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

A NORP company called ORG ( hereinafter “ ORG ” ) and an NORP company called ORG ( hereinafter “ VIS ” ) agreed that they would gradually switch production of coated decorative panels known as “ ORG - panels ” from GPE to the ORG factory in GPE , so that ORG would eventually become responsible for their marketing only . ORG had a monopoly over ORG - panels in GPE .

At DATE ORG and ORG signed another contract , according to which ORG would buy wind - block panels from ORG . The cooperation between the CARDINAL companies covered , as a result , all the marketing rights of ORG products in GPE , GPE and west - NORP countries .

ORG , which was still producing ORG - panels of its own , later allegedly ignored the above - mentioned cooperation contracts , causing ORG financial difficulties . ORG considered that the agreements had been terminated and decided to build its own production line to make coated decorative panels . The production line was ordered through ORG , a NORP company apparently owned by DATE applicants , from a company called PERSON , owned by the third applicant .

On DATE the managing director of ORG , PERSON , requested the police to investigate whether there had been a disclosure of their business secrets , alleging that their exclusive rights to the design of a production line to make coated decorative panels had been used without their permission to build the ORG production line in GPE .

The investigations were carried out by ORG ( keskusrikospoliisi , centralkriminalpolisen ) , which appointed PERSON , a mechanical engineer , as their expert in the case . He had worked for a company called ORG , which belonged to the same consolidated group as ORG . ORG also requested expert statements from Professor PERSON in respect of technical questions , and from Professor PERSON in respect of the legal aspects of the protection of business secrets . Professor PERSON was asked to address in particular whether the first and second applicants had provided ORG with information covered by business secrecy . Further , he was asked to give an opinion on the third applicant ’s activities in the planning of the production line , whether he had possessed information covered by business secrecy and whether he had availed himself of such information . Professor PERSON was provided with the pre - trial statements of the applicants and CARDINAL others . On DATE he submitted his opinion comprising CARDINAL pages of which CARDINAL pages concerned his assessment of the nature of the applicants’ alleged actions .

The applicants requested that an NORP citizen , PERSON , also be heard as a witness in the pre - trial investigation , but ORG made no attempt to call him as a witness . The applicants were not able to appoint their own expert as the ORG production line , with which the ORG production line was to be compared , was protected by the exclusive business secrecy of ORG . According to the applicants , their expert was therefore prevented from examining the ORG production line . The ORG production line went into operation only after ORG ( hovioikeus , hovrätten ) proceedings had come to an end .

NORP The public prosecutor brought charges against the applicants for , inter alia , disclosure of a business secret . In the indictment , he alleged that the applicants had undertaken to carry out a project for the production of coated decorative panels on the basis of information they had on the production and marketing of a similar product known as ORG - panels of ORG , in cooperation with ORG . ORG had been established for the purposes of the project , which was to provide ORG with the production line for the panels corresponding to ORG - panels and otherwise to take care of the supply of equipment , training and know - how . According to the indictment , the information used for carrying out the project constituted a business secret of ORG . Although the third applicant had no association with ORG , he was allegedly aware of the fact that the project in which he had participated was to a large extent based on the business secrets of ORG .

On CARDINAL DATE ORG ( käräjäoikeus , tingsrätten ) began its examination of the charges . The applicants pleaded not guilty , arguing , inter alia , that ORG had deliberately given up its allegedly exclusive right to any secrets as it had handed over all the relevant information to ORG anyway . They also argued that the design was a matter of common knowledge and was not protected in any way , as the patent for ORG - panels had already expired at the time of the events in question and the ORG factory had been accessible to anyone . They also noted that a similar panel was produced in GPE . According to the applicants , ORG intended to exploit its monopoly status with the help of the court proceedings .

The applicants called GPE , among others , as their witness . They also requested that the former members of ORG ’s board of directors , Mr PERSON and PERSON , called by ORG , should not be heard as witnesses as their real status was that of a complainant given their close relationship with the company . ORG rejected their claims and took evidence from ORG and TIME ORG also heard oral evidence from the applicants , from CARDINAL witnesses called by the prosecution and from CARDINAL witnesses for the defence . CARDINAL witness for the complainant company was also heard .

In DATE , during a DATE hearing , the fourth applicant requested that CARDINAL engineers , both witnesses for the defence , should be allowed to acquaint themselves with ORG ’s production line . However , he withdrew the request during the hearing . At no stage during the proceedings did anyone request that Professor PERSON , who had given a written expert opinion during the pre - trial investigation , be heard as a witness before ORG . Nor was there any objection to the inclusion of the opinion in the case file .

On DATE ORG found the applicants guilty as charged and fined them . Professor PERSON ’s written expert opinion was quoted several times in the judgment .

The parties appealed . The applicants were each represented by different counsel and therefore lodged separate writs of appeal . The second applicant explicitly requested that Professor PERSON , among others , be called as a witness before ORG , as the applicants had not had an opportunity to put questions to him . The first and fourth applicants for their part drew the court ’s attention to the fact that Professor PERSON had given his written opinion in the course of the pre - trial investigation , having had at his disposal only limited knowledge about the facts of the case . Thus , no weight should be given to his written opinion . The applicants also complained that ORG had failed to take into account any of the statements made by the witnesses called by them . Some of these arguments were advanced by all of the applicants , others by CARDINAL of them .

On DATE ORG held an oral hearing . However it refused to hear any witnesses , finding that the allegation that the evidence had been wrongly assessed did not warrant a rehearing since the credibility of the evidence in question had not been challenged . It also considered that the taking of witness evidence would not produce any new information relevant to the case .

In its judgment of DATE ORG upheld most of ORG reasoning . It did not give any reasons for its decision not to hear Professor PERSON even though the second applicant had explicitly requested that he be heard . It upheld their conviction and increased their sentences to suspended terms of imprisonment .

The applicants requested leave to appeal , alleging , inter alia , that the principle of equality of arms between the public prosecutor and the defence had been violated . The applicants had not been able to appoint an expert who could have examined the production line in question , nor had they been allowed to put questions to Professor PERSON at an oral hearing , even though ORG judgment had essentially been based on the expert opinion he had submitted to the police during the pre - trial investigation .

On DATE ORG ( korkein oikeus , högsta domstolen ) refused leave to appeal .

The rules of evidence are laid down in LAW of LAW ( oikeudenkäymiskaari , rättegångsbalken ; Act no . CARDINAL ) . In criminal proceedings , the forms of submission of evidence are CARDINAL ) examination of witnesses , CARDINAL ) hearing of experts , CARDINAL ) hearing of parties under oath ( in criminal proceedings only the injured party can be heard under oath and only about the establishment of losses suffered by him or her ) , CARDINAL ) hearing of parties without an oath , CARDINAL ) submission of documentary evidence , and CARDINAL ) inspection in situ .

Section CARDINAL ( CARDINAL ) provides that a fact that is a matter of common knowledge or known to the court ex officio need not be proven . In addition , evidence need not be presented on the content of domestic law ( jura novit curia ) . If the court does not know the foreign law applicable to the case , it is for the parties to submit evidence on it .

Section CARDINAL ( CARDINAL ) provides that if an expert witness with special professional knowledge is deemed necessary , the court can obtain an opinion on the matter from , for example , a public official or an expert in the relevant field who is known to be honest and competent . Section CARDINAL provides that an expert who is heard before the court must take an oath .

Section CARDINAL ( Act no . CARDINAL/CARDINAL ) provides that an expert must give a detailed account of the findings in his or her investigation and , on the basis of the account , a substantiated opinion on the questions put to him or her . The opinion shall be compiled in writing , unless the court deems it necessary that the opinion be presented orally . An expert witness who has given a written opinion shall be heard orally in court , if a party so requests and the hearing of the expert witness is not clearly irrelevant or if the court deems the hearing of the expert witness to be necessary . If there are several expert witnesses , CARDINAL or more of them may be called to be heard .

Section CARDINAL ( Act no . DATE ) provides that if a party to the proceedings relies on an expert not appointed by the court , the provisions on witnesses apply . However , such an expert may be ordered to give a substantiated opinion , as mentioned in section CARDINAL .


Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Mindia Ugrekhelidze;Vladimiro Zagrebelsky

The applicants , PERSON , FAC , PERSON , PERSON , PERSON , Mr PERSON , PERSON GPE and Mr PERSON , are NORP nationals who were born in DATE , DATE and DATE respectively , and live in GPE . They are represented before the ORG by PERSON , a lawyer practising in DATE .

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

On DATE ORG and Highways expropriated CARDINAL plots of land belonging to the applicants in the Seymen village of GPE , for a highway construction . The ORG assessed the value of the land and paid the applicants CARDINAL NORP Liras ( GPE ) per square CARDINAL .

On DATE , i.e. , within the DATE prescription period , the applicants brought an action before ORG for increased compensation , requesting CARDINAL TRL per square metre .

The court appointed a committee of experts , who conducted an on - site property inspection on DATE . They found that the land had been significantly undervalued and assessed it at CARDINAL TRL per square metre .

Given the considerable discrepancy between this evaluation and that of the administration , the court appointed another committee of experts . This new committee conducted an examination on DATE and valued the land at CARDINAL TRL per square metre .

On DATE the applicants filed a petition with the same court for “ amendment ” ( ıslah ) of their claim . They argued that they had been unaware of the real value of their property revealed by the expert reports . On that basis , they requested that their original claim be increased to CARDINAL TRL per square metre , relying on the lower of the CARDINAL expert assessments .

On DATE the court denied the request . It held that the petition had been filed outside of the CARDINAL-day period stipulated for expropriation - related compensation cases .

Ruling on the merits , the court first examined the expert reports . It found that they were consistent with the evidence in the case file as well as the records of the mayor ’s office . It further found that they had duly taken into account the factors affecting the value of the expropriated property .

Nonetheless , the court disregarded the experts’ valuations . It reasoned that both assessments exceeded the ORG claim , and thus , it sufficed to award the amount of compensation originally claimed . It also explained that it was unnecessary to require a third expert valuation with a view to reconciling DATE .

The applicants appealed . They relied on a ORG decision dated DATE . The decision had reviewed the constitutionality of the last sentence of LAW , which read as follows :

“ LAW : The plaintiff can not increase his claim through amendment ( ıslah ) . ”

Declaring that sentence unconstitutional and a nullity , ORG had reasoned :

“ The [ local ] court requesting the review maintained that the impugned rule was contrary to LAW as it forces plaintiffs to initiate a new case and unduly burdens the judiciary .

By not allowing a claim to be increased through amendment , the impugned rule prevents cases from being resolved as promptly and cost - effectively as possible , and thereby violates LAW .

The rule that prevents plaintiffs from increasing their original claims through ‘ amendment’ is contrary to the principle of the rule of law as it makes it unduly difficult to claim a right .

The impugned rule forces a plaintiff to reinitiate the case from the very beginning and as such , it restricts the freedom to seek a legal remedy .

As the rule prevents plaintiffs from receiving redress as promptly and costeffectively as possible , it significantly impedes the freedom to seek a legal remedy , which is irreconcilable with the requirements of a NORP society ... ”

On DATE ORG upheld the civil court ’s judgment . It relied on a different reasoning . Instead of discussing whether or not the petition for “ amendment ” had been filed on time , it held that :

“ By requesting QUANTITY , the plaintiffs have bound themselves . They are not allowed to increase that amount even through amendment .

The fact that the last sentence of LAW had been nullified by ORG has no applicability in this particular context . ”

On DATE the decision was notified to the applicants .

Article CARDINAL of LAW :

“ Article CARDINAL : ... It is the duty of the judiciary to conclude trials as quickly as possible and at minimum expense . ”

The relevant provisions of LAW :

“ Article CARDINAL : Either of the parties may partly or entirely rectify a procedural act . Each party may use the right of rectification only once within a case . ”

“ LAW For cases subject to investigation , rectification may be made until the end of the investigation , for all other cases , it may be made until the end of the trial . ”

Article CARDINAL of LAW :

“ Right of action

Article CARDINAL : The owner ... of an expropriated property may , within DATE from the notification [ of an expropriation ] , file an action to ... challenge the amount of compensation assessed [ by the authorities ] . ”

In a case concerning the plaintiff ’s inability to increase his claim through amendment ( ıslah ) ( file no . CARDINAL , decision no . CARDINAL ) , ORG ruled , in its judgment dated DATE , that the plaintiff was bound by his original claim . In its opinion , the fact that ORG annulled LAW did not give the plaintiff a new right as long as he did not bring a partial action ( kısmi dava ) . Under NORP law , a “ partial action ” was brought when the plaintiff made a partial claim and stated in his petition that he reserved his further rights , i.e. the right to increase his claim .

In a case concerning the plaintiff ’s request for pecuniary and nonpecuniary compensation for having suffered bodily harm ( file no . CARDINAL/CARDINAL , decision no . CARDINAL ) , ORG of ORG held , in its judgment DATE , that if the plaintiff did not reserve his further rights and bring a “ partial action ” he could not increase his claim by way of amendment ( ıslah ) . It further stated that any plaintiff who did not reserve his further rights when bringing an action must be considered to have forfeited them and that this forfeiture could not be altered through amendment .

In a case concerning the plaintiff ’s request to increase his claim through amendment ( file no . CARDINAL , decision no . CARDINAL ) , the CARDINALth Chamber of ORG ruled in its judgment of DATE that an amendment would only be possible should the plaintiff make such a request within the statutory time - limit . In this case , having found that the plaintiff ’s request for increased compensation was time - barred , the court concluded that the amendment request must be dismissed .


CASE OF ÖZGÜRLÜK VE DAYANIŞMA PARTİSİ (ÖDP) v. TURKEY

No violation of Article 14+P1-3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 of Protocol No. 1 - Free expression of opinion of people;Right to free elections-{general})

András Sajó;Françoise Tulkens;Guido Raimondi;Paulo Pinto De Albuquerque

NORP The applicant party , Özgürlük ve PERSON ( “ the ORG ” ) , is a NORP political party based in GPE .

By a decree of CARDINAL DATE , ORG published a list of the CARDINAL political parties authorised to participate in the parliamentary and municipal elections to be held on DATE . The ORG featured on the list . In order to be able to participate in the elections in question , the political parties had to have had , for DATE prior to the elections , branches in CARDINAL the country ’s provinces and to have already organised their party conference .

On DATE the ORG applied to ORG for the financial assistance available to political parties under LAW .

By a decision of CARDINAL DATE , ORG refused the application on the ground that only political parties meeting the criteria laid down by Law no . CARDINAL on political parties were eligible for public funding .

On DATE the ORG brought proceedings in ORG seeking the setting - aside of the decision of DATE . The ORG began by pointing out that the LAW itself provided that “ the ORG shall grant political parties sufficient and equitable funding ” and that “ the law shall define the principles applicable to party funding , ORG subscriptions and donations ” . The applicant party observed in particular that the criteria laid down by the PERSON on political parties excluded parties which were not represented in ORG from entitlement to ORG subsidies . Pointing to the difficulty of carrying out political activities and campaigning without the necessary financial resources , it contended that the statutory exclusion was unconstitutional and contrary to the principles of a democratic ORG , to the ORG ’s duty to promote democratic rights and freedoms , and to the principle of nondiscrimination . Furthermore , the provisions in question were in breach of international human rights protection instruments .

In a judgment of DATE , ORG rejected the application lodged by the ORG , on the ground that the latter did not satisfy the criteria laid down by PERSON no . PERSON on political parties . The court did not rule on the plea of unconstitutionality raised by the ORG .

The ORG lodged an appeal on points of law against the judgment of DATE , reiterating the arguments it had submitted at first instance .

NORP In a judgment delivered on DATE and served on the applicant party on DATE , ORG upheld the impugned judgment , which it found to be in accordance with the rules of procedure and law .

The final paragraph of LAW states that “ the ORG shall grant political parties sufficient and equitable funding ” and that “ the law shall define the principles applicable to party funding , ORG subscriptions and donations ” .

NORP Under additional section CARDINAL of Law no . CARDINAL on political parties , the ORG provides financial assistance ( the overall amount of which represents DATE of its budget ) to the political parties represented in ORG , in proportion to the number of votes they obtained in the preceding parliamentary elections . Political parties that are not represented in ORG are also entitled to this assistance , provided that they obtained PERCENT of the votes cast in the preceding election . Parties with CARDINAL members of ORG are also eligible , even if they did not participate in the last election .

The funding provided to political parties is tripled in a parliamentary DATE and doubled in a municipal DATE .

By a judgment of DATE , ORG dismissed by a majority a plea of unconstitutionality raised by ORG , which alleged that the statutory PERCENT threshold imposed on political parties in order to obtain ORG funding was discriminatory and therefore unconstitutional . In making its ruling , ORG considered that CARDINAL of the aims of political parties was to obtain electoral support with a view to participating in government and hence contributing to the expression of the opinion of the people . It concluded from this that parties which had not obtained a sufficient level of electoral support did not contribute to the expression of the opinion of the people to the same extent as political parties with broader popular support . It dismissed the argument that using the extent of parties’ contribution to democratic political life as the criterion for allocating ORG funding was not objective , equitable or proportionate .

A minority of the judges of ORG took the view that the PERCENT threshold was too high ( corresponding to CARDINAL votes in the DATE referendum ) , that it gave an unfair advantage to political parties which exceeded it and that the criterion based on the “ contribution to the expression of the opinion of the people ” was subjective and in breach of the principle of the rule of law .

The ORG obtained PERCENT of the valid votes cast in the parliamentary elections of DATE , CARDINAL % of the vote in the elections of DATE and PERCENT of the vote in the DATE elections .

The parties that received funding prior to the elections in question had either won seats in ORG in the preceding parliamentary elections or had obtained PERCENT of the valid votes cast in those elections .

Ahead of the DATE general election , CARDINAL political parties ( including CARDINAL that was not represented in ORG ) of the CARDINAL parties fielding candidates received State financial assistance . Before the DATE general election , CARDINAL parties ( including CARDINAL not represented in ORG ) of the CARDINAL parties contesting the election received ORG funding . Prior to the DATE election , funding was given to CARDINAL of the CARDINAL parties fielding candidates ; of the CARDINAL parties concerned , CARDINAL were not represented in ORG . The ORG has never received ORG funding .

The relevant passages of the Guidelines on political party regulation drawn up by the OSCE / ODIHR and ORG , and adopted by ORG at its CARDINALth Plenary Session ( GPE , DATE DATE , PERSON ) , read as follows .

“ CARDINAL . Public funding

( a ) Importance of public funding

Public funding and its requisite regulations ( including spending limits , disclosure , and impartial enforcement ) has been designed and adopted throughout the globe as a potential means of preventing corruption , to support the important role played by political parties and to remove undue reliance on private donors . Such systems of funding are aimed at ensuring that all parties are able to compete for elections in accordance with the principle of equal opportunity , thus strengthening political pluralism and helping to ensure the proper functioning of democratic institutions . Generally , legislation should attempt to create a balance between public and private contributions as the source for political party funding . In no case should the allocation of public funding limit or interfere with the independence of a political party .

NORP The amount of public funding awarded to parties must be carefully designed to ensure the utility of such funding while not eradicating the need for private contributions or nullifying the impact of individual donations . While the nature of elections and campaigning in different States makes it impossible to identify a universally applicable amount of funding , legislation should put in place review mechanisms aimed at periodically determining the impact of public - finance systems and the need ( as such exists ) to alter financial - allocation amounts . Generally , subsidies should be set at a meaningful level to fulfil the objective of support , but should not be the only source of income and should not create conditions for over - dependency on State support .

( b ) ORG support

Legislation should explicitly allow that ORG support for political parties may be financial . The allocation of public money to political parties is often considered integral to respect the principle of equal opportunity for all candidates , in particular where the ORG ’s funding mechanism includes special provisions for women and minorities . Where financial support is awarded to parties , relevant legislation should develop clear guidelines to determine the amount of such funding , which should be allocated to recipients in an objective and unbiased manner .

( c ) Other forms of public support

In addition to direct funding , the ORG may offer support to parties in a variety of other ways , including tax exemptions for party activities , the allocation of free media time , or the free use of public meeting halls for the purposes of campaign activities . In all such cases , both financial and in - kind support must be given on the basis of equality of opportunity to all parties and candidates ( including women and minorities ) . While ‘ equality’ may not be absolute in nature , a system for determining the proportional ( or equitable ) distribution of ORG support ( whether financial or in - kind ) must be objective , fair and reasonable .

( d ) Allocation of funding

The system for allocating public support to political parties should be determined by relevant legislation . Some systems allocate money prior to an election based on the results of the previous election or proof of minimum levels of support . [ Other ] systems provide payment after an election based on the final results . Generally , a pre - election disbursement of funds , or a percentage of funding , best ensures the ability of parties to compete on the basis of equal opportunity .

The allocation of funding may either be fully equal ( ‘ absolute equality’ ) or proportionate in nature based on a party ’s election results or proven level of support ( ‘ equitable’ ) . There is no universally prescribed system for determining the distribution of public funding . Some have argued that legislation for public funding is generally most effective at achieving political pluralism and equal opportunity by providing a combination of both absolute and equitable equality . Where minimum thresholds of support are required for funding , it should be considered that an unreasonably high threshold may be detrimental to political pluralism and small political parties . Further , it is in the interest of political pluralism to have a lower threshold for public funding than the electoral threshold for the allocation of a mandate in ORG .

Legislation should ensure that the formula for the allocation of funding does not provide a monopoly or disproportionate amount of funding to CARDINAL political party . Nor should the formula for allocation of funding allow the CARDINAL largest political parties to monopolise the receipt of public funding .

( e ) Requirements to receive public funding

At a minimum , some degree of public funding should be available to all parties represented in ORG . However , to promote political pluralism , some funding should ideally be extended beyond parties represented in ORG to all parties representative of a minimum level of the citizenry ’s support and presenting candidates in an election . This is particularly important in the case of new parties , which must be given a fair opportunity to compete with existing parties .

Public funding , by providing increased resources to political parties , can increase political pluralism . As such , it is reasonable for legislation to require a party to be representative of a minimum level of the electorate prior to receipt of funding . However , as the denial of public funding can lead to a decrease in pluralism and political alternatives , it is ... accepted good practice to enact clear guidelines for how new parties may become eligible for funding and to extend public funding beyond parties represented in ORG . A generous system for the determination of eligibility should be considered to ensure that voters are given the political alternatives necessary for a real choice . ”


Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

The applicant was born in DATE and lives in GPE . He is the author of a book titled “ Extraordinary War , Terror and NORP Guerrilla ” ( “ Özel Savaş Terör ve PERSON ” ) .

On DATE PERSON GPE , the then Minister of State brought a civil action for compensation against the applicant , before ORG . He claimed that the alleged defamatory remarks in the applicant ’s book constituted an attack on his reputation and requested that the court award him compensation of MONEY ( GPE ) for non - pecuniary damage .

During the proceedings the court evaluated the following passages :

“ In an interview I gave in GPE I commented on the “ CARDINAL DATE ” massacre and the possibility of a coup d’état during that period . It seems that a magazine carried out research following these assertions and reached some interesting conclusions .

According to the magazine , the Minister of ORG , PERSON , had established contacts with ORG ( Özel Harp Dairesi ) . He had been involved in the coup that was co - ordinated by General PERSON together with Generals PERSON , PERSON and PERSON . The names of these generals had appeared in several foreign and domestic newspapers where they were presented as the authors of the massacre carried out on DATE and of other provocative acts . The magazine interviewed Mr PERSON . He said the following :

– Some newspapers and magazines have been presenting you as the author or even the perpetrator of DATE of LOC massacre until DATE . You have never commented on those allegations for DATE .

Kilercioğlu : I never thought of replying . The ORG has everything . It has mechanisms . [ Those allegations ] have never bothered me .

– Comments regarding your involvement in DATE of May ” massacre were made with reference to an NORP newspaper . A periodical commented on your involvement in the contra guerrilla [ activities ] .

Kilercioğlu : The ORG has laws , it has courts . Under such conditions , would they have kept silent until now ? Everything has been done .

– Did you exercise your right to reply ?

Kilercioğlu : I do not remember .

As one can easily see , Mr GPE is disregarding the questions and making a big fuss . By not having exercised his right to reply and not having lodged a complaint with the judicial organs , he must have been aware of the fact that he was implicitly acknowledging these allegations against him . Especially , someone like him : an ex - general and a Minister of State .

Mr ORG answered another question :

“ I am the purest and the most innocent person that you could ever meet in life , ” he says . If a person is identifying himself like this , let ’s just leave the verdict to a doctor !

In an interview he gave after his retirement in DATE he said : “ As you know , there are groups in the army . They fight among themselves . We fought and lost . ” He is probably admitting to having belonged to the junta by identifying himself as a member of the “ group ” .

One can conclude from his statement that he had been a member of the junta . CARDINAL can also presume that the junta of General PERSON had had plans to overthrow PERSON ’s government . Then the question arises : How could PERSON appoint a minister who was involved in a junta against him ? Maybe PERSON ORG is CARDINAL of Mr PERSON ’s sins ?

Let ’s go back to ORG . Although he admitted to having belonged to a “ group of fighters ” , a number of newspapers , some business circles and ORG ) stood as protectors of ORG after his retirement . Undoubtedly , this was not due to his “ pure ” personality . It was more due to his presence in the fascist wing , which dedicated itself to protecting the interests of business circles . After his retirement he was ready to serve those business circles . I wonder : how will he be able to fight against corruption and illegal trade after having flown from ORG to the ministerial chair ? ”

NORP The applicant argued before the court that the passages concerning Mr GPE were quoted from an interview published by a magazine . He drew the court ’s attention to the fact that Mr GPE had never exercised his right of reply ; nor had he contested the publication of his statements in that magazine . The applicant claimed that he was exercising his right to freedom of expression in making those remarks .

On DATE the first instance court rejected PERSON ORG ’s claims . It decided that the passages in question were merely the applicant ’s criticisms of PERSON statements , in the light of his political beliefs , and they did not constitute an attack on the plaintiff ’s reputation .

Mr GPE appealed . On DATE ORG quashed the decision of the first instance court . It considered that the following extracts from the book went beyond the limits of acceptable criticism . It held that they were based on hearsay alone and they therefore amounted to an attack on the reputation of the plaintiff :

“ ... he is admitting to having belonged to the junta ... ” , “ ... his presence in the fascist wing , which dedicated itself to protecting the interests of business circles . ” , “ After his retirement he was ready to serve those business circles . I wonder : how will he be able to fight against corruption and illegal trade after having flown from ORG to the ministerial chair ? ... ”

ORG concluded that the plaintiff should be awarded compensation for non - pecuniary damage under LAW .

On DATE ORG rejected the applicant ’s request for rectification of the judgment .

On DATE , after having considered ORG decision , ORG decided to award Mr GPE the sum of CARDINAL as compensation for non - pecuniary damage , together with interest rate of PERCENT per annum running from DATE .

The applicant appealed . On DATE ORG quashed the decision of DATE on the ground that the amount of compensation awarded was disproportionate to the damage suffered by the plaintiff .

On DATE ORG considered that its decision of DATE was in accordance with the law and that the amount of compensation awarded was proportionate to the damage suffered by the plaintiff . It decided not to follow the decision of ORG .

Mr GPE lodged an appeal with ORG of ORG , which quashed the decision of ORG on DATE .

On DATE ORG awarded Mr GPE compensation in the amount of GPE CARDINAL for non - pecuniary damage , together with interest rate of PERCENT per annum running from DATE . Upon Mr ORG ’s request , the court also ordered the publication of its decision in a newspaper .

The applicant appealed . On DATE ORG upheld in part the judgment dated DATE . It considered that the amount of compensation awarded to the plaintiff was in accordance with law . However , the plaintiff ’s request to the first instance court asking for publication of its decision was not raised before ORG . It therefore quashed that part of the decision .

On DATE ORG followed ORG decision of DATE . The applicant was notified of this decision on DATE .

On DATE the applicant paid GPE CARDINAL to the plaintiff as compensation .

Article CARDINAL of the Code of Obligations provides as follows :

“ Any person who alleges that his personality rights have been illegally violated can claim compensation for non - pecuniary damage .

The judge shall take into account the parties’ socio - economic situation , their occupation and social status when determining the amount of compensation .

The judge may also decide on a form of redress other than compensation or may restrict himself to condemning the violation . He may also order the publication of the decision . ”


Preliminary objection allowed (ratione temporis)

Antonella Mularoni;Christos Rozakis;Corneliu Bîrsan;Egil Levits;Elisabeth Steiner;Françoise Tulkens;Giovanni Bonello;Ireneu Cabral Barreto;Jean-Paul Costa;John Hedigan;Lech Garlicki;Loukis Loucaides;Lucius Caflisch;Luzius Wildhaber;Mindia Ugrekhelidze;Nicolas Bratza;Peer Lorenzen;Renate Jaeger;Snejana Botoucharova;Stanislav Pavlovschi;Vladimiro Zagrebelsky

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

In DATE the applicant , together with her husband , acquired a specially protected tenancy ( stanarsko pravo ) of a flat in GPE . After her husband ’s death in DATE the applicant became the sole holder of the specially protected tenancy .

On DATE ORG came into force . It regulated the sale of publicly owned flats previously let under a specially protected tenancy .

On DATE the applicant went to visit her daughter who lived in GPE . She intended to stay with her daughter for DATE . The applicant locked the flat in GPE and left all her furniture and personal belongings in it . She asked a neighbour to pay the bills in her absence and to take care of the flat .

NORP However , by DATE armed conflict had escalated in GPE , resulting in severe travel difficulties in that area , including the town of GPE . From DATE , the town of GPE was exposed to constant shelling and the supply of electricity and water was disrupted for DATE .

The applicant submitted that in DATE the NORP authorities had stopped paying her war widow ’s pension and that the payments had resumed in DATE . The ORG submitted that the applicant ’s pension had been paid by ORG in GPE rather than ORG and that it was the GPE authorities which had stopped paying the pension in DATE .

According to the applicant , she also lost the right to medical insurance . The ORG maintained that her medical insurance had never been stopped or interrupted .

Given these circumstances , the applicant decided to remain in GPE .

NORP In DATE a certain PERSON , with his wife and CARDINAL children , broke into and occupied the applicant ’s flat in GPE . The applicant claimed that PERSON had been assisted by an official of the municipality who had provided him with a list of empty flats in GPE , including hers .

On DATE GPE ) brought a civil action against the applicant before ORG ( PERSON ) for termination of her specially protected tenancy on the ground that she had been absent from the flat for DATE without justified reason , contrary to section CARDINAL of LAW .

In her submissions to the domestic court , the applicant explained that she had been forced to stay with her daughter in GPE from DATE until DATE . She had not been able to return to ORG since she had no means of subsistence and no medical insurance and was in poor health . Furthermore , during her stay in GPE she had learned from her neighbour that PERSON had broken into her flat with his family . When she had enquired about her flat and her possessions in it , PERSON had threatened her over the telephone .

On DATE ORG terminated the applicant ’s specially protected tenancy . The court found that the applicant had left GPE on DATE and had not returned until DATE . It stated that during the relevant period the citizens of ORG had not been ordered to evacuate the town on account of the escalation of the armed conflict and that each citizen had had the choice to leave the town or to stay . On that basis the court found that the war in GPE could not justify the applicant ’s absence .

NORP The court did not accept the applicant ’s explanation that she had fallen ill during her stay in GPE and had been unable to travel . It was established that she had suffered from spinal arthrosis and diffuse osteoporosis for a long time . However , this had not affected her ability to travel . Even though her left shoulder had been dislocated on DATE , she had been able to travel following the immobilisation of the injured joint . Furthermore , by DATE she had already been absent from the flat for DATE .

The applicant ’s further explanation that she had stopped receiving her pension in DATE and thus had been left without any means of subsistence was not accepted by the court as a justified reason for not returning to ORG . It took the view that the applicant ’s daughter could have sent her money . Therefore , the court concluded that the applicant ’s reasons for not having lived in the flat were not justified .

Following an appeal by the applicant , the judgment was quashed by ORG ( Županijski sud u ORG ) on DATE .

ORG found that the court of first instance had not given due consideration to the applicant ’s personal circumstances , namely her age and poor health and the fact that she had lost her pension and lived alone in GPE . Furthermore , the applicant ’s decision to prolong her stay in GPE should have been carefully assessed against the background of the circumstances at the material time , namely that ORG had been exposed to DATE shelling and had not had a regular supply of water or electricity , and that third parties had occupied the applicant ’s flat .

The case was remitted to the first - instance court .

In the resumed proceedings , on DATE ORG again ruled in favour of the municipality and terminated the applicant ’s specially protected tenancy . It observed that she had been absent from the flat for DATE without justified reason and repeated in substance the findings of the judgment of CARDINAL DATE .

The applicant appealed . On DATE ORG reversed the first - instance judgment and dismissed the municipality ’s claim . It found that the escalation of the war and the applicant ’s personal circumstances justified her absence from the flat .

On DATE the GPE lodged an appeal on points of law ( revizija ) with ORG ( PERSON ) .

On DATE ORG allowed the appeal , reversed ORG judgment and upheld the judgment of ORG . It found that the reasons submitted by the applicant for her absence from the flat were not justified . The relevant part of ORG judgment read as follows :

“ During the aggression against GPE , living conditions were the same for all citizens of GPE and , as rightly submitted by the plaintiff , it is neither possible nor legitimate to separate the defendant ’s case from the context of that aggression . To hold the contrary would mean assessing her case in isolation from all of the circumstances which characterised that time and determined the conduct of each individual .

Contrary to the appellate court , this ORG , assessing in that context the defendant ’s decision not to return to ORG during the aggression but to stay in GPE , considers the non - use of the flat unjustified . The factual findings made in the case reveal that , in view of her state of health and the available travel connections , the defendant was able to come to GPE ; her health would not have deteriorated because of her stay in GPE ; and she could have taken care of herself . The assumption that she would have had to make a considerable mental and physical effort in order to provide for her basic living needs ( all the citizens of GPE who remained in the town , from the youngest to the oldest , were exposed to the same living conditions ) does not justify her failure to return to GPE and , accordingly , does not constitute a justified reason for the non - use of the flat . ”

On DATE the applicant lodged a constitutional complaint with ORG ( Ustavni sud PERSON ) . She claimed that her rights to respect for her home and property had been violated and that she had been deprived of her right to a fair hearing .

On DATE the Convention came into force in respect of GPE .

On DATE ORG dismissed the applicant ’s constitutional complaint . It found that ORG had correctly applied the relevant legal provisions to the facts established by the lower courts when holding that the applicant ’s absence from the flat for DATE had been unjustified . ORG concluded that the applicant ’s constitutional rights had not been violated .

The relevant provisions of the DATE LAW ( Ustav PERSON , ORG nos . DATE and CARDINAL ) , as in force at the material time , read as follows :

“ Rights and freedoms may be restricted only by law to protect the rights and freedoms of others , the legal order , public morals or health . ”

“ CARDINAL . The home is inviolable . ”

“ CARDINAL . The right to property is guaranteed .

Property implies duties . Holders of the title to property and property users shall have a duty to contribute to the general welfare . ”

“ CARDINAL . Only certain provisions of a statute may have retroactive effects . ”

“ International agreements concluded and ratified in accordance with the LAW and made public shall be part of the Republic ’s internal legal order and shall be [ hierarchically ] superior to the [ domestic ] statutes . ”

The relevant part of LAW on LAW ( Ustavni zakon o PERSON , ORG no . CARDINAL/CARDINAL ) , as in force at the material time , provided that individuals or legal entities could lodge a constitutional complaint with ORG if they considered that a judicial or administrative decision , or a decision of a legal entity invested with public authority , had violated their human rights or fundamental freedoms guaranteed by LAW ( section CARDINAL ) . A constitutional complaint , in principle , did not suspend the implementation of the impugned decision ( section CARDINAL ) . If ORG allowed a constitutional complaint , it had to quash the impugned decision and remit the case to the competent authority for a new decision ( section DATE ) .

The Act on Ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms and Protocols Nos . CARDINAL , CARDINAL , DATE , DATE and DATE to the Convention ( Zakon o potvrđivanju GPE za zaštitu ljudskih prava i temeljnih sloboda i Protokola br . CARDINAL , CARDINAL , DATE , CARDINAL i CARDINAL uz GPE za zaštitu ljudskih prava i temeljnih sloboda , ORG , no . CARDINAL/CARDINAL ) came into force on DATE . It incorporated the ORG as an international treaty into the NORP legal system .

LAW ( Zakon o stambenim odnosima , ORG nos . DATE , CARDINAL/CARDINAL , DATE and CARDINAL/CARDINAL ) , as in force at the material time , provided that a holder of a specially protected tenancy ( “ the tenant ” ) had a right to permanent use of the flat for living purposes , to sublet part of it to someone else and to participate in the administration of the building in which the flat was located . The LAW also provided that , in agreement with the provider of the flat , the tenant could exchange it for another flat and , exceptionally , use part of it for business purposes .

Section CARDINAL provided that the tenant ’s cohabitants could acquire the tenancy after the tenant ’s death .

Section CARDINAL read as follows :

“ ( CARDINAL ) A specially protected tenancy may be terminated if the tenant ... ceases to occupy the flat for an uninterrupted period exceeding DATE .

( CARDINAL ) A specially protected tenancy shall not be terminated under the provisions of subsection ( CARDINAL ) of this section in respect of a person who does not use the flat on account of undergoing medical treatment , performance of military service or other justified reasons . ”

NORP Under section CARDINAL ) the provider of the flat had to bring a civil action in order to terminate the specially protected tenancy . The tenancy was terminated as soon as the court ’s judgment , upholding the claim of the provider of the flat , became res judicata ( see , inter alia , ORG decision no . CARDINAL of DATE ) .

In decisions ORG . Rev-CARDINAL/CARDINAL - CARDINAL of DATE , NORP of DATE and Rev-CARDINAL/CARDINAL - CARDINAL of DATE , ORG interpreted section CARDINAL(CARDINAL ) of LAW as follows :

“ War events per se , without any particular reasons rendering use of the flat impossible , do not constitute a justified reason for not using it . ”

In a series of decisions ( for example , in cases nos . CARDINAL of DATE , ORG - CARDINAL of DATE , CARDINAL of DATE , Rev-CARDINAL/CARDINAL - CARDINAL of DATE and CARDINAL of DATE ) , starting with decision no . Rev-CARDINAL/CARDINAL - CARDINAL of CARDINAL DATE , ORG interpreted another aspect of section CARDINAL ) of LAW as follows :

“ The fact that a flat that is not being used by its tenant is illegally occupied by a third person does not , per se , make the non - use [ of the flat by the tenant ] justified . In other words , if the tenant fails to take the appropriate steps to regain possession of the flat within the statutory time - limits set forth in section CARDINAL(CARDINAL ) of LAW ... , then the [ illegal occupation of the flat by a third person ] is not an obstacle to the termination of the specially protected tenancy . ”

The Specially Protected Tenancies ( Sale to Occupier ) Act ( Zakon o prodaji stanova na kojima postoji stanarsko pravo , Official Gazette no . CARDINAL ) , as in force at the material time , entitled the holder of a specially protected tenancy of a publicly owned flat to purchase it from the provider under favourable conditions .

LAW ( Zakon o parničnom postupku , ORG nos . CARDINAL and DATE ) , as in force at the material time , provided that an appeal on points of law ( revizija ) lay to ORG against second - instance judgments .

In cases where a first - instance judgment had been reversed by the second - instance judgment but ORG reversed the latter and upheld the former , the first - instance judgment became res judicata when ORG delivered its decision .

Article CARDINAL of LAW on LAW of DATE ( “ the Vienna Convention ” ) provides :

“ Unless a different intention appears from the treaty or is otherwise established , its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before DATE of the entry into force of the treaty with respect to that party . ”

The Permanent Court of International Justice ( ORG ) has dealt with the issue of its jurisdiction ratione temporis in several cases . In the case of Phosphates in GPE ( Preliminary Objections ) between GPE and GPE , ORG maintained , inter alia , that the dispossession of certain NORP nationals resulting from the decision of ORG of DATE , and the denial of justice that had followed , were inconsistent with international obligations incumbent on GPE . The ratification of the declaration by which GPE accepted the compulsory jurisdiction of the ORG was filed on DATE . In its judgment of DATE ( ORG , Series A / B , no . CARDINAL , pp . CARDINAL ) , when examining GPE ’s preliminary objection based on the lack of jurisdiction ratione temporis , the ORG held :

“ The NORP Government bases its objection on the following passage in its declaration : ‘ ... in any disputes which may arise after the ratification of the present declaration with regard to situations or facts subsequent to this ratification.’ [ p. CARDINAL ]

[ The ORG ’s compulsory jurisdiction ] only exists within the limits within which it has been accepted . In this case , the terms on which the objection ratione temporis submitted by ORG is founded , are perfectly clear : the only situations or facts falling under the compulsory jurisdiction are those which are subsequent to the ratification and with regard to which the dispute arose , that is to say , those which must be considered as being the source of the dispute . [ p. CARDINAL ]

... The situations and the facts which form the subject of the limitation ratione temporis have to be considered from the point of view both of their date in relation to the date of ratification and of their connection with the birth of the dispute . Situations or facts subsequent to the ratification could serve to found the ORG ’s compulsory jurisdiction only if it was with regard to them that the dispute arose . [ p. CARDINAL ]

[ The ] decision of ORG , owing to its date , falls outside the ORG ’s jurisdiction . ORG has sought to avert this consequence by arguing ... that the decision of DATE constituted only an uncompleted violation of international law ; that this violation only became definitive as a result of certain acts subsequent to the crucial date and of the final refusal to remedy in any way the situation created in DATE , and that these acts gave rise to the dispute between the CARDINAL Governments . [ p. CARDINAL ]

The ORG can not regard the denial of justice alleged by ORG as a factor giving rise to the present dispute . In its ORG , ORG has represented the decision of ORG as an unlawful international act ... That being so , it is in this decision that we should look for the violation of international law – a definitive act which would , by itself , directly involve international responsibility . This act being attributable to the ORG and described as contrary to the treaty right of another ORG , international responsibility would be established immediately as between GPE . In these circumstances the alleged denial of justice ... merely results in allowing the unlawful act to subsist . It exercises no influence either on the accomplishment of the act or on the responsibility ensuing from it . [ p. CARDINAL ]

... [ T]he complaint of a denial of justice can not be separated from the criticism which ORG directs against the decision of ORG of DATE , for ORG could not regard the denial of justice as established unless it had first satisfied itself as to the existence of the rights of the private citizens alleged to have been refused judicial protection . But the ORG could not reach such a conclusion without calling in question the decision of ORG of DATE . It follows that an examination of the justice of this complaint could not be undertaken without extending the ORG ’s jurisdiction to a fact which , by reason of its date , is not subject thereto .

In conclusion , the ORG finds that the dispute submitted to it by ORG ... did not arise with regard to situations or facts subsequent to the ratification of the acceptance by GPE of the compulsory jurisdiction , and that in consequence it has no jurisdiction to adjudicate on this dispute . [ pp . CARDINAL ] ”

The issue of temporal jurisdiction arose also in a number of cases before ORG ( ICJ ) . In Certain Property ( GPE v. GPE ) , Preliminary Objections , GPE maintained that certain decisions by NORP courts delivered in the period DATE declaring inadmissible the action of PERSON of GPE for restitution of a painting , which had been confiscated by GPE on DATE under “ the Beneš Decrees ” , were in breach of international law . In these inadmissibility decisions the NORP courts relied on the Convention on the Settlement of Matters Arising out of the War and the Occupation , signed in DATE , as amended in DATE , which had come into force on CARDINAL DATE ( “ the Settlement Convention ” ) . In order to found the jurisdiction of the ICJ , GPE relied in its LAW DATE , which came into force between GPE and GPE on DATE . In its judgment of DATE , when examining GPE ’s preliminary objection based on the lack of jurisdiction ratione temporis , the ICJ held :

“ CARDINAL . The ORG will now consider whether the present dispute has its source or real cause in the facts or situations which occurred in DATE in GPE and , particularly , in the decisions by the NORP courts in the PERSON Painting case , or whether its source or real cause is the PERSON Decrees under which the painting was confiscated and ORG which the NORP courts invoked as ground for declaring themselves without jurisdiction to hear that case .

The ORG observes that it is not contested that the present dispute was triggered by the decisions of the NORP courts in the aforementioned case . This conclusion does not , however , dispose of the question the ORG is called upon to decide , for under LAW , the critical issue is not the date when the dispute arose , but the date of the facts or situations in relation to which the dispute arose .

... The Court ... finds that the decisions of the NORP courts in the PERSON van Laer Painting case can not be separated from ORG and the Beneš Decrees , and that these decisions can not consequently be considered as the source or real cause of the dispute between GPE and GPE .

The ORG concludes that , although these proceedings were instituted by GPE as a result of decisions by NORP courts regarding a painting by PERSON van Laer , these events have their source in specific measures taken by GPE in DATE , which led to the confiscation of property owned by some GPE nationals , including Prince PERSON of GPE , as well as in the special regime created by ORG . The decisions of the NORP courts in DATE dismissing the claim filed by Prince PERSON of GPE for the return of the painting to him were taken on the basis of LAW , of ORG . While these decisions triggered the dispute between GPE and GPE , the source or real cause of the dispute is to be found in ORG and the ORG Decrees . In light of the provisions of LAW a ) of LAW for the Peaceful Settlement of Disputes , GPE ’s ... preliminary objection must therefore be upheld . ”

The relevant provisions of ORG on ORG , as adopted by ORG on DATE ( for the text of ORG and Commentary , see Report of ORG on the Work of its MONEY , ORG of ORG , CARDINAL Session , Supplement no . CARDINAL ( A/CARDINAL/CARDINAL ) , chap . PERSON and chap . IV.E.CARDINAL , pp . CARDINAL and CARDINAL - CARDINAL ) read as follows :

“ An act of a ORG does not constitute a breach of an international obligation unless the ORG is bound by the obligation in question at the time the act occurs . ”

“ CARDINAL . The breach of an international obligation by an act of a ORG not having a continuing character occurs at the moment when the act is performed , even if its effects continue .

NORP The breach of an international obligation by an act of a State having a continuing character extends over the entire period during which the act continues and remains not in conformity with the international obligation .

The breach of an international obligation requiring a ORG to prevent a given event occurs when the event occurs and extends over the entire period during which the event continues and remains not in conformity with that obligation . ”

DATE . On DATE , when depositing the instrument of ratification of the Convention with the Secretary General of ORG , the NORP Minister for ORG made the following declarations ( contained in the instrument of ratification ) :

“ GPE recognises for an indefinite period of time , in accordance with LAW No . CARDINAL and LAW No . CARDINAL , the competence of ORG to deal with petitions addressed to the Secretary General of ORG by any person , non - governmental organisation or group of individuals claiming to be the victim of a violation of the rights set forth in the LAW and its Protocols , where the facts of the alleged violation of these rights occur after the LAW and its Protocols have come into force in respect of GPE .

GPE recognises for an indefinite period of time , in accordance with LAW , LAW No . CARDINAL and LAW No . CARDINAL , as compulsory ipso facto and without special agreement the jurisdiction of ORG in all matters concerning the interpretation and application of the LAW and its Protocols and relating to facts occurring after the LAW and its Protocols have come into force in respect of GPE . ”


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)

David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in DATE and , having been sentenced by the NORP courts and subsequently transferred to GPE , is currently serving a prison sentence in GPE .

On DATE the applicant was arrested on suspicion of murder .

On DATE a judge authorised the applicant ’s remand in custody , citing the following reasons : the applicant might abscond and impede the investigation ; and in view of the severity of the offence , his prior convictions and his absence of a registered place of residence .

On DATE another judge authorised the applicant ’s detention for DATE , citing the following reasons : the gravity of the offence , the circumstances surrounding it and the applicant ’s character . The judge saw no reason to change the preventive measure imposed on the applicant .

On DATE the same judge authorised the applicant ’s detention for a further DATE ( until DATE ) , citing the following reasons : the applicant ’s character and the need to carry out a forensic psychiatric examination . The judge saw no reason to change the preventive measure imposed on the applicant . The applicant complained about this decision to a prosecutor and pointed out that he had a wife and minor children who were dependent on him .

On DATE the prosecutor examined his complaint and rejected it on the grounds that the applicant was charged with a serious crime . His character ( the applicant ’s CARDINAL prior convictions were noted ) and his family responsibilities had not dissuaded him from committing a serious crime . The applicant lodged another complaint challenging his preventive measure ; the same prosecutor rejected it on DATE .

On DATE another judge authorised the applicant ’s detention for DATE , citing the following reasons : the applicant ’s character

On DATE the final indictment was issued against the applicant .

On DATE the case file was sent for trial to ORG .

On DATE the applicant was committed for trial and the first hearing was scheduled for DATE . The preventive measure imposed on the applicant ( remand in custody ) remained unchanged ; no reasons were given .

No more detention orders were issued in respect of the applicant .

DATE the trial hearings before ORG took place , and the trial was concluded on the latter date .

On DATE ORG pronounced the judgment . It convicted the applicant of aggravated murder and hooliganism ; he was sentenced to CARDINAL years’ imprisonment . As an additional penalty the court ordered his expulsion from GPE .

On DATE the appellate court upheld the ruling of the firstinstance court .

On DATE the applicant ’s appeal on points of law was dismissed .

On an unspecified date the applicant was transferred to a prison in NORP to serve his sentence , where he was detained until DATE .

On several occasions the prison authorities refused long - term visits in prison by the applicant ’s partner , PERSON , and her daughter , PERSON , born in DATE , who he considered to be his only family in GPE . The applicant lodged complaints against these refusals .

On DATE the administration of Daugavpils Prison referred to section CARDINAL of LAW and observed that the applicant had a right to receive a long - term visit by PERSON if he was noted as her father on her birth certificate . The applicant could not receive a longterm visit from PERSON because she was not considered to be a close family member . It appears that the applicant further complained to ORG vietu pārvalde ) and the NORP prison administration informed that authority that the applicant had not received any short - term visits from PERSON during his imprisonment .

According to the Government , on DATE the applicant requested a long - term visit by his partner and her daughter . They did not have more information concerning this request .

On DATE the applicant requested a long - term visit by his partner and her daughter . In reply , he received the following statement written on his request : “ You have received an answer in writing in this respect ” .

According to the applicant , he received a short - term visit from PERSON and PERSON in NORP prison in DATE .

The applicant was refused a short - term visit during his admission to ORG in GPE . He complained about the refusal and on DATE he received a reply that only tuberculosis patients were allowed to receive short - term visits with the permission of a doctor , or seriously ill patients with the permission of the head of the hospital .

According to the Government , on CARDINAL DATE the applicant requested another long - term visit by his partner and her daughter . On DATE this request was refused , given that PERSON was not a “ close family member ” of his within the meaning of section CARDINAL of LAW . The applicant was informed that he could be visited by PERSON if he was recorded as her father on her birth certificate .

Subsequently , a complaint by the applicant concerning long - term visits was accepted for review by the ORG ’s office .

On DATE the ORG delivered his opinion , which was not binding on the domestic authorities . He noted that the application of section CARDINAL of LAW was not uniform among the domestic authorities , but that in FAC , in particular , long - term visits were often refused in the form of a simple reply using vague phrases such as “ to be refused in accordance with the law ” or “ impossible to determine the visit ’s usefulness ” . The refusal in the applicant ’s case had been given in CARDINAL sentence , informing him that PERSON was not considered to be a close family member of his . No other options had been considered , such as , for example , whether the applicant could receive a long - term visit by PERSON in another capacity ( and not only on the basis of their relationship centred on PERSON ) . No individual assessment had been made in his case , which had breached the rules of administrative procedure .

On the one hand , the ORG observed that even if the applicant had complained to ORG and the administrative courts about the refusal of long - term visits , it was most likely that he would not have been granted such visits ; rather , he could only have received compensation . On the other hand , the ORG informed the applicant that he could lodge a complaint with ORG ( PERSON tiesa ) about the compliance of the legal provision concerning such longterm visits with LAW ( PERSON ) .

On DATE the applicant lodged a complaint with ORG . By a decision of DATE it was dismissed on formal grounds for non - compliance with the applicable admissibility criteria .

On DATE the applicant forwarded a complaint to ORG , which it received on DATE , about the refusals by the administration of FAC to allow long - term visits by his partner and her daughter . He claimed that had been told orally that visits by them would not be allowed , and he considered this blanket refusal to be in violation of LAW . He pointed out that he had not received any long - term visits since his conviction .

On DATE the applicant applied to the administrative courts with his complaint concerning long - term visits .

On DATE the ORG exempted the applicant from the payment of court fees and admitted the complaint for examination in part , in so far as it concerned an action of a public authority ( faktiskā rīcība ) ( namely the refusal to allow long - term visits by PERSON and PERSON ) . The applicant ’s compensation claim for CARDINAL NORP lati ( ORG ) was not admitted , as he had not lodged such a claim with ORG ( in contrast to his complaint concerning an action of a public authority ) . The applicant lodged an ancillary complaint against this decision with ORG , which was rejected on CARDINAL DATE .

On DATE ORG examined and dismissed the applicant ’s complaint . The applicant was present during the hearing and submitted that his relationship with PERSON and PERSON had broken down owing to the refusal by the prison authorities to allow long - term visits . The district court found that the applicant had on numerous occasions asked for permission to receive long - term visits by PERSON and PERSON It considered that the authorities’ refusals to allow such visits had constituted an interference with the applicant ’s rights under LAW and as also established by LAW . Notwithstanding that , the district court held as follows :

“ The court notes that the applicant could prove his father - daughter relationship by showing the birth certificate of PERSON , where he is recorded as her father . The defendant [ ORG ] confirmed during the hearing that the applicant could receive a long - term visit by his daughter , if he produced her birth certificate . The applicant , for his part , considered that he did not need to prove anything .

The court finds that the prison administration has not set an insurmountable obstacle by asking the applicant to provide documents attesting to his family relationships . The case file shows that the applicant has received several short - term visits by his partner , PERSON , and her daughter , PERSON , during which they could [ in principle ] have complied with the formal requirement to show PERSON ’s birth certificate in order to receive a longterm visit [ by her ] .

In view of the above , the court concludes that the applicant and the people from whom he has asked to receive a long - term visit have not taken minimal steps to prove the applicant ’s relationship with PERSON This created doubts that the applicant had a family relationship with PERSON Thus the defendant ’s refusal to allow long - term visits by PERSON and PERSON was justified . ”

The applicant lodged an appeal against this ruling , which was refused on several occasions on formal grounds ( failure to pay court fees and failure to provide a translation of the statement of appeal in NORP ) . After several unsuccessful ancillary complaints about these procedural decisions , on DATE ORG examined his appeal against the first - instance court ’s refusal to exempt him from the payment of court fees . The case was sent back to the first - instance court to decide on the exemption .

On DATE ORG partially exempted the applicant from the payment of court fees for an appeal and set a time - limit for payment of the reduced court fees in the amount of ORG . This decision was sent to the applicant ’s address in prison in GPE , as he had not informed the district court that he had been transferred to a prison in GPE ( see below ) .

On DATE ORG found that the applicant had not paid the reduced court fees for lodging an appeal and had also not informed it of his transfer to another prison . As the applicant had failed to rectify the procedural shortcomings in his appeal ( he had not paid the reduced court fees ) , his appeal against the CARDINAL DATE ruling was therefore considered as not submitted . This decision took effect on DATE , as the applicant did not lodge an ancillary complaint against it on time .

On DATE the applicant asked to be transferred to GPE to continue serving his sentence there .

On DATE the applicant was informed that a request had been sent to the NORP authorities in accordance with applicable law .

On DATE the applicant was informed that the NORP authorities had accepted the request and that he would be transferred to GPE to continue serving his sentence .

On DATE the applicant was transferred to a prison in GPE , in view of his scheduled transfer to GPE .

On DATE the applicant was handed over to the NORP authorities at FAC .

On DATE the applicant informed the ORG that he intended to pursue his application in GPE .

A full description of the law and practice as concerns pre - trial detention at the relevant time may be found in GPE v. GPE ( no . CARDINAL/CARDINAL , § § CARDINAL , ECHR CARDINAL ( extracts ) ) and PERSON v. GPE ( no . CARDINAL , § § DATE , DATE ) .

Section CARDINAL of LAW , concerning visits in prison , can be found in GPE v. GPE ( no . CARDINAL , § DATE , DATE ) .

With legislative amendments that took effect on CARDINAL DATE , that provision now reads :

“ The administration of a prison may also authorise long - term visits by another individual , provided that prior to his or her imprisonment the convicted person had a common household or a child with that individual . ”

The Law of Administrative Procedure ( ORG procesa likums ) took effect on DATE . It provides for the right to challenge administrative acts ( administratīvais akts ) and actions of a public authority ( faktiskā rīcība ) before the administrative courts .


MANAS AND MANASOVA v. THE CZECH REPUBLIC

Javier Borrego Borrego;Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych

The applicants , Mr PERSON and PERSON , are CARDINAL NORP nationals who were born in DATE and DATE respectively , and live in GPE .

On DATE ORG ( krajský obchodní soud ) declared Wall Street , spol . s r.o . bankrupt , appointed a trustee in bankruptcy ( správce konkurzní podstaty ) and invited the company ’s creditors to submit and prove their claims .

On DATE the applicants submitted their claims of CZK CARDINAL ( ORG CARDINAL,CARDINAL ) .

In a letter of CARDINAL DATE the ORG in bankruptcy informed the applicants that their claims had been confirmed .

In reply to the ORG complaint of CARDINAL DATE about delays in the proceedings , the vice - president of ORG ( městský soud ) , to which the case had been transferred , admitted that the bankruptcy proceedings had been lengthy .

On DATE ORG invited the trustee in bankruptcy to complete , clarify and prove a number of facts relating to the bankruptcy proceedings .

On DATE ORG approved a final report on the realisation of the assets in bankruptcy . On an unspecified date in DATE ORG upheld the approval .

On DATE the applicants applied for compensation pursuant to Act no . CARDINAL/CARDINAL as amended . In a letter of CARDINAL DATE ORG informed them that their application had been accepted , and that a finding of a violation of their right to a hearing within a reasonable time constituted in itself sufficient satisfaction for pecuniary and non - pecuniary damage they might have sustained .

On DATE the applicants informed the Registry that they did not intend to turn to a court under section CARDINAL(CARDINAL ) of Act no . CARDINAL/CARDINAL as amended .

The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the ORG ’s decision in the case of PERSON v. GPE , no . MONEY ( dec . ) , § § CARDINAL - CARDINAL , DATE ) .