CASE OF TV VEST AS AND ROGALAND PENSJONISTPARTI v. NORWAY (extracts)

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

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The first applicant , TV Vest AS ( Ltd. ) , is a television broadcasting company located in GPE in GPE , on the west coast of GPE . The second applicant , PERSON , is the regional branch of the ORG , which will be referred to hereinafter as “ the ORG ” . This is a small political party , which , in the local and regional elections held on DATE , obtained PERCENT of the votes nationally , while the ORG branch obtained PERCENT of the votes in ORG .

With a view to the above - mentioned elections the ORG asked to purchase advertising time from TV Vest in order to broadcast political advertisements . In DATE , considering that the broadcast would be lawful , agreed to broadcast CARDINAL different advertisements , with a duration of TIME each , CARDINAL times per day over DATE during the period from DATE to CARDINAL DATE , and for which the ORG would pay a fee of MONEY ( ORG ) . The short broadcasts sought to portray the values of ORG and encouraged viewers to vote for them :

Advertising film CARDINAL :

PERSON , ORG : “ We want this splendid property here to be given back to the people of GPE and ORG as a specialised hospital for the elderly and chronically ill . Vote for ORG . ”

Picture with text :

“ We need your vote on DATE ! Vote for ORG . ”

Advertising film CARDINAL :

ORG , ORG : “ Young people are our future . Some of them live in difficult circumstances and need help and support . If they do not receive the assistance they require , it may have major consequences for us all . Vote for ORG for a better future . ”

Picture with text :

Advertising film CARDINAL :

PERSON , ORG : “ A sufficient number of good nursing home places . ORG jobs , particularly for older workers , and decent pension schemes . If you are interested in any of this , vote for ORG . ”

Picture with text :

On DATE the first applicant notified ORG ( ORG medieforvaltning – the “ ORG ” ) of its intention to broadcast the political advertisements and argued that such broadcasting was protected by LAW .

The first applicant broadcast the political advertisements on DATE , DATE , DATE , DATE , DATE and DATE and on CARDINAL , DATE , DATE and DATE . According to a public statement by the second applicant dated DATE , although it had been made aware of the statutory prohibition of political advertising on television , it had nonetheless decided to advertise for a number of reasons :

“ ORG in ORG has found it difficult to gain the attention of the media . We regard this as a ' golden opportunity ' to highlight the party 's values and political priorities .

The bigger parties are given very wide leeway in connection both with debates and with various initiatives in radio , television and the press . In this regard , the ORG often feels excluded and has very limited opportunities to make itself heard .

In addition , the ORG is never identified in national or local opinion polls , but is included in the group ' Others ' .

We in the ORG took responsibility for the content of the messages and chose CARDINAL themes which best reflected the ORG 's values and basic attitudes at local level ... ” .

On DATE ORG warned TV Vest that they were considering issuing a fine against the company for violating the ban on political advertising on television . TV Vest answered the letter on DATE .

On DATE ORG decided to impose a fine of ORG CARDINAL,CARDINAL on TV Vest , under section CARDINAL of LAW DATE and section CARDINAL of LAW , for violation of the prohibition on political advertising in television broadcasts as provided in section QUANTITY ) of the LAW .

The applicants provided the following information on the extent to which ORG had been the subject of editorial coverage during the period DATE by the CARDINAL broadcasters indicated below :

( i ) TVCARDINAL ( privately owned broadcasting company ) had informed them that in the course of DATE ORG as such had been given editorial coverage on CARDINAL occasions : once when TV Vest had brought an action against ORG to challenge the legality of the fine imposed for the broadcasting of the political advertisements at issue ; a second time concerning the party 's electoral list cooperation with CARDINAL other small parties ; and lastly in connection with the actual election results . In none of these instances had the local ORG been specifically mentioned .

( ii ) The ORG ( “ ORG ” , national public broadcaster ) had stated that there were CARDINAL short items ( studio comments ) that had been broadcast during the election campaign period , respectively on DATE and DATE , both of which had concerned the issue in the present case of political advertising .

( iii ) TV Vest had informed them that ORG had been referred to CARDINAL times : on DATE when the decision to air the advertisement at issue had been taken , on DATE in connection with notification of the ORG 's reaction against these advertisements , and on DATE regarding the actual fee . None of the said items had been full features and none of them had focused on ORG politics .

TV Vest appealed against the decision of DATE to ORG ( GPE tingrett ) . TV Vest did not dispute that the content was political advertising and thus fell foul of the above - mentioned prohibition in LAW but submitted that this provision was incompatible with the right to freedom of expression in LAW .

By a judgment of DATE ORG upheld ORG decision .

TV Vest appealed against ORG judgment to ORG ( PERSON ) , challenging its application of the law . ORG granted leave to appeal under LAW ) of LAW . The second applicant acted as a third - party intervener ( hjelpeintervenient ) .

In a judgment of CARDINAL DATE ORG , by CARDINAL votes to CARDINAL , upheld ORG decision .

In his opinion , to which CARDINAL other members subscribed , Mr Justice PERSON disagreed with the first applicant 's submission that the case raised an issue at the heart of freedom of expression . The most central aspect of the case was that the legislature had addressed certain issues for the democratic process concerning the limits to be imposed on the use of television for paid communication in the course of a political debate . Thus there was stronger reason to emphasise the legislature 's intention in this area than to dwell on the protection of the content in question . The political bodies were better placed than the courts to assess what measures were suitable for heightening the level of political debate . The rationale for the prohibition of political advertising on television was that it was likely to lead to an inappropriate form of political debate . An advertisement containing a political message could easily give a distorted picture of complex issues . Opening the possibilities for such advertisements would mean that financially powerful groups would have greater opportunities for marketing their opinions than less resourceful parties or interest organisations .

Thus , Mr Justice PERSON observed , concerns about quality and pluralism in political debate were central and formed the basis of the national courts ' assessment . It was not the content but the form and medium of the expression that was being regulated and ORG , like other parties , had many other means for addressing the electorate . There was hardly any reason to consider that the prohibition in section QUANTITY ) of LAW was incompatible with freedom of expression as protected by LAW either in its version as applicable at the material time or in its amended version of DATE .

As regards the issue of necessity under LAW Broch had particular regard to the ORG 's judgments in PERSON gegen PERSON v. GPE ( no . CARDINAL , ORG CARDINALVI ) and PERSON v. PERSON ( no . CARDINAL , ORG CARDINALIX ) , concerning restrictions on political broadcasts relating respectively to animal protection and to the rearing of animals ( on television ) and to the promotion of religious gatherings ( on the radio ) . Mr Justice PERSON found , inter alia , as follows :

“ ( CARDINAL ) In the light of these QUANTITY judgments , how should we assess the NORP prohibition of political advertising on television ? Neither of the cases is completely parallel to the situation now at hand . The main difference from the PERSON case is that the latter concerned a group DATE ORG which focused on a topic of current interest : the protection of animals in connection with the industrial production of meat . The association wished to participate in the debate on this issue by showing a film . In this respect , there is a greater parallel between ORG and the case of PERSON v. GPE in terms of its wish to make its existence and manifesto known to a broad public . What distinguishes the present case from the PERSON case is the fact that religious issues in GPE must be regarded as far more controversial and could presumably cause greater social unrest than political movements in GPE . Having said this , however , I find a considerable degree of parallelism between the ORG 's arguments in PERSON and my own views on the NORP prohibition in relation to LAW .

( CARDINAL ) A decisive difference in the ORG 's approach between the CARDINAL cases is that in the PERSON case the ORG found that the ORG 's margin of appreciation was narrow , whereas its margin of appreciation in the PERSON case was broad . A factor that was emphasised in the PERSON case , and that also applies in our case , is that there is no NORP consensus on political advertising . There are major differences in the rules currently in force in NORP countries . There is a group of countries , including GPE , GPE , GPE , GPE , GPE and GPE , which have prohibited political advertising to varying degrees . Other countries , such as GPE , GPE , GPE , GPE , GPE and GPE , basically have no such barrier . This difference has a further dimension in that the rules in many countries now appear to be undergoing revision . But the draft amendments point in different directions , thereby underscoring the diversity of views . In some countries , the rules are being liberalised , while other countries , like GPE , are tightening the prohibitions that already exist . In GPE , the Government has announced its intention to present a PERSON under which political advertising will be accepted within certain limits . At the same time , we have seen that the right to continue to impose a prohibition is being maintained through the amendment to LAW . In other words , the rules governing political advertising are subject to constant change , which should mean that States have considerable freedom to choose their own form of regulation .

( CARDINAL ) The type of interference concerned in this case also suggests a broad margin of appreciation . The regulation of political advertising is less a question of the individual 's freedom of expression and far more a question of how best to promote political debate and ensure good frameworks for the democratic electoral process . In this light , our political bodies have – hitherto – deemed that political advertising on television promotes an unfavourable simplification of political issues , as well as giving financially powerful groups a greater opportunity to put forward their views . These considerations have a direct bearing on the desire to ensure quality in the political process . In this area , it is essential that institutions vested with democratic legitimacy be given a broad margin of appreciation based on their assessment of national conditions . ORG 's evaluation as regards expediency should be applied unless – as stated in the PERSON case – it appears to be unfounded or otherwise objectively weak . On the other hand , this limitation is important , and particularly in the present case , which has to do with a majority in ORG determining the general conditions for political debate . This means that the courts should give particularly close consideration to whether the solution has a discriminatory effect . In the present case , the grounds cited by ORG in support of the prohibition of advertising can not be said to be of a discriminatory nature . On the contrary , it is argued that political advertising will give large , affluent parties a further advantage to the detriment of small parties .

( CARDINAL ) In assessing the specific circumstances of the present case , questions can nevertheless be raised as regards the significance that should be attached to the fact that ORG , far from having the financial strength to abuse the power of advertising , on the contrary and unlike the more established parties , believed that it needed the advertising precisely to be able to establish a channel to a broad public during the period prior to the municipal elections . Even if this point of view is accepted per se , in my opinion no importance can be placed on it in assessing the prohibition of advertising in relation to LAW . The reason for this is that it is not democratically possible to differentiate between the various political parties – least of all just before an election . And if our basic premise is that all political parties must be treated alike with regard to paid television advertising , the possibility of small parties being overshadowed by large ones can not be excluded .

( CARDINAL ) I have mentioned that there currently appears to be a majority in ORG in favour of relaxing the prohibition of advertising , that solutions in NORP countries vary and that in many countries the attitude towards political advertising is now being reassessed – with differing results . I have underscored this very situation as an argument in support of allowing GPE a broad margin of appreciation . Now one might ask whether the change in the ORG majority 's political views on the prohibition of advertising entails that neither the will of the legislature nor the democratic roots of the statute can militate any longer in favour of maintaining the current statutory prohibition on the basis of a broad margin of appreciation . In my opinion , this can not be the case . It would mean that the legislature had renounced its margin of appreciation despite clear statements to the effect that it did not wish to bind future developments to a specific solution .

( CARDINAL ) In sum , therefore , it is my view that a prohibition or regulation of political advertising on television must primarily be seen as the establishment of limits for political debate . These are decisions that should be taken by a country 's democratic institutions , and consequently an area in which a country 's political bodies must be given great freedom of action in relation to LAW . The fact that there is no NORP consensus , but on the contrary a wide range of national solutions in this field , strengthens this view .

( CARDINAL ) In view of all the channels that political parties can use to communicate their message to a broad public , the prohibition of political advertising on television appears to be a limited interference that is not disproportionate to the purposes the interference aims to achieve . In this light , the grounds underlying the provision in section QUANTITY ) of LAW are relevant and sufficient . If the special circumstances of the present case are examined more closely , this becomes even clearer . The prohibition of advertising was applied to a political party immediately prior to an election . At such a time , it is particularly important to ensure a ' fair climate of debate ' , and some countries have limited their ban on advertising precisely to this period . The possibility that a broad interpretation of the prohibition of political advertising on television may conflict with LAW , as illustrated by the ORG 's PERSON judgment , is , in my opinion , of no significance for the application of LAW to the facts of our case , which lies within the core area of the prohibition .

( CARDINAL ) In the light of the foregoing , it is my view that there has been no violation of LAW . ”

The dissenting judge , Mr Justice PERSON , stated :

“ ( CARDINAL ) ... I have concluded that ORG administrative decision to impose a fine on TV Vest is an unlawful interference with the right to freedom of expression under LAW , and that the appeal by ORG must therefore be allowed . ...

( CARDINAL ) In deciding whether there is a sufficiently pressing need for interference in the right to freedom of expression , the ORG has granted national authorities and courts a certain margin of appreciation . The reason for this is that national authorities and courts will often be in a better position to assess the necessity of an interference and have greater insight into any special circumstances that might apply in the individual countries , and the fact that it is GPE Parties to the Convention that have the primary responsibility for protecting and enforcing human rights ( see PERSON . : ORG med kommentarer [ LAW with comments ] , CARDINALnd edition ( DATE ) , p. CARDINAL , and ORG : PERSON of ORG ( DATE ) , p. CARDINAL ) . The part of the grounds that states that national authorities will often be in a better position to assess the necessity of an interference also applies , by and large , to the relationship between national courts of law and national legislatures , and against this background the principle has been adopted in NORP case - law that when NORP courts examine the question whether NORP legislation breaches international human rights conventions , they should accord the NORP legislature a similar margin of appreciation , see for example PERSON ( “ FAC ) DATE - CARDINAL . This is not necessary for the purposes of the Convention ; nor does the LAW preclude it . As mentioned earlier , however , freedom of expression is one of the fundamental pillars of democracy , and it is therefore important that small political groups are also able to make themselves heard . For this reason , strong objections are raised against attaching too much importance to the opinion of the political majority at any given time as regards how far freedom of expression on political issues should go . The ORG 's case - law is also based on the idea that GPE ' margin of appreciation is relatively narrow in cases regarding expressions of political opinion ; see PERSON , § DATE , and PERSON , § CARDINAL . ....

( DATE ) The main grounds for LAW prohibition of political advertising on television is that if such advertising were to be permitted , it could result in financially powerful groups having a greater opportunity than others to disseminate their views to the detriment of parties and special - interest organisations with fewer resources , thereby impairing democratic equality , and in the expression of political opinions through advertising easily becoming sloganised and manipulative and leading to an unfavourable form of debate . The prohibition has been limited to television because this medium is presumed to be particularly effective and to have a greater ability to influence the public than other media ( see ORG . DATE ) to the PERSON [ the larger division of ORG ] , p. CARDINAL ) .

( CARDINAL ) The reasons cited for not allowing political advertising on television are legitimate in relation to LAW ( ' protect the rights ... of others ' ) , but as the appellant has forcefully argued , there are also weighty arguments in favour of permitting such advertising . Editorial television broadcasts can easily become dominated by the most influential political parties . Smaller parties do not have the same possibilities of making themselves seen and heard . Allowing advertising for political parties would also help to promote direct communication with the voters – without the filtering that takes place through the media 's editorial staff . This is a consideration that is heavily emphasised by ORG on Freedom of Expression in PERSON ( “ NOU ” Official NORP Report ) CARDINAL:CARDINAL , pp . CARDINAL - CARDINAL . It is pointed out in the report that complaints that the media to a certain extent ' set the agenda ' appear to be justified , and that as a result of the filtering that takes place through the media 's editorial processes , the political parties must adopt a strategic approach to the media to ensure that their message is communicated . This situation has been accentuated by the fact that television , which for many reasons must be more ' toughly edited ' than newspapers , has become the dominant vector for the general public .

( CARDINAL ) With regard to the argument concerning the form of debate , the fact is that the medium of television has contributed towards making political debate more slogan - oriented and agitational , and as ORG points out , it is doubtful whether allowing political television advertising will change the character of political communication to any appreciable degree ( see Official NORP Report PERSON CARDINAL:CARDINAL , p. CARDINAL ) . The eventuality that financially powerful groups might dominate political debate on television , and that the latter might become overly characterised by slogans and trivialised can be counteracted in other ways , for instance by limiting the extent of , and broadcast time for , political advertising on television . As the Commission pointed out , in a NORP society it is not necessarily illegitimate to appeal to feelings .

( CARDINAL ) In my opinion , in the light of the above , there can not be deemed to be a sufficiently pressing social need for a total prohibition of political advertising on television . A total ban is not proportionate to the purposes sought to be achieved . Even if the reasons advanced in support of prohibiting such advertising are legitimate , they are not sufficiently weighty to justify a total ban .

( CARDINAL ) The fact that a total prohibition on political advertising on television is incompatible with LAW is , in my opinion , also evident from the ORG 's judgment in the case of PERSON v. GPE . In paragraph CARDINAL of this judgment the ORG states that it can not exclude that a ban on political advertising may be compatible with LAW in certain situations . However , the ORG pointed out that in order for such a prohibition to be acceptable , it must be based on grounds that meet the requirements set out in paragraph CARDINAL of Article CARDINAL . The case in question concerned a ban on political advertising on radio and television . In paragraph CARDINAL the ORG points out that a prohibition of political advertising that is limited to certain media does not appear to be of a particularly pressing nature .

( CARDINAL ) As the first voting judge has mentioned , the PERSON case concerns a television advertising campaign presented by an animal protection organisation , and the ORG has asserted that the judgment must be deemed to be limited to idealistic advertising , in opposition to commercial advertising , and that the scope of the judgment has in any event been narrowed down by the PERSON judgment . I disagree with these arguments . The grounds in paragraph CARDINAL of the PERSON judgment concern political advertising in general , and there are no grounds for contending that it is limited to idealistic counter - advertising against commercial advertising . Nor are there any grounds in the PERSON judgment for arguing that it aims to deviate from or limit the scope of the PERSON judgment . On the contrary , in paragraph CARDINAL of the PERSON judgment , it is emphasised that as far as political speech or debate of questions of general interest are concerned , there is little scope for restrictions under paragraph CARDINAL of Article CARDINAL . When the ORG concluded in the PERSON judgment that there was no violation of Article CARDINAL , this was based on the explicit grounds that the PERSON case DATE contrary to the case of VgT – concerned the expression of religious beliefs , and that in such cases national GPE should have a greater margin of appreciation ( see paragraph CARDINAL of the PERSON judgment ) . Reference was made in the specific grounds to the extreme sensitivity of the question of broadcasting of religious advertising in GPE ( paragraph CARDINAL ) . PERSON as the Court in PERSON accentuates the difference between political and religious advertising , and underscores the special considerations that apply in the case of the expression of religious beliefs in GPE , the PERSON judgment in my opinion serves not to weaken , but to strengthen and further underpin the view regarding political advertising on television expressed by the ORG in the PERSON judgment .

( CARDINAL ) In paragraph CARDINAL of PERSON , the ORG emphasised that the animal protection association , which was the applicant in the case concerned , was not a financially powerful group , and this argument has been invoked by the appellant in respect of ORG . However , as I pointed out earlier , I do not believe that the arguments justifying the legal basis for interference necessarily apply in full to the present case . In my opinion , it would be totally unacceptable if the right of political parties to use television advertising were to depend on the financial situation of the individual parties .

( DATE ) On the other hand , when assessing whether there is a sufficiently pressing social need for a total prohibition of political advertising on television , great importance must in my opinion be attached to the fact that , in connection with the amendment of LAW in DATE , the majority in ORG 's ORG was in favour of abolishing the current total prohibition and instead introducing regulating restrictions . ...

( CARDINAL ) ... TV Vest has argued that a total prohibition of televised political advertising will be contrary to LAW , as it reads following the constitutional amendment adopted on DATE . I see no reason to address this question , as it appears to be somewhat unclear whether the majority in ORG considered that the right to political advertising on television derived from the new LAW , or whether such a right had to be enacted first . In relation to the question whether a total prohibition of political advertising on television is compatible with LAW , however , the position taken by the majority in ORG , in connection with the constitutional amendment , is of considerable interest , in any event . Since the majority in ORG found the current total prohibition of televised political advertising to be ' unfortunate from the point of view of freedom of expression ' and in the underlying grounds overruled the main arguments that were adduced in support of the prohibition at the time it was adopted , I can not see that it can be claimed with any particular degree of credibility that there is such a pressing social need for such a prohibition that it can be accepted as compatible with paragraph CARDINAL of Article CARDINAL . In this connection , I find it necessary to emphasise that the change in the NORP majority 's attitude was not caused by changes in society , but is solely due to the fact that the majority has realised that there is no sufficiently pressing social need for such interference with the right to freedom of expression .

( CARDINAL ) ORG administrative decision of DATE to impose a fine on TV Vest was taken under section QUANTITY ) ( see also section CARDINAL ) of LAW . The advertisements concerned in this case were aired during the election campaign for municipal and county elections in DATE . I see no reason to address the question whether prohibiting political advertising on television during election campaigns is compatible with paragraph CARDINAL of LAW . The norm that constitutes the legal basis for the administrative decision of ORG contains a total prohibition of political advertising on television . As PERSON . ( op . cit . p. CARDINAL ) points out , when examining the question whether an interference in the exercise of a human right is compatible with the Convention , it is necessary to ' assess whether the national legal basis meets the human rights requirements as regards quality of law in relation to the powers of interference that derive from the LAW and the ORG 's case - law ' . When examining the question whether the national norm that provides legal authority for interference satisfies the requirements set out in the ORG , the question whether the national legal authority for interference is circumscribed sufficiently narrowly so as to satisfy the requirement of proportionality must also be examined . Since the prohibition of political advertising on television , which constitutes the legal basis for ORG decisions , is not circumscribed sufficiently narrowly so as to satisfy the proportionality requirement set out in paragraph CARDINAL of Article CARDINAL , the decision that was made pursuant to this provision must , in my opinion , be found to conflict with the Convention , even though the LAW might authorise the prohibition of political advertising on television during an election campaign . If the NORP legislature should wish to have such a prohibition , it would in such cases have to be the subject of special consideration , and relevant , sufficiently weighty and convincing grounds would have to be provided . The grounds adduced by the legislature for the existing total prohibition can not justify a limited prohibition of this nature .

( DATE ) On this basis it is my conclusion that ORG administrative decision to impose a fine on ORG is invalid ( see section CARDINAL and also section CARDINAL , of LAW ) . ... ”

Section CARDINAL - CARDINAL(CARDINAL ) of LAW DATE reads :

“ Broadcasters shall not transmit advertisements for life philosophy or political opinions through television . This applies also to teletext . ”

The Government submitted that in DATE ORG had found that an advertisement broadcast by TVCARDINAL for an anti - terrorism group named ORG ( ESAG ) contained a political message which clearly fell within the meaning of LAW ( section LAW ) ) . However , the ORG had concluded that the prohibition could not be enforced because to do so would violate LAW . The ORG distinguished the facts from ORG ruling in the TV Vest case . The ESAG advertisement had to be regarded as a contribution to a general public debate on how to fight terrorism , it had been transmitted outside the election period , and had not been connected to any political party or political organisation , but to a ( social ) interest group . Accordingly , the ORG found more similarities with the ORG 's judgment in the PERSON case and , by applying a narrower margin of appreciation , that the interference could not be said to be necessary for the purposes of LAW .

The respondent Government produced a copy of a survey performed by the ORG of ORG ( “ CARDINALrd EPRA Meeting , GPE , GPE , DATE , Background paper - Plenary , Political advertising : case studies and monitoring ” ) on the basis of answers to a questionnaire , received from the authorities of CARDINAL countries , i.e. , GPE , GPE ( xCARDINAL ) , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE ( xCARDINAL ) , GPE , GPE , GPE , GPE , GPE , GPE , the GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ( xCARDINAL ) . The report included the following observations :

“ • Countries with a ban on paid political advertising

Paid political advertising is statutorily forbidden in the vast majority of NORP countries such as GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , and the GPE . Several countries from central and LOC such as GPE and GPE , also have a prohibition of paid political advertising .

The most traditional justification for this prohibition is that rich or well - established parties would be able to afford significantly more advertising time than new or minority parties – thus amounting to a discriminatory practice . Another rationale invoked for the restriction or the ban is that it may lead to divisiveness in society and give rise to public concern . It has also been suggested , albeit less frequently , that a prohibition would preserve the quality of political debate .

• Countries allowing paid political advertising

Paid political advertising is allowed in many central and ORG countries such as GPE and GPE , GPE , GPE , GPE , GPE , GPE , and GPE : GPE , GPE and GPE . In a few countries such as in GPE ( DATE prior to DATE ) , and GPE , political advertising is only permitted during the election period .

It is often overlooked that several countries in LOC , such as in GPE , GPE , GPE ( for the moment , this will change shortly ) and the GPE also allow paid political advertising .

In GPE , until DATE paid political advertising , i.e. self - managed spaces , was allowed also for national broadcasters , provided that they also transmitted ' political communications spaces ' ( spazi di comunicazione politica ) , i.e. discussion programmes with the participation of political representatives ; now it is allowed only for local broadcasters and has to cost PERCENT of the price applied to commercial advertisements , whereas national broadcasters may only broadcast them for free .

In GPE , while there is a permanent and wide - ranging ban on the political advertisement of persons , paid political advertising of political parties is not prohibited .

In GPE , while the ban of political advertising applies permanently for television broadcasters , the NORP Electoral Code permits paid electoral advertising on commercial radio stations , only during the election period .

The main rationale for paid political advertising is that it may enable new candidates to obtain recognition and a profile . It is also often argued that the right to political advertising is an integral part of the right to freedom of expression and information .

• Countries allocating free airtime for political parties and/or candidates

In the vast majority of countries , such as GPE ( NORP Speaking Community ) , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , parties are usually granted free airtime to present their programmes , sometimes in the format of short advertising spots . The broadcasters are usually reimbursed for their technical costs either by the ORG or directly by the parties .

• Countries with no system of allocation of free airtime .

Several countries have no specific provisions concerning free airtime for political parties . In a few countries , such as GPE ( NORP speaking Community ) , GPE , GPE , GPE , parties are not granted any free airtime to present their programmes . In other countries such as GPE , GPE or GPE , this is a matter left to the broadcasters , who sometimes allow this practice on a voluntary basis . ”

Recommendation No . R ( CARDINAL ) CARDINAL of ORG on measures concerning media coverage of election campaigns provided as follows :

“ In member GPE where political parties and candidates are permitted to buy advertising space for electoral purposes , regulatory frameworks should ensure that :

- the possibility of buying advertising space should be available to all contending parties , and on equal conditions and rates of payment ;

- the public is aware that the message is a paid political advertisement .

Member GPE may consider introducing a provision in their regulatory frameworks to limit the amount of political advertising space which a given party or candidate can purchase . ”

The Explanatory Memorandum to that Recommendation included the following comments in relation to the above :

“ Paid political advertising in the broadcast media has traditionally been prohibited in many ORG member GPE , whilst it has been accepted in others . CARDINAL of its major advantages is the opportunity which it provides for all political forces to widely disseminate their messages / programmes . On the other hand , it may give an unfair advantage to those parties or candidates who can purchase important amounts of airtime .

In view of the different positions on this matter , the ORG does not take a stance on whether this practice should be accepted or not , and simply limits itself to saying that if paid advertising is allowed it should be subject to some minimum rules : one , that equal treatment ( in terms of access and rates ) is given to all parties requesting airtime , and CARDINAL , that the public is aware that the message has been paid for .

It may also be considered important to set limits on the amount of paid advertising that can be purchased by a single party . Nevertheless , the Recommendation does not specify whether it is desirable to do so nor does it set any precise limits on the amount of paid advertising , as it is considered that the decision on this matter should be taken at the national level . ”

ORG , on DATE , adopted recommendation PERSON , which entailed a revision of Recommendation No . R ( CARDINAL ) CARDINAL . In so far as the above provisions were concerned it may be noted that the Draft Explanatory Memorandum ( ( DATE ) CARDINAL add ) included the following addition :

“ DATE . In view of the different positions on this matter , Recommendation CM / Rec(CARDINAL ) ... does not take a stance on whether this practice should be accepted or not , and simply limits itself to saying that if paid advertising is allowed it should be subject to some minimum rules , in particular that equal treatment ( in terms of access and rates ) is given to all parties requesting airtime . ”


Preliminary objection dismissed (six months);No violation of Art. 6

The applicant is a NORP national , born in DATE and resident in GPE , GPE .

On DATE the GPE public prosecutor ’s office preferred a bill of indictment against the applicant , charging him with aggravated embezzlement . The public prosecutor ’s office alleged that DATE and DATE the applicant , then the managing director of a NORP limited liability company ( “ PERSON ” ) , had been involved in a foreign - trade commission - contract between a NORP company and a NORP business partner . According to the public prosecutor ’s office , the applicant had failed to transfer , on behalf of PERSON , part of the amounts due under the contract to the NORP partner and had spent it for PERSON own purposes , thus causing damage of MONEY .

On DATE the ORG convicted the applicant of aggravated embezzlement and sentenced him to DATE and CARDINAL months’ imprisonment and a fine , under LAW and DATE ( a ) of LAW .

ORG found that , in the context of a commission - contract scheme valid DATE and DATE , the applicant , acting on behalf of PERSON , had failed to transfer part of the amounts collected from the NORP partner to the NORP partner , contrary to what he should have done under the contract ; in fact , he had spent it for PERSON own purposes .

ORG noted the applicant ’s defence that he had simply failed to pay the necessary attention to his contractual duty to transfer the amounts in question ; that he had not been aware until DATE that the amounts in question had been available for transfer ; that PERSON subsequent failure to fulfil its contractual obligations had simply been due to its inability to recover some outstanding debts ; and , finally , that he had entered into a verbal agreement with the NORP partner about the use of part of the amounts in question .

However , taking into consideration the testimony of a Mr S. and of CARDINAL further witnesses , ORG was convinced that the applicant had deliberately failed to transfer the amounts in question in order to finance the activities of PERSON .

NORP The applicant appealed against ORG judgment , whereas the public prosecutor ’s office accepted it .

In his appeal the applicant sought to be acquitted on the ground that the findings of fact in his case had been erroneous .

On DATE the ORG upheld the applicant ’s conviction and sentence , but reclassified his offence as aggravated fraud , under LAW and CARDINAL ( a ) of LAW .

ORG held that the facts of the case , as outlined in the bill of indictment and established by ORG , did not constitute the offence of embezzlement . However , ORG was satisfied that the applicant ’s conduct , namely that in the context of the transaction in question he had , on several occasions , given the NORP partner false information about the payments actually made by the NORP partner , had constituted the offence of aggravated fraud .

Completing the findings of fact with some further details , ORG essentially relied on the contents of the case file as compiled at first instance , and in particular on the statements made by the applicant and the witness Mr S. during the first - instance hearings and on investigation documents .

ORG decision was served on the applicant on DATE .

The applicant and his defence counsel lodged a petition for review with ORG . He maintained that he had been convicted erroneously . He also submitted that the reclassification of his offence at second instance had run counter to LAW , and had thus constituted a serious breach of procedural rules .

In its observations in reply , the Attorney - ORG proposed that the decisions of the lower courts be upheld .

On DATE ORG held a “ public session ” ( nyilvános ülés ) in the case . ORG heard addresses by defence counsel , who argued that the applicant ’s liability was of a civil - law nature and requested ORG to quash , under LAW , the first- and second - instance judgments and to acquit the applicant , and by the Attorney - ORG , proposing that the applicant ’s conviction be upheld .

On DATE ORG upheld the applicant ’s conviction for aggravated fraud .

Concerning defence counsel ’s arguments about a serious breach of procedural rules , ORG observed that , while it was true that courts were bound by the factual contents of the bill of indictment , this did not apply to the legal classification of the offences . It held that the elements of fact , which – in the second - instance proceedings – had warranted the reclassification of the offence , had already been contained in substance in the bill of indictment .

In reply to defence counsel ’s arguments of a substantive - law character disputing the applicant ’s conviction of fraud , ORG held that the applicant ’s duty under the contract in question would have been to inform the NORP partner about his receipt of payments without delay . The decision concluded , inter alia , that the applicant , having failed to do so and , instead , having transferred the money into PERSON own bank account ,

“ ... committed the offence of fraud . ...

... In this manner , the defendant secured unlawful gains for PERSON and , to that end , had maintained from the outset [ the NORP partner ’s ] deception , as a consequence of which it suffered damage in the amount of MONEY . This conduct of his constituted the offence of fraud , prohibited by LAW . ”

On that ground , ORG upheld ORG decision , in accordance with LAW .

Article CARDINAL § CARDINAL provides that proceedings before the criminal court may be initiated only upon lawful indictment . The court decides on the criminal responsibility of the indicted person exclusively by reference to facts contained in the bill of indictment .

Article CARDINAL § CARDINAL provides that where there is a strong suspicion , based on the available information , that a person has committed an offence , the authority must inform him of the substance of the suspicion against him and of the relevant laws .

Article CARDINAL § CARDINAL provides that the bill of indictment must contain a brief description of the facts on account of which the defendant is being prosecuted .

Article CARDINAL § CARDINAL requires that documents , the contents of which are regarded by the court as evidence , be read out at the hearing .

According to LAW , the second - instance court must , when passing its decision , rely on the findings of fact reached by the first - instance court , unless the first - instance judgment lacks factual support .

Article CARDINAL provides that a defendant acquitted at first instance may be convicted , or a convicted defendant ’s sentence increased , only if an appeal has been lodged to his detriment . An appeal is to be regarded as being to the defendant ’s detriment if aimed at having him convicted , or convicted of a more serious offence , or at increasing his sentence .

According to LAW ( a ) , where the proper establishment of the facts of the case can be achieved on the basis of the case file , the second - instance court completes or rectifies the establishment of the facts and thereafter examines the first - instance judgment on this new factual basis .

According to LAW , where the first - instance court has applied the law erroneously but its judgment need not be quashed , the second - instance court amends the judgment and passes a decision in accordance with the law .

LAW provides that a final decision is subject to review if :

( a ) the defendant ’s acquittal or conviction , or the discontinuation of the proceedings , has taken place in breach of the provisions of substantive criminal law ; or

( b ) an unlawful punishment or measure has been imposed on the defendant as a consequence of an incorrect classification of the offence or of another breach of the rules of substantive criminal law .

According to paragraph CARDINAL , in the latter case no review may take place if the punishment imposed is within the limits laid down for the offence that corresponds to the classification which is correct in law .

According to LAW ( I ) , a petition for review in favour of the defendant may be filed by , inter alios , the defendant , the public prosecutor or defence counsel .

Paragraph CARDINAL provides a further ground for review where certain serious breaches of procedural criminal law have affected the taking of the decision in question .

Under LAW , if a petition for review is not rejected on formal grounds , it must be sent to the Attorney - ORG for comments .

Article CARDINAL § CARDINAL grants the petitioner the right to submit comments in reply .

According to Article CARDINAL § CARDINAL , the ORG examines , as a general rule , the petition for review at a “ session ” ( ülés ) . The attendance of defence counsel and the public prosecutor is required ; the defendant must be notified of the session and , if detained , must be conveyed thereto .

Article CARDINAL provides that , at the session , CARDINAL of the judges sitting in the case must orally present the petition , the decision challenged and relevant details of the case file . After this introduction , the public prosecutor , defence counsel and the defendant , inter alios , address the court .

As a result of the review , ORG may , under Article CARDINAL § CARDINAL , quash the decision reviewed and instruct the lower - instance court to resume its proceedings .

Under LAW , where the second - instance decision has been taken in breach of the provisions of substantive criminal law within the meaning of LAW , ORG may itself deliver a rectified decision , if this will result in the acquittal of the defendant , the discontinuance of the proceedings , or the imposition of a less severe punishment .

Paragraph CARDINAL provides that if ORG dismisses the petition , it must uphold the decision challenged .

According to LAW , a person who unlawfully appropriates for himself an asset in his charge , or disposes of such an asset as if it were his own , commits the offence of embezzlement . LAW ( a ) provides that embezzlement committed with regard to assets of a substantial value is punishable by DATE imprisonment .

According to LAW , a person who deceives someone , or maintains someone ’s deception , in order to make unlawful gains , commits the offence of fraud , provided that actual damage has occurred as a result of his conduct . LAW ( a ) provides that fraud committed in respect of a substantial sum is punishable by DATE imprisonment .


Violation of Art. 6-1;Violation of Art. 13

The applicant was born in DATE and lives in FAC .

On DATE the applicant was injured in a car accident which occurred when the applicant was at work . The applicant 's 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 NORP tolars ( MONEY – EUR ) for the injuries sustained .

DATE the applicant made CARDINAL requests that a date be set for a hearing .

On DATE he lodged preliminary written submissions .

During the proceedings the court appointed a medical expert .

At the first hearing , held on DATE , the court 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 , ORG issued a supplement to the judgment ( dopolnilna sodba ) . On DATE the applicant also appealed against the supplement to the judgment .

On DATE ORG allowed the applicant 's and ORG 's appeals in part . The court reduced the damages awarded in the first - instance proceedings and remitted the case to the first - instance court for re - examination as regards the costs of the proceedings . The judgment was served on the applicant on DATE .

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

He also requested that a judge should withdraw from the proceedings . On DATE the President of ORG rejected the request .

On DATE the court dismissed the applicant 's appeal on points of law . The judgment was served on the applicant on CARDINAL October DATE .

Meanwhile , on DATE , the first - instance court had issued a decision concerning the costs of the proceedings . The applicant 's appeal against that decision was dismissed by ORG on DATE .

The Act on the Protection of the Right to a Trial without undue Delay ( Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja , ORG , No . DATE ) has been implemented since DATE . Under its sections CARDINAL and CARDINAL , the right to a trial within a reasonable time is guaranteed for a party to court proceedings , a participant under the LAW governing non - contentious proceedings and an injured party in criminal proceedings .

Section CARDINAL lays down the following transitional rules in relation to applications already pending before the ORG :

“ ( CARDINAL ) In cases where a violation of the right to a trial without undue delay has already ceased and the party had filed a claim for just satisfaction with the international court before the date of implementation of this LAW , the ORG Attorney 's ORG shall offer the party a settlement on the amount of just satisfaction within DATE after the date of receipt of the case referred by the international court for the settlement procedure . The party shall submit a settlement proposal to the ORG Attorney 's ORG within DATE of receipt of the proposal of the ORG Attorney 's ORG . The State Attorney 's Office shall decide on the proposal as soon as possible and within DATE at the latest . ...

( CARDINAL ) If the proposal for settlement referred to in paragraph CARDINAL of this section is not acceded to or ORG and the party fail to negotiate an agreement within DATE after the date on which the party filed its proposal , the party may bring an action before the competent court under this LAW . The party may bring an action within DATE after receiving the ORG Attorney 's ORG reply that the party 's proposal referred to in the previous paragraph was not acceded to , or after the expiry of the period fixed in the previous paragraph for the ORG Attorney 's ORG to decide to proceed with settlement . Irrespective of the type or amount of the claim , the provisions of LAW concerning small claims shall apply in proceedings before a court . ”


Anatoly Kovler;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva

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

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

In DATE ORG office of GPE opened criminal investigations against the applicant who was suspected of having committed an act of hooliganism . In the course of the criminal investigations the applicant ’s PERSON vehicle was impounded . On DATE the applicant was informed by a letter from the same prosecutor ’s office that the criminal proceedings were discontinued because no facts had been established that would constitute a criminal offence . The letter stated that the applicant could access the official text of that decision at the prosecutor ’s office and that he could challenge it before the prosecutor or the court .

On DATE the applicant requested the prosecutor ’s office to return him the impounded vehicle . In reply , he was informed on DATE that all material evidence seized in the course of criminal proceedings were in charge of the NORP ORG of the Interior and he could claim his belongings there . It is not clear whether the applicant attempted to do so .

On DATE the applicant seized ORG with a claim for compensation of damage caused by the unlawful prosecution . Among other complaints , he alleged that he did not get back the impounded vehicle .

On DATE the court issued a resolution to stay the proceedings on the ground that the applicant had failed to comply with the formal requirements for lodging a claim . In particular he did not provide the court with copies of the procedural decision that he intended to challenge , i.e. , the ORG decision to institute the criminal proceedings . The applicant was allowed DATE for supplementing his submissions .

On DATE the applicant appealed against the stay of proceedings claiming that the court could request the missing documents under its own powers . On DATE he was informed by the same court that the stay of proceedings was not amenable to appeal .

The applicant did not take any steps to comply with the court order of CARDINAL August CARDINAL . Neither did he request an extension of the time - limit for supplementing his submissions , which , accordingly , expired on DATE .

On DATE the court returned the applicant ’s claim by posting it to him by ordinary mail .

The applicant did not attempt to lodge his claims again . In DATE he brought several requests for supervisory review complaining about the court ’s refusal to accept his claim for examination , but these were refused on the ground that every time he failed to attach a copy of the court order of CARDINAL DATE .

The RSFSR Code on Civil Procedure , in force at the material time , provided as follows :

“ Having established that the claim does not conform to the formal requirements of ... this Code ... the judge issues a resolution to stay the claim and notifies the plaintiff and sets a time - limit for rectification of the shortfalls .

If the plaintiff complies ... within the time - limit ... the claim is considered lodged on the date when it was originally filed with the court . Otherwise , the claim is considered as not having been lodged and is to be returned to the plaintiff . ”

“ Resolutions of the courts of first instance may be appealed before the court of cassation separately from the courts’ judgements by the parties and other persons taking part in the proceedings , or by a prosecutor ’s protest :

CARDINAL ) when it is specifically provided for by this Code ;

CARDINAL ) NORP whenever the resolution bars the continuation of the proceedings .

Other resolutions of the first instance courts may not be appealed by way of a separate appeal or a protest , but the objections against them may appear in the points of appeal or a protest before the cassation instance . ”


Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Anatoly Kovler;Isabelle Berro-Lefèvre;Karel Jungwiert;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

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

On DATE the applicant was arrested on suspicion of extortion .

In DATE the applicant complained several times to a local prosecutor about the alleged unlawfulness of his detention . It appears that he never received any reply .

On DATE the preliminary investigation was completed .

On DATE the investigator allegedly interrupted the examination of the case file by the applicant and his lawyer . Numerous complaints by the applicant in this respect to the prosecutor ’s office were of no avail .

On DATE the ORG , following adversarial proceedings in the course of which many witnesses including co - defendants and victims gave evidence , convicted the applicant of extortion and sentenced him to CARDINAL years’ imprisonment .

The applicant and his lawyer appealed against this judgment . On DATE ORG , having heard the applicant and his lawyer , upheld the judgment of DATE . According to the applicant , in the courtroom he was kept in a metal cage measuring CARDINAL or QUANTITY with CARDINAL other defendants , and had no room in the cage to take out his notes and use them .

DATE and between DATE and DATE the applicant was held in the temporary detention unit of the NORP police department ( ORG временного содержания г. PERSON ) in cells QUANTITY . CARDINAL and DATE . The applicant stated that cell no . CARDINAL had measured QUANTITY and had held CARDINAL inmates ; and cell no . CARDINAL had measured QUANTITY and had held CARDINAL inmates . The detainees had never had exercise outside . The applicant was not allowed to take a shower CARDINAL ; DATE and DATE he took a shower CARDINAL times . The ventilation never worked , the windows were covered with metal shutters , and the detainees were not provided with bedding or mattresses . The applicant and other detainees had to use the toilet in front of their cellmates , and they did not have a table to eat at . According to the applicant , these detention conditions led to deterioration of his eyesight and caused hypertension and bronchitis . Furthermore , the detainees never had DATE outdoor exercise .

The Government confirmed that the inmates had been prevented from taking showers because of maintenance work . No further information on conditions of detention in the temporary detention unit of the NORP police department was provided by the Government .

The applicant produced written statements by PERSON and PERSON , who had been detained in cell no . DATE in the NORP police department in DATE and DATE respectively . They confirmed the applicant ’s account of the conditions of detention there , namely that the cell measured QUANTITY and held QUANTITY inmates ; that the sanitary conditions were terrible and that no shower or DATE outdoor exercise had been provided .

From DATE to CARDINAL DATE , and then from DATE to DATE , the applicant was held in pre - trial detention facility IZ-CARDINAL/CARDINAL , GPE , in different cells .

The applicant asserted that the cells had been overcrowded . All the cells had measured QUANTITY , had had CARDINAL beds and had accommodated from CARDINAL to CARDINAL inmates . In particular , in cells QUANTITY . CARDINALa and CARDINAL the applicant had been kept with CARDINAL other detainees , and in cells CARDINAL . CARDINAL , CARDINAL and CARDINAL there were CARDINAL , QUANTITY and CARDINAL inmates respectively . The cells had been seriously infested with insects , rats and mice . The applicant had had no separate bed or appropriate bedding , and the inmates had slept in shifts . The cells where the applicant had been held had had no ventilation . As the windows had no glass and had only been covered with metal shutters , in DATE the temperature had been extremely low and in DATE the cells had been hot , stuffy and damp . There had been insufficient access to daylight . The toilet had been QUANTITY from the table and the applicant had had to use it in front of his cellmates . The GPE attempts to curtain the toilet were punished by wardens .

The Government submitted that the applicant had been held in CARDINAL different cells ( nos . CARDINAL , CARDINAL , CARDINAL , CARDINALa , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL ) . Each cell measured QUANTITY . According to the Government , no information on the number of inmates in the cells was available , as the documents had been destroyed . All cells had been equipped with heating , natural ventilation , water supply , daylight and artificial light , and with a lavatory pan . The lavatory pan had been separated from the living area by a wall QUANTITY in height . The inmates had been allowed to take a shower once DATE . The applicant had had an individual sleeping place and bedding . He had had TIME outside exercise a day . The sanitary conditions and temperature in the cells had been adequate , and the cells had been disinfected on a DATE basis . Furthermore , during the detention period the applicant had had regular medical examinations and received appropriate treatment .

The applicant produced written statements by PERSON and PERSON , who had been detained in detention facility IZ-CARDINAL/CARDINAL , GPE , in DATE and DATE respectively . They confirmed the applicant ’s account of the conditions of detention there , namely that the cells were constantly overcrowded and the detainees always slept in shifts .

According to the applicant , he had complained numerous times to the courts , ORG , and the detention facilities management , but either had no reply or had been told “ the conditions were the same for all ” . He stated that he had submitted CARDINAL written complaints concerning the inhuman conditions of his detention and had complained verbally DATE .

According to the ORG ’s submissions , the applicant had complained about the conditions of detention in the NORP police department on CARDINAL and DATE and had received a reply on DATE about the impossibility of taking a shower for technical reasons . During the whole period of his detention in IZ-CARDINAL/CARDINAL he had lodged CARDINAL complaint with ORG .

On DATE the applicant was taken to ORG for the appeal hearing .

The applicant contended that the conditions of his transport to the courthouse and back to the detention facility on DATE had been appalling . He had been transported in a special car , designed for CARDINAL people , with CARDINAL to CARDINAL other detainees . The car had been so crowded that the wardens had not been able to close the door and had had to use force to push the detainees in . They had not been able to move during the journey because of the cramped conditions .

The Government submitted that the applicant had been transported in a special prison van equipped for the transport of detainees in accordance with applicable standards and designed for CARDINAL people . ORG is located QUANTITY from IZ-CARDINAL/CARDINAL , and the travel time did not exceed TIME .

NORP The applicant stated that before and after the hearing he had been confined to a small unventilated courthouse cell ( комната для задержанных ) measuring QUANTITY , together with CARDINAL other defendants . There were no windows and people had had to remain standing . The applicant had received no food on the hearing day .

The applicant had been brought to the courtroom with CARDINAL other defendants . They had all been handcuffed to a steel wire , which surrounded the group ( “ group handcuffing ” ) .

The Government submitted that the detention unit of ORG had CARDINAL cells , was equipped with a toilet and wash stand and had natural light . The cells had mandatory ventilation and lighting . Handcuffs were used only to convey the applicant to the courtroom and back ; there was no “ group handcuffing ” .

Section CARDINAL of ORG Federal Law no . CARDINAL-FZ of DATE ) provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements . They should be provided with an individual sleeping place and given bedding , tableware and toiletries . Each inmate should have CARDINAL four square metres of personal space in his or her cell . According to section DATE , administration of detention facilities shall meet the sanitary and hygienic requirements which secure the GPE health .

Relevant international documents and reports concerning the conditions in NORP penitentiary establishments can be found in the judgment of DATE in the case of NORP v. GPE , ( no . CARDINAL , § § DATE ) , judgment of CARDINAL DATE in the case of GPE v. GPE , ( no . CARDINAL/CARDINAL , § CARDINAL ) and judgment of CARDINAL DATE in the case of PERSON v. GPE ( no . CARDINAL , § § CARDINAL - CARDINAL ) .


Violation of P1-1;Just satisfaction reserved

André Potocki;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Klaus Köpp;Mark Villiger;Renate Jaeger

The facts of the case , as set out by the parties , can be summarised as follows .

The present dispute is between GPE , which succeeded to the rights of the heirs of the original NORP owners of the disputed property ( the initial injured party – “ Erstgeschädigte ” ) under ORG of CARDINAL DATE , and the applicants , who are the heirs of a shopkeeper who had acquired the disputed property in DATE ( the initial sale having taken place in DATE ) . The property was subsequently expropriated at the time of the former GPE ( GPE ) . The applicants are thus the heirs of the subsequent injured party – “ GPE ” .

The disputed plots of land , having respective surface areas of CARDINAL sq.m , CARDINAL sq.m and ORG , are located at ORG , near GPE , on the territory of the former GPE .

By a notarially - registered contract of DATE , PERSON and PERSON , who were NORP and partners in the limited partnership “ ORG und A. ” , the owner of the disputed plots of land , sold them for CARDINAL reichsmarks ( RM ) to the GPE company A. PERSON . Having been the victims of persecution under the ORG regime , PERSON died in DATE and PERSON in DATE . PERSON , daughter of PERSON , emigrated to GPE in DATE and became a GPE citizen in DATE .

By a notarially - registered contract of DATE , the disputed plots of land were then sold for RM CARDINAL to PERSON , a shopkeeper , who was registered as the owner at the land registry , and the applicants are his heirs .

On DATE , in the former GPE , the land was expropriated and became “ people ’s property ” ( ORG ) under the control of a ORG - owned film company .

PERSON subsequently brought proceedings in the GPE for the loss of the disputed property , in accordance with the GPE law of DATE on claims against the GPE , which entitled GPE citizens whose property in the former GPE had been expropriated before that date or which had been sold under duress in ORG period to file claims for compensation .

In a final decision of CARDINAL DATE , ORG acknowledged that PERSON was entitled to MONEY ( ORG ) in compensation , plus interest at PERCENT from DATE .

NORP After NORP reunification the property was transferred to the company “ dok GPE ” , whose sole shareholder was the ORG for special reunification - related questions ( GPE vereinigungsbedingte PERSON ) .

In a decision of DATE , that ORG observed that the disputed property had been sold for CARDINAL deutschmarks ( ORG ) for investment purposes to the company PERSON , in accordance with LAW ( GPE ) of DATE ( see relevant domestic law and practice , paragraph CARDINAL below ) .

On DATE the applicants filed a claim for the restitution of the property with ORG ( PERSON die GPE offener Vermögensfragen – “ Office of the Land ” ) , in accordance with the relevant provisions of the PERSON on the resolution of outstanding property issues – “ LAW ” ( Gesetz zur Regelung offener Vermögensfragen – Vermögensgesetz ) of DATE ( see relevant domestic law and practice , paragraph CARDINAL below ) .

On CARDINAL DATE GPE ( FRG ) and GPE signed ORG on the settlement of certain property claims – “ the German - US Agreement ” ( Abkommen zwischen den ORG der PERSON über die GPE bestimmter Vermögensansprüche ) , which provided for a global settlement of compensation claims by GPE citizens resulting from the GPE law of DATE on claims against the GPE . By a law of DATE the German - US Agreement became an integral part of domestic law ; it entered into force on DATE ( see relevant domestic law and practice , paragraph CARDINAL below ) . On DATE , the ORG paid a total sum of MONEY in compensation .

On DATE LAW ( Vermögensrechtsbereinigungsgesetz ) retrospectively amended section CARDINAL ) of LAW , providing that the time - limit for the filing of restitution claims , initially set at DATE , did not apply to the rights of the ORG under ORG ( see relevant domestic law and practice , paragraph CARDINAL below ) .

In a letter of DATE the ORG indicated to ORG that in accordance with LAW , second sentence , of the GermanUS Agreement , it had taken over PERSON title to the disputed property .

NORP In a decision of DATE ORG dismissed the applicants’ restitution claim and indicated that the proceeds from the sale of the disputed property in DATE was indeed to be paid to the ORG . It first noted that the initial sale of the disputed plots of land in DATE had been obtained under duress , within the meaning of section CARDINAL(CARDINAL ) of LAW . Consequently , the rights pertaining to the property fell within the scope of ORG . In accordance with sections CARDINAL(CARDINAL ) and PERSON ) of LAW , read together with LAW , second sentence , of ORG , the ORG had become the legal successor to PERSON She had opted for the payment of compensation and had thus renounced her claims against the ORG .

The applicants brought proceedings before ORG , on the ground that they had a lawful entitlement to restitution , having regard to the fact that PERSON had not lodged any application to that effect before the time - limit of DATE , as provided for by section CARDINAL ) , first sentence , of LAW , notwithstanding the subsequent amendment of that provision by LAW of DATE .

In a judgment of DATE , ORG upheld the ORG ’s decision on all points . In the court ’s view , even if the ORG ’s right to restitution had lapsed , because no application had been lodged to that effect before the time - limit of DATE fixed by section CARDINAL ) , first sentence , of LAW , its right had subsequently been revived following the amendment of that section in DATE . Moreover , the applicants had not acquired an irrevocable ( unabänderlich ) right under LAW ( right to property ) of LAW ) , because at the time of the FRG ’s claim in DATE , ORG had not yet given its decision .

NORP In a judgment of DATE ORG dismissed the ORG request for judicial review . It first noted that , under the relevant provisions of ORG , the property rights of PERSON had been transferred to the ORG . Given that PERSON had been compensated in DATE , the ORG ( NORP Claims Conference ) , which had also filed a restitution claim , could not claim property rights . ORG then confirmed that the ORG had not filed a valid restitution claim before the time - limit of DATE as provided for by section CARDINAL ) , first sentence , of LAW . The law on LAW DATE had not provided for any specific provisions in that connection and the letter of DATE from ORG for ORG ( ORG für die GPE offener Vermögensfragen – “ the ORG ” ) to the authorities of the ORG could not be regarded as a valid claim because it was not sufficiently specific . Referring to its settled case - law , ORG added that the fixing of this time - limit corresponded to a provision of substantive law , which meant that the rights of the ORG had lapsed with the expiry of the statutory time - limit . However , by amending section CARDINALa(CARDINAL ) of LAW in DATE , the legislature had “ remedied ” the failure to file a claim within that time - limit . It was only from DATE that the property rights of PERSON could be considered to have been effectively transferred to the ORG , and not at the time of the complete payment of compensation as provided for in LAW of ORG ( see relevant domestic law and practice , paragraph CARDINAL below ) . The aim of that legislative amendment had been to ensure the survival of the former property rights and to rectify that omission . In addition , again with reference to its settled case - law , ORG took the view that the applicants’ rights to restitution under LAW did not benefit from the protection of LAW , because those rights did not correspond to existing property rights but stemmed from the ORG ’s wish to provide redress for past injustice . Lastly , in accordance with the settled case - law of ORG , it was in this case a question of “ quasi - retrospective ” effect ( unechte PERSON ) ; having regard to the confused and uncertain legal situation existing at the time , the applicants had not acquired any “ confidence warranting protection ” ( schutzwürdiges Vertrauen ) or any legal certainty that their position as “ subsequent ” injured party afforded them an entitlement to the restitution of the disputed property . Moreover , the ORG had also filed a restitution claim within the statutory time - limit , and its rights would have prevailed over those of the applicants if it had been successful .

In a decision of CARDINAL DATE ORG , sitting in a committee of CARDINAL members , refused to allow a constitutional complaint by the applicants . It observed in particular that section CARDINALa(CARDINAL ) , fourth sentence , of LAW was compatible with LAW , even if it were presumed in the ORG favour that their entitlement to restitution under LAW , or to the payment of the proceeds of the sale under section CARDINAL(CARDINAL ) , first sentence , of LAW , enjoyed the protection of LAW . In ORG view , section CARDINALa ( CARDINAL ) , fourth sentence , of LAW had to be understood as a provision defining the content and limits ( Inhalts- PERSON ) of the right to property within the meaning of LAW , second sentence , of LAW , and struck a fair balance between the interests at stake . Under LAW ( CARDINAL ) of LAW , taken together with LAW ) , first sentence , of the PERSON of DATE on compensation in accordance with LAW – “ LAW ” ( PERSON über die Entschädigung nach dem ORG zur GPE offener Vermögensfragen – Entschädigungsgesetz – see domestic law and practice , paragraph CARDINAL in fine , below ) , the applicants , being regarded as the “ subsequent ” injured party , were , from the outset , simply entitled to compensation . Under LAW , second sentence , of ORG , the ORG had succeeded to the rights of the “ initial ” injured parties , who , having regard to the compensation that they had already received , could no longer claim any rights based on LAW . In filing a claim concerning property rights based on ORG , the ORG had thus sought to secure a property right equivalent to that of an “ initial ” injured party that had already materially been “ claimed ” and compensated for . The legislature had thus wished to clarify the situation for that kind of right .

ORG added that even if a different position were adopted , namely , as ORG had found , that the rights under section CARDINAL(CARDINAL ) of LAW had lapsed on DATE and had then been revived following the amendment of section CARDINAL ) of LAW , the new version of that section had struck a fair balance between the interests at stake . The property rights under the German - US Agreement had originally been provided for by the GPE law of DATE and had already been compensated for in DATE as regards the disputed property . At the time of the ratification of ORG it had been presumed that the total amount to be paid in compensation could reach ORG CARDINAL . The ORG could not have been expected ultimately to renounce its property rights for which it had had to pay compensation in such a high amount – even though the transfer had not become effective until the determination of the final transfer payment ( nach ORG endgültigen PERSON ) . For this reason , ORG had in particular sent the ORG authorities the lists of the rights covered by the LAW , in a letter of DATE from ORG . In addition , the law of DATE on the acceleration of registration procedures ( “ Register - Beschleunigungs - Gesetz ” ) extended the possibility for the competent authorities to enter reservations in the land register ( stipulating that the property could be sold only with the ORG ’s approval ) in respect of the rights arising from ORG .

Under those circumstances , there could not have been any “ confidence warranting protection ” as to the maintaining of the statutory situation as it had first existed according to the initial version of section CARDINALa(CARDINAL ) .

On DATE the applicants filed a request for compensation for the loss of the disputed property with ORG , in accordance with the relevant provisions of LAW .

In a decision of CARDINAL DATE ORG dismissed the applicants’ request on the ground that they had not filed it within DATE after the final rejection of the restitution claim , as provided for by section CARDINALa(CARDINALc ) of LAW .

The applicants then appealed to ORG , which stayed the proceedings pending the judgment of ORG ( “ the ORG ” ) in the present case .

Article CARDINAL § CARDINAL of LAW reads as follows :

“ Property and the right of inheritance shall be guaranteed . Their content and limits shall be defined by statute . ”

On DATE LAW of DATE , which was also to be part of LAW ( Einigungsvertrag ) , came into force . Under LAW would remain in force in GPE after the reunification of the two GPE on DATE . The LAW ’s purpose was , in particular , to settle any conflicts relating to property on the territory of the GPE in a manner that was socially acceptable , in order to ensure long - term legal security in GPE .

Section CARDINAL(CARDINAL ) of LAW provides that it is applicable to rights in respect of property that was expropriated at the time of the GPE and section CARDINAL ) provides that it also applicable to persons against whom proceedings were brought in GPE DATE and DATE on racist , political , religious or ideological grounds ( weltanschauliche GPE ) and who had consequently lost their property “ by forced sale , expropriation or other means ” . Sections CARDINAL and CARDINAL of the LAW complement section CARDINAL .

Section CARDINAL(CARDINAL ) of LAW provides that any property that became “ people ’s property ” will be returned on request unless excluded by the law . LAW ) provides that if a number of parties make a request for restitution concerning the same property , it is the party that was “ first ” injured which is thus entitled . That means that , as in the present case , when property was sold under duress during ORG period , then subsequently expropriated in the former GPE , the heirs of the original NORP owners have a priority right to restitution . In such a case where restitution of the property is excluded ( section CARDINAL(CARDINAL ) of LAW ) , the heirs of the purchasers of the property during the National - Socialist period are entitled to the payment of compensation provided for by the law of CARDINAL DATE on compensation according to LAW .

Section CARDINAL § CARDINAL , first sentence , of LAW provides that if restitution of property is impossible because the property has been sold , the person entitled may request payment of a sum equivalent to the value of his property rights .

Section CARDINAL ) , first sentence , of LAW stipulates that restitution claims had to be filed no later than DATE . LAW of DATE amended the section in question by introducing a fourth sentence according to which that timelimit does not apply to rights held by the ORG LAW DATE between the ORG and GPE Governments on the settlement of certain property claims .

Article CARDINAL § CARDINAL of ORG provides that GPE citizens have to choose between receiving compensation or bringing proceedings before the NORP courts to obtain reparation in accordance with the GPE law of DATE on claims against the GPE . If they opt for the first solution , they forfeit any right of action against the ORG , under LAW , second sentence , of the LAW . Under LAW § CARDINAL , second sentence , their property rights are then transferred to the ORG at the time of the complete payment of compensation . That statutory succession also applies to rights arising from any harmful measures taken under the ORG regime .

By a law of DATE the German - US Agreement became part of domestic law . It entered into force on DATE .

In a judgment of CARDINAL DATE ORG indicated that section CARDINALa(CARDINAL ) , fourth sentence , of LAW ( which , in its new version , provides that the time - limit initially set for restitution claims does not apply to rights stemming from ORG ) did not apply if the legislative amendment had taken place after the issuance of a restitution notice by the competent authority and the transfer of the property to an entitled party other than ORG . In that judgment it further held that , having regard to its wording , meaning and aim , section PERSON ) , first sentence , of LAW applied at the outset to all property claims . In order to ensure legal certainty , the time - limit initially fixed also had to apply to the “ derived ” claims ( abgeleitete Ansprüche ) arising from ORG .