendant from doing anything which is set out in the order . By virtue of section CARDINAL(CARDINAL ) , the prosecutor , the defendant or any other person mentioned in the order may apply to the court which made it for it to be varied or discharged by a further order .

Section CARDINAL(CARDINAL ) states :

“ If without reasonable excuse the defendant does anything which he is prohibited from doing by an order under this section , he is guilty of an offence . ”

By section CARDINAL(CARDINAL ) , a person guilty of an offence under section CARDINAL(CARDINAL ) can be sentenced on conviction on indictment to imprisonment for a term of DATE , or a fine , or both , or , on summary conviction , to imprisonment for a term not exceeding six months , or a fine not exceeding the statutory maximum , or both .

ORG in this case , ex parte PERSON , held , as set out in the above facts , that the course of conduct pursued by the applicant could not be deemed to be reasonable having regard to the fact that it was in breach of the terms of a ORG order .