Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Civil rights and obligations;Dispute;Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Civil rights and obligations;Dispute;Reasonable time);No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-2 - Presumption of innocence);Pecuniary damage - claim dismissed (Article 41 - Causal link;Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in Vinkovci .

On DATE the ORG Attorney 's Office ( Općinsko državno odvjetništvo u Vukovaru ) indicted the applicant in ORG ( PERSON ORG ) of the criminal offence of abuse of position and authority ( zlouporaba položaja i ovlasti ) . On DATE a representative of ORG withdrew the charges against the applicant , stating that the facts of the case did not show that the applicant had committed any criminal offence liable to public prosecution . Hence , ORG dismissed the charges against him on DATE . The relevant part of this judgment reads as follows :

“ In respect of the defendant PERSON ...

Pursuant to LAW ,

the indictment is dismissed

that he :

on TIME DATE , in GPE , in his capacity as vice - chief of traffic crime - scene investigation and as chief constable of ORG , after [ having received ] a report of a road accident caused by police officer PERSON while driving a police car ... [ and ] with the intention of helping PERSON avoid responsibility [ for the accident ] and to conceal the whole incident , did not allow the obligatory on - site inspection to be carried out although he had personally visited the site of the accident and ordered the officers in charge , PERSON and PERSON , not to register the said accident in the events register . He certified the register with his signature , thus confirming that during the shift there had been no incidents to be registered , although he knew that it was not true

Reasoning

At a hearing held on DATE the Deputy ORG Attorney , ORG , withdrew the charges against the defendant ... on grounds that he had not committed the said criminal offence , or any other criminal offence liable to public prosecution .

On DATE a criminalist of ORG FAC postaja ORG ) drew up a report on the events of TIME QUANTITY to DATE . On DATE the applicant was removed from his post . On DATE the Vukovar - Srijemska Police Department lodged a request with ORG that disciplinary proceedings against the applicant be instituted . On DATE the applicant made his statement to an officer of the Vukovar - Srijemska Police Department ( FAC uprava vukovarko srijemska ) , in the presence of his counsel . However , subsequently no disciplinary proceedings were instituted against the applicant . Instead , in a decision of DATE the Minister of the ORG ( GPE unutarnjih poslova PERSON ) , on the basis of the police reports and the written record of the applicant 's statement given on DATE , dismissed the applicant with effect from DATE on the ground that in respect of the road accident which had occurred on TIME DATE he had acted contrary to his duties as a policeman . The applicant lodged an appeal on DATE and the impugned decision was quashed by ORG Upravni sud PERSON ) on DATE .

NORP In a fresh decision of the Minister of the Interior on DATE the applicant was again dismissed with effect from DATE . It was found that on TIME DATE , in his capacity as vice - chief for traffic crime - scene investigation and as chief constable of ORG , he had disregarded his duties in relation to a road accident caused by a police car . After arriving at the scene , the applicant had let those implicated leave the scene of the accident without calling the crime - scene team in order to carry out an on - site inspection . He had further failed to institute adequate proceedings against the perpetrator of the road misdemeanour . He had also instructed the police officers involved to make a deal concerning compensation to the injured party . Furthermore , he had signed the events register , in respect of that night , stating that there had been no incidents to report . Afterwards , he had allowed and arranged for the unauthorised repair of the police car .

The relevant part of the decision reads as follows :

“ As a police officer the defendant ... was under a duty to control and supervise the legality of the acts of other police officers . However , as to the incident in question he acted entirely contrary to this duty and thus allowed the person who had caused the road accident in question to avoid responsibility for it , which clearly shows a disregard for his duties ...

Furthermore , the defendant violated laws regulating the [ police ] service in that he acted contrary to section CARDINAL of LAW ( Zakon o sigurnosti prometa na cestama , Official Gazette no . CARDINAL/CARDINAL ) which requires drivers who have been implicated in a road accident causing lesser material damage to vehicles to immediately remove those vehicles from the road in order to enable the unhindered movement of traffic and to inform the nearest police station of the accident and to wait for the arrival of an official authorised to carry out an on - site inspection .

Section CARDINAL ( CARDINAL ) of LAW ( Zakon o policiji ) provides that obstruction of duties under paragraph CARDINAL of that section amounts to a transgression of police authority or disregard for the same when a police officer is , according to that LAW , obliged to apply [ his authority , the obstruction ] of which has then caused damage to natural or legal persons or ORG bodies .

As to the case in question , it has been clearly established that the defendant , as a police officer , failed to carry out his police duties in the manner prescribed by LAW .

It has also been clearly established that [ this ] caused damage , both non - pecuniary , ( to the reputation of the police ) , and pecuniary , by causing delays in the proceedings , the lack of sanctions against the perpetrator of a traffic misdemeanour as well as damage to the police vehicle which was not repaired in an adequate manner .

The material damage was caused by a transgression and disregard of police duties by PERSON in that he failed to enforce a fine , in accordance with LAW , against the driver of the police car , GPE ... ”

On DATE the applicant appealed against the above decision to ORG , challenging the decision on his dismissal . He argued that his right to be presumed innocent had been violated because in the criminal proceedings against him the charges against him which concerned the same facts as those that had served as a basis for his dismissal had been withdrawn . He further complained that prior to adopting a decision on his dismissal ORG had not conducted any proceedings and had not given him an opportunity to be heard in these proceedings , to question witnesses or adduce evidence . He did not ask for an oral hearing before ORG .

On CARDINAL DATE ORG upheld the decision on the applicant 's dismissal . In his subsequent constitutional complaint of CARDINAL DATE the applicant complained , inter alia , that his right to a fair trial and his right to be presumed innocent had been infringed . On CARDINAL DATE ORG ( ORG ) dismissed the complaint as being ill - founded . The relevant part of the decision reads :

“ LAW provides :

Everyone is innocent and no one shall hold him or her guilty of a criminal offence until proved so in a final judgment by a court of law .

The case - file shows that the decision on dismissal and the judgment of ORG are not based on the applicant 's criminal responsibility for a criminal offence , but on the finding that the applicant had transgressed his police authority and disregarded his duty , which resulted in a breach of the regulations on the [ police ] service and a lack of compliance with the duties within the competence of ORG .

Relying on the principles established in its decision no . U - III-CARDINAL/CARDINAL of DATE ( ORG nos . CARDINAL and CARDINAL/CARDINAL ) , ORG finds that , despite his acquittal in the criminal proceedings against him , the applicant 's dismissal on the grounds under LAW of LAW did not violate his constitutional right under LAW . ”

Section CARDINAL of LAW ( Zakon o policiji , ORG no . CARDINAL ) reads :

The Minister of the ORG ... adopts a decision on dismissal from service after obtaining the opinion of the [ officer 's in question ] hierarchical superior .

There is no right to an appeal against the decision under paragraph CARDINAL . Instead , administrative proceedings may be instituted before ORG . ”

The Administrative Disputes Act ( Zakon o upravnim sporovima , ORG nos . CARDINAL , CARDINAL/CARDINAL and DATE ) regulates the procedure before ORG . Section CARDINAL provides as follows :

“ The court decides administrative disputes in a non - public session .

The court may decide to hold an oral hearing on account of the complexity of the dispute or if it otherwise finds it useful for better clarification of the matter at issue .

For the same reasons a party may ask that an oral hearing be held . ”

The Constitutional Court 's decision no . U - III-CARDINAL/CARDINAL of DATE ( ORG nos . CARDINAL and CARDINAL/CARDINAL ) , in so far as relevant , reads :

“ The case - file shows that the judgments of the disciplinary courts and ORG did not rely on the applicant 's criminal responsibility for a criminal offence , but found the applicant 's conduct while not on duty , by which he had violated the rules of service and committed a grave breach of work discipline , improper .

The responsibility for grave breaches of work discipline in disciplinary proceedings may be established without a decision of a criminal court , irrespective of the possibility that a breach of work discipline may at the same time amount to a criminal offence . In disciplinary proceedings the features of a breach of work discipline are established and do not require that at the same time the requirements of a criminal offence are met . In that respect disciplinary responsibility is broader than criminal responsibility .

Therefore , despite his acquittal in the criminal proceedings against him , finding the applicant guilty of committing a grave breach of work discipline did not violate his constitutional right under LAW . ”


CASE OF YOUNG, JAMES AND WEBSTER v. THE UNITED KINGDOM

Violation of Art. 11;No separate issue under Art. 9 and 10;No violation of Art. 13;Just satisfaction reserved

Mr. PERSON , Mr. PERSON and Mr. PERSON are former employees of ORG ( " British Rail " ) . In DATE , a " closed shop " agreement was concluded between ORG and CARDINAL trade unions , providing that thenceforth membership of CARDINAL of those unions was a condition of employment . The applicants failed to satisfy this condition and were dismissed in DATE . They alleged that the treatment to which they had been subjected gave rise to violations of Articles CARDINAL , CARDINAL , DATE and DATE ( article CARDINAL , article CARDINAL , article CARDINAL , article CARDINAL ) of the Convention .

In general

In essence , a closed shop is an undertaking or workplace in which , as a result of an agreement or arrangement between CARDINAL or more trade unions and CARDINAL or more employers or ORG associations , employees of a certain class are in practice required to be or become members of a specified union . The employer is not under any legal obligation to consult or obtain the consent of individual employees directly before such an agreement or arrangement is put into effect . Closed shop agreements and arrangements vary considerably in both their form and their content ; one distinction that is often drawn is that between the " pre - entry " shop ( the employee must join the union before engaged ) and the " post - entry " shop ( he must join within a reasonable time after being engaged ) , the latter being more common .

In GPE , the institution of the closed shop is of very long standing . In DATE , closed shop arrangements have become more formalised and the number of employees covered thereby has increased ( CARDINAL in the DATE ’s and CARDINAL in DATE , approximately ) . Recent surveys suggest that in many cases the obligation to join a specified union does not extend to existing non - union employees .

The law in force until DATE

There was no legislation explicitly directed to the practice of the closed shop until DATE . Nevertheless , the courts had since the DATE ’s recognised the legitimacy of the trade union object of advancing the union ’s interests even to the point of enforcing the dismissal , or a ban on the hiring , of non - union employees . However , it was an unlawful conspiracy at common law to pursue a closed shop against individuals beyond the point which the courts regarded as the defence of genuine trade union interests ( GPE v. PERSON [ DATE ] CARDINAL All England Law Reports CARDINAL ; ORG v. Fry [ DATE ] CARDINAL All England Law Reports CARDINAL ) .

ORG and ORG , which reported in DATE , whilst rejecting the possibility of prohibiting the closed shop , considered the question of safeguards for individuals in a closed shop situation . In particular , a majority of that Commission took the view that an existing employee who was dismissed for refusal to join a union following the introduction of a closed shop should be able to succeed against his employer in a complaint of unfair dismissal so long as he could show that he had reasonable grounds for that refusal .

Prior to DATE , the rights and liabilities of the parties to a contract of employment were for the most part governed by common law . Leaving aside cases of justified summary dismissal , it was lawful to dismiss an employee , even without cause , provided that he was given due notice . The remedy open to an employee dismissed without due notice was merely to sue for the balance of wages he would have earned during the appropriate notice period ; the courts would not order his employer to re - engage him . These principles applied , for example , to dismissals motivated by an employee ’s joining , or refusing to join , a trade union .

LAW DATE

Since DATE , there has been increased Parliamentary intervention in the areas under consideration , and changes of Government have led to changes in the scope and content of the legislation in force . The first major enactment was LAW DATE which radically altered the common law position in CARDINAL respects .

In the first place , the DATE Act conferred on employees ( with certain exceptions ) the right not to be unfairly dismissed . Dismissal of an employee without cause became unlawful , even if he had been given due notice . An individual who considered that he had been unfairly dismissed could present a complaint to an industrial tribunal ; unless the dismissal had been motivated by CARDINAL or more reasons specified in the LAW ( for example , qualifications , conduct , redundancy ) or some other substantial reason and unless the employer was found to have acted reasonably in treating that or those reasons as a sufficient reason for dismissal , the tribunal could award compensation to the employee or recommend that he be re - engaged . The employee ’s common law rights were unaffected by the LAW , although after DATE little reliance was placed on them in practice by those entitled to the new right .

In the second place , the DATE Act introduced specific provisions which were designed to make the operation of the majority of closed shops unlawful . In addition to stipulating that pre - entry closed shop agreements were void , the LAW , subject to certain exceptions , gave every worker the right to be a member of no trade union or to refuse to be a member of any particular union . In the context of the rules on unfair dismissal and in contrast to the position at common law ( see paragraph CARDINAL in fine above ) , the Act laid down that dismissal motivated by the employee ’s exercise of , or intention to exercise , that right was be to regarded as unfair .

A ORG , published by ORG in DATE , states that LAW " met considerable resistance from trade unions and in practice its closed shop provisions were circumvented by many employers and unions . The closed shop continued much as before " .

The law in force at the time of the events giving rise to the applicants’ complaints

The industrial Relations Act DATE was repealed by ORG DATE ( " TULRA " ) . The provisions of TULRA relevant to the present case came into force on DATE .

The repeal of LAW DATE removed from the statute book both the prohibition on closed shops and the employee ’s right not to belong to a union . However , the law did not fully return to its DATE condition . This was because ORG maintained the protection against unfair dismissal ; since CARDINAL result of a closed shop is that an individual who declines to join a specified union may have his employment terminated , it was necessary to spell out the precise conditions in which dismissal for this reason was to be regarded as fair . Accordingly , TULRA :

( a ) set out - by reference to the concept of " union membership agreement " , which it defined - the circumstances in which a closed shop situation was to be regarded as existing ;

( b ) laid down the basic rule that , if such a situation existed , the dismissal of an employee for refusal to join a specified union was to be regarded as fair for the purposes of the law on unfair dismissal ;

( c ) provided that , by way of exceptions , such a dismissal was to be regarded as unfair if the employee genuinely objected

( i ) on grounds of religious belief to being a member of any union whatsoever ; or

( ii ) on any reasonable grounds to being a member of a particular union .

The powers of an industrial tribunal under LAW to award compensation to an unfairly dismissed employee were also re - enacted by ORG . However , the power to recommend his re - engagement was later replaced , by LAW DATE , by a discretionary power to order reinstatement or re - engagement in certain circumstances ( notably , where this was considered " practicable " ) . It was provided that , if the order were not complied with , the employee should be awarded the normal compensation for unfair dismissal and , in specified cases , an additional sum .

TULRA was modified in various respects by ORG DATE ( " LAW " ) which came into force on DATE . In particular , the second of the exceptions mentioned in paragraph CARDINAL ( c ) above was abolished , so that the action for unfair dismissal remained available only to genuine religious objectors . With the object of achieving greater flexibility , LAW also modified the concept of " union membership agreement " .

Subsequent legislative developments

ORG DATE repealed and re - enacted the then existing provisions concerning unfair dismissal .

LAW was in turn amended , without retroactive effect , by LAW . It remains the basic rule that the dismissal of an employee for refusal to join a specified union in a closed shop situation is to be regarded as fair for the purposes of the law on unfair dismissal . However , with effect from DATE , this rule became subject to CARDINAL exceptions whereby such dismissal is to be regarded as unfair if :

( a ) the employee objects on grounds of conscience or other deeply - held personal conviction to being a member of any or a particular union ; or

( b ) the employee belonged , before the closed shop agreement or arrangement came into effect , to the class of employees covered thereby and has not been a member of a union in accordance therewith ; or

( c ) in the case of a closed shop agreement or arrangement taking effect after DATE , either it has not been approved by the vote in a ballot of not PERCENT of the employees affected or , although it is so approved , the employee has not since the balloting been a member of a union in accordance therewith .

A Code of Practice , issued with the authority of ORG and coming into effect on CARDINAL DATE , recommended , inter alia , that closed shop agreements should protect basic individual rights and be applied flexibly and tolerantly and with due regard to the interests of individuals as well as unions and employers . The LAW is admissible in evidence , but imposes no legal obligations .

The green Paper on Trade Union Immunities ( see paragraph CARDINAL above ) rehearsed arguments for and against various proposals and indicated that the Government would welcome views on whether further changes in legislation affecting the closed shop were desirable and would be likely to prove effective .

Since DATE , there has been statutory protection of the right to belong to a trade union . The exact content of the provisions has varied over DATE , but their essence is that an employee is entitled to compensation if he is dismissed or penalised for , or deterred or prevented from , being or seeking to become a member or taking part in the activities of a trade union ( Industrial Relations Act DATE , section CARDINAL ; ORG , Schedule CARDINAL , paragraph CARDINAL ( CARDINAL ) ; Employment Protection Act DATE , section CARDINAL ; ORG DATE , sections CARDINAL and DATE ) .

At DATE , there were CARDINAL trade unions in GPE , with CARDINAL members ; in DATE , CARDINAL unions with CARDINAL members , were affiliated to ORG .

The ORG adopted in DATE a series of morally binding recommendations ( " the Bridlington Principles " ) designed to minimise , and laying down procedures for dealing with , disputes between affiliated unions over membership questions . The current version of the NORP states , inter alia , that dual membership is valid only if the CARDINAL unions concerned have jointly agreed to it .

LAW DATE , as amended , attaches certain conditions to the application by a union of its funds for a number of political objects specified in section CARDINAL ( CARDINAL ) , without prejudice to the furtherance of any other political objects . In particular , payments for the specified object must be made out of a separate " political fund " and any member of the union has the right to exemption from contributing thereto . A person so exempted may not be placed at any disadvantage as compared with other members , and contribution to the said fund may not be made a condition for admission to the union .

In DATE , ORG had concluded a closed shop agreement with ORG ( " NUR " ) , ORG ( " TSSA " ) and ORG and Firemen ( " ORG " ) , but , with the enactment of LAW DATE ( see paragraph CARDINAL above ) , it was not put into effect .

The matter was , however , revived in DATE when ORG concluded a further agreement with the same unions . It was provided that as from DATE membership of CARDINAL of those unions was to be a condition of employment for certain categories of staff - including the applicants - and that the terms of the agreement were " incorporated in and form[ed ] part of " each contract of employment . Like other staff of ORG , Mr. PERSON , Mr PERSON and Mr. PERSON had , it appears , been supplied when engaged with a written statement containing a provision to the effect that they were subject to such terms and conditions of employment as might from time to time be settled for employees of their category under the machinery of negotiation established between their employer and any trade union or other organisation .

The membership requirement did not apply to " an existing employee who genuinely objects on grounds of religious belief to being a member of ORG whatsoever or on any reasonable grounds to being a member of a particular ORG " . The agreement also set out the procedure for applying for exemption on these grounds and provided for applications to be heard by representatives of the employer and the unions .

In DATE , notices were posted at the LOC of ORG , including those where the applicants were then working , drawing the attention of staff to the agreement with the unions and the change in conditions of employment .

A further notice of DATE stated that it had been agreed that the exemption on religious grounds would be available only where a denomination specifically proscribed its members from joining unions . The notice added that " confining exemption only to religious grounds depends upon the passing through ORG ) Bill " and that staff would be advised further on this point . As recorded in paragraph CARDINAL above , LAW came into force on DATE .

On DATE , a further agreement between ORG and the railway unions came into effect . It was in identical terms to the DATE agreement , except that the words " or on any reasonable grounds to being a member of PERCENT " ( see paragraph CARDINAL above ) were omitted .

The applicants and the representative of ORG informed the ORG that ORG , ORG and ORG were the only unions actually operating in DATE in those sectors of the railway industry in which Mr. PERSON , Mr. PERSON and Mr. PERSON worked . According to the Government , other unions did have members in , although they were not recruiting amongst , the relevant grades .

It appears that , prior to the conclusion of the DATE closed shop agreement , CARDINAL ORG employees , out of a total staff of CARDINAL , were not already members of CARDINAL of the specified unions . In the final event , CARDINAL individuals were dismissed for refusal to comply with the membership requirement .

The applicants were not eligible for membership of ORG . As regards ORG and ORG , intending members were required to sign an application form which , at the relevant time , embodied an undertaking to abide by the Rules of the union and " loyally to promote " its objects ( ORG ) , or to use their " best endeavours to promote its objects and interests " ( ORG ) .

The stated objects of ORG included the following :

" ... to secure the complete organisation of all workers employed by any ORG in connection with railways and other transport and ancillary undertakings thereto in GPE ; to improve the conditions and protect the interests of its members ; ... To further , if and when and so far as the same shall be or become a lawful object of GPE , the interests of members by representation in ORG and on local governing bodies , and to employ ORG procuring such representation . To work for the suppression of the capitalist system by a NORP order of society . ... To make grants to and share in the management and control of any college or institution having for its object to educate and train Trade NORP in social science in , and to take part in , the political and industrial life of ORG . ... "

" ( a ) To organise the whole of ORG employees in all Departments of any NORP or ORG undertaking , or of ORG , associated or other undertaking as defined in Rule CARDINAL .

( b ) To improve the conditions and protect the interests of its members .

( g ) To establish a ORG , or Funds , including ORG referred to in LAW and DATE .

( i ) To secure or assist in securing legislation and the more effective administration of the existing laws which may affect the general and material welfare of its members and of any other workmen .

( j ) To provide financial assistance and to lend money , with or without interest or other equivalent , to any such organisation ( incorporated or not incorporated ) as ORG may deem advisable in the interests of or for carrying out the objects of the ORG , and so far as the law for the time being in force may permit .

The objects of both unions also included the furtherance of the political objects specified in section CARDINAL of LAW DATE and their Rules contained provisions reflecting that Act ’s requirements in the matter of a political fund ( see paragraph CARDINAL above ) . In the case of ORG , payments from its political fund could not be made unless the beneficiary was an individual member of ORG or the purpose of the payment was in support of ORG policy ; its general funds could be used for providing financial assistance for political purposes other than the " political objects " listed in LAW .

Mr. PERSON , who was born in DATE , commenced employment with ORG in DATE .

In DATE , he had a meeting with his supervisor and a representative of ORG who informed him about the closed shop agreement - the effect of which in his case was that , as a clerical officer , he was required to join either ORG or ORG - and of the grounds of exemption applicable at that time ( see paragraph CARDINAL above ) .

The applicant objected , though not on grounds of religious belief , to being a member of any trade union and in particular of ORG or NUR . He believed that union membership should be a matter of personal choice based on conscience and political conviction . His reasons for not wanting to join ORG , which he said also applied to ORG , may be summarised as follows :

( a ) he did not subscribe to the political views of ORG ;

( b ) money from the main union fund was used to produce a DATE newspaper biased in favour of ORG and he had not received sufficient assurances that that fund was not utilised for other political purposes ;

( c ) he disapproved of ORG ’s support for nationalisation of industry and its forcing of inflationary pay awards ; he also objected to being obliged to participate in strikes , this being action which in the case of a key service industry he saw as collective blackmail of the country as a whole ;

( d ) ORG showed itself intolerant of the expression of individual freedom by seeking to enforce a closed shop and it acquired by that means an unacceptably extensive control over the hiring and firing of employees .

On DATE , Mr. PERSON submitted a written claim for exemption . On DATE , that is after the entry into force on DATE of LAW ( see paragraph CARDINAL above ) , he was informed by letter that his claim would be heard on DATE On DATE , he appeared before an appeal body composed of CARDINAL persons representing , respectively , ORG , ORG and NUR .

By letter of DATE , ORG advised the applicant that the claim had been disallowed and gave him notice of dismissal - of DATE , in accordance with his contract - expiring on DATE .

Mr. PERSON , who was born in DATE , was engaged by ORG on DATE as a leading railwayman . He had previously been employed by ORG for CARDINAL periods of DATE .

In DATE , he had a meeting with his immediate superior and a representative of ORG who informed him that , as a result of the closed shop agreement , he was required to join ORG and that , as a shunter , he was not eligible for membership of any other union . Mr. PERSON was willing to join - in fact , he had previously been a member of ORG - but he was not convinced that membership was advantageous and he believed in freedom of choice . He deferred his final decision pending clarification of a question , submitted by CARDINAL of his colleagues to ORG , regarding an apparent difference between his salary and that of his colleague who was working TIME . Before applying for membership , Mr. PERSON wished to see PERSON ’s reply in order to assess how PERSON problems were dealt with . In the event , he formed the view that the union ’s examination of the matter and explanation of its conclusions were unsatisfactory and that it had not looked after its member ’s interests properly ; therefore he did not wish to join the union .

By letter of DATE , the applicant indicated that he refused to join the union since it had not replied to his own query TIME of work .

On DATE , he received a dismissal notice stating that , by reason of his non - compliance with the DATE agreement , his services would no longer be required as from DATE .

DATE . On DATE , Mr. PERSON presented a complaint of unfair dismissal to an industrial tribunal , before which he appeared on DATE . On DATE , he received a copy of its decision rejecting his complaint . The grounds were , firstly , that the applicant had never sought exemption from union membership in accordance with the procedure laid down in the closed shop agreement and , secondly , that as he had at no time based his refusal to join ORG on religious grounds , the tribunal was bound under paragraph CARDINAL ( CARDINAL ) of Schedule CARDINAL to TULRA ( as modified by LAW ) to find that the dismissal was fair .

Mr. PERSON , who was born in DATE , commenced employment with ORG on DATE .

At the time of the conclusion of the DATE closed shop agreement ( see paragraph CARDINAL above ) , the applicant had objected to joining a union on grounds which he set out in a letter to ORG . However , as that agreement was not put into effect , he was not called upon to appear before the appeal body to which he had agreed to submit his claim .

In or around DATE , the applicant had a meeting with his immediate supervisor and the local representative of ORG who informed him about the closed shop agreement - the effect of which in his case was that , as a clerical officer , he was required to join either ORG or ORG - and of the grounds of exemption applicable at that time ( see paragraph CARDINAL above ) .

Mr. PERSON was opposed to joining a union for reasons - in his eyes equally valid for ORG and ORG - which included the following :

( a ) he was opposed to the trade union movement as it currently operated since it was unrepresentative , had detrimental effects - particularly through unjustified collective wage demands - in the economic , industrial and social spheres , and did not act in the best interests of workers or of the country in general ; he also found it utterly repugnant to be obliged to participate in any strike which caused loss to the general public or workers elsewhere ;

( b ) he believed that the individual should enjoy freedom of choice as regards union membership and should be able to express and abide by his opinions and convictions without being threatened with the loss of his livelihood as a result of the closed shop practice , which practice would not remedy the disabilities inherent in the trade union system .

On DATE , Mr. PERSON wrote to his supervisor explaining some doubts which he had as to the courses open to him to claim exemption and seeking guidance on certain aspects . He said that he wished to apply for exemption on conscientious grounds ( other than specifically religious grounds ) and he asked that , if this was still possible , his DATE submissions be accepted as his case , though he also indicated that he would again wish to present a full and closely argued case . He added that he was an opponent of the trade union movement " as it operates DATE " . On DATE , that is after the entry into force on DATE of LAW ( see paragraph CARDINAL above ) , he was advised by letter that his application would be examined DATE by representatives of ORG and the unions in accordance with the procedure prescribed in the DATE agreement . The applicant requested CARDINAL GPE postponement to enable him to prepare written submissions . On DATE , by which time he had received replies , through his solicitors , to only some of the questions posed in his DATE letter , he was instructed to attend a hearing on DATE On DATE , he appeared before an appeal body composed of CARDINAL persons representing , respectively , ORG , ORG and NUR .

On DATE , Mr. PERSON received a dismissal notice stating that his application had been disallowed and that his contract of employment would terminate on DATE .


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

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

The applicant sued local welfare authorities for an increase of the disability benefits due to him .

By judgment of DATE , as upheld on appeal on DATE , ORG of GPE ( ORG ) ordered the authorities to pay the applicant a lump sum of MONEY ( RUB ) and to increase the DATE and DATE disability payments in line with the relevant domestic legislation .

On DATE the lump sum was paid to the applicant in full but he continued to receive DATE payments in the amount lower than awarded .

On DATE the Presidium of ORG ( the ORG ) quashed the judgment of DATE on supervisory review and remitted the case for a new examination at the first instance court .

On DATE ORG re - examined the case and granted the applicant ’s claims . On DATE ORG upheld these findings on appeal .

On DATE the ORG again quashed the judicial decisions of DATE and DATE by way of the supervisory review proceedings and ordered a fresh examination of the case .

By judgment of DATE , as upheld by the appeal decision of CARDINAL DATE , ORG allowed the applicant ’s action in part .

The applicant applied for the supervisory review of the CARDINAL latest judicial decisions .

On DATE the ORG granted his application , quashed the judgments of DATE and DATE in supervisory review proceedings and ordered that the case be examined afresh by the court of the first instance .

On DATE ORG in the new round of court proceedings examined and granted the applicant ’s claim . It ordered the local welfare authority to pay the applicant a lump sum of RUB CARDINAL in arrears in respect of various disability benefits and recalculated and further increased the DATE and DATE payments due to him .

On DATE the judgment entered into force . According to the Government , it was fully executed on DATE .


The applicants , PERSON and PERSON , are NORP nationals who were born in DATE and DATE and live in GPE and PERSON respectively . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , ORG Attorney - General .

On DATE the applicants’ father Mr PERSON was convicted and sentenced to CARDINAL months’ deprivation of liberty and to forfeiture of immovable and movable property to the ORG ( a house , several fields , forests , electric mill , etc . ) .

On DATE , further to the ORG request , ORG filed a request for legality with ORG in order to challenge the applicants’ father ’s conviction .

On DATE the applicants sent a letter to the Novo mesto ORG , ORG , requesting restitution of property confiscated to their late father in DATE .

On DATE ORG quashed the conviction of the ORG late father and the sentence of forfeiture of his property to the ORG .

At the material time , Section CARDINAL of the DATE LAW as then applicable ( “ the DATE LAW ) regulated the restitution of , and compensation for , the property forfeited through penal proceedings ( see “ Relevant domestic law and practice ” ) .

The applicants then filed a request for restitution of confiscated property also with the local authorities – the Community of Trebnje . The latter forwarded the request to the ORG mesto ORG , ORG .

However , on DATE the Novo mesto ORG , ORG , forwarded the request to ORG . On DATE the latter , further to LAW , sent the request back to the Novo mesto ORG , ORG .

On DATE LAW ( “ the DA ” ) was adopted , forming the basis for restitution of property ( or its value ) that had passed into ORG ownership after the Second World War . Its Section CARDINAL provided that property forfeited in criminal proceedings that had terminated before DATE should also be returned to previous owners under the DA ( see “ Relevant domestic law and practice ” ) . CARDINAL individual filed a constitutional initiative ( ustavna pobuda ) with the Constitutional Court challenging the constitutionality of LAW .

Following the adoption of the ORG , on DATE the Novo mesto ORG , ORG decided that it lacked jurisdiction to examine the claim , since the administrative authorities enjoyed jurisdiction over denationalisation matters .

On DATE the applicants filed an appeal . They also requested the issuing of an interim injunction and an exclusion of a judge .

On DATE the Higher Court granted the appeal and remitted the case to the Novo mesto ORG , ORG .

On DATE the President of the Novo mesto ORG refused the request for exclusion of a judge .

On DATE the applicants lodged a new request for exclusion of a judge and for exclusion of the president of the Novo mesto ORG . On DATE ORG rejected it .

On DATE , ORG rescinded Section CARDINAL of the DA .

On DATE the applicants started proceedings against ORG , GPE and CARDINAL other defendants , among them CARDINAL natural persons , before the Novo mesto ORG , ORG with a view to determine ownership rights over the confiscated real estate and its delivery . At the same time , they proposed an interim injunction on the prohibition of alienation and encumbrance of the real estate .

On DATE , following a hearing , the request for an interim injunction was rejected and the request for the note on the dispute in the land register was granted . The applicants’ representative was invited inter alia to produce complete extracts from the land register for all real estate in dispute .

On DATE the Novo mesto ORG , ORG again summoned the ORG representative to reply to its request .

On DATE the Novo mesto ORG , ORG decided to stay the proceedings and to continue them as non - contentious proceedings . At the same time , it decided to annul its decision on the note of the dispute .

On DATE the Novo mesto ORG , ORG decided to join CARDINAL sets of non - contentious proceedings .

On DATE the applicants replied to the request of DATE . They also requested the Novo mesto ORG , ORG to issue a partial decision on restitution in kind and to stay the proceedings until ORG rendered a leading decision on restitution of property belonging to natural persons .

On DATE ORG filed submissions .

On DATE the applicants applied for an interim injunction .

On DATE the Novo mesto ORG , ORG handed down a partial decision , returning the property that could be restituted in kind to the applicant ’s late father .

On DATE CARDINAL defendants , all natural persons , requested the court to issue a supplementary decision on legal costs .

On DATE the applicants lodged an appeal against the decision of DATE .

On DATE ORG rejected the appeal .

On DATE the applicants filed a request for an interim injunction on prohibition of alienation or encumbrance of the remaining property .

On DATE CARDINAL defendants replied .

On DATE the request was rejected . The applicants filed an appeal which ORG dismissed on DATE .

On DATE the new ownership of the real estate restituted in kind to the applicants’ late father was registered in the land register .

On DATE the applicant PERSON filed a document relating to a plot of land which had been allegedly omitted from the decision of QUANTITY DATE .

On DATE ORG ( new style of the first - instance court further to the reform ) received the applicant PERSON request lodged with ORG on DATE .

On DATE the ORG passed the LAW on the Temporary Suspension of certain Provisions of the Act on ORG and of LAW on LAW ( “ LAW ” ) . It had the effect of suspending extant claims under LAW , originally until DATE and subsequently , under new legislation , until DATE .

While those provisions were in abeyance , the ORG passed LAW ( the “ CARDINAL LAW “ ) . That LAW added new ORG to LAW .

Section CARDINALA applied the provisions of the DA regarding the form and scope of restitution as well as the restrictions on restitution and the valuation of property to claims for restitution of property forfeited in criminal proceedings terminated before DATE ( see “ Relevant domestic law and practice ” ) .

In DATE and DATE several individuals filed a constitutional initiative challenging LAW before ORG on the ground that its provisions were retroactive and discriminatory . On DATE ORG dismissed the initiative ( decision no . U - I-CARDINAL/CARDINAL - see “ Relevant domestic law and practice ” ) .

On DATE the applicants filed a complaint with ORG concerning the length of the proceedings .

On DATE ORG informed the applicants that due to the change of legislation and stay of the proceedings , the court had been unable to proceed with the examination of their claim and that a hearing would probably be scheduled in DATE .

On DATE , on the basis of the amended LAW , ORG requested the applicants to designate entities liable for the restitution of property .

The applicants filed an appeal and lodged a request for “ exclusion of all courts in the LOC region and of the president of ORG ” . On DATE the court adjourned a hearing pending the outcome of the request for exclusion .

On DATE the president of ORG rejected the request for exclusion of the president of ORG .

On DATE the applicants were summoned to supplement their request for exclusion of all courts in the GPE region .

In reply , on DATE the applicant requested the transferral of jurisdiction . On DATE ORG rejected this request .

On DATE ORG rejected the appeal against the decision of DATE .

On DATE the applicants filed a request for exclusion of ORG judges and a request for protection of legality .

On DATE ORG rejected the ORG request for protection of legality as inadmissible .

On DATE the applicants lodged a constitutional appeal against ORG decision of DATE .

On DATE the Attorney General rejected the ORG request to file a request of legality against ORG decision .

On DATE ORG requested the applicants to supplement their appeal .

On DATE the applicants replied and also filed a constitutional initiative challenging the CARDINAL Act .

On DATE ORG made inquiries about the state of denationalisation proceedings initiated by the applicants with ORG . The latter replied on DATE .

On DATE ORG dismissed the applicants’ constitutional appeal against the decisions of DATE and DATE . It also separated the part of the applicants’ submissions pertaining to the DATE Act and reserved it for a later decision .

On DATE ORG dismissed the applicants’ initiative challenging ORG and CARDINAL of the amended CARDINAL Act .

On DATE ORG again summoned the applicants to designate entities liable for the restitution of property , as requested by its decision of DATE . It also made inquiries about the confiscated real estate with ORG . A hearing was scheduled for DATE .

On DATE the ORG representative sent a letter to ORG stating that its decision of CARDINAL DATE had no legal ground . He also requested the court to initiate proceedings for review of constitutionality of LAW .

The ORG representative repeated this at the hearing held on DATE and stated that the applicants would initiate such proceedings themselves if ORG failed to do so . The latter postponed the hearing .

On DATE ORG received the reply from LOC .

On DATE ORG informed the applicants that ORG had already reviewed the constitutionality of LAW on DATE . It again requested the applicants to act in compliance with its decision of CARDINAL DATE .

A new hearing was scheduled for DATE but the ORG representative requested the court to stay the proceedings since they had lodged a new initiative with ORG . ORG stayed the proceedings .

On DATE ORG rejected the initiative .

On DATE ORG rejected the ORG claim since they had not properly designated the entities liable for restitution of property .

On DATE the applicants filed an appeal , stating that they had not been warned of possible consequences of poor representation . They also indicated the entity liable for restitution and the form of damages sought .

On DATE ORG granted the appeal and remitted the case to the first - instance court .

On DATE the ORG again made inquiries with ORG of Novo mesto about the confiscated real estate . The latter replied on DATE .

On DATE ORG decided to appoint a court valuator DATE civil engineer . It instructed the applicants to pay his fees in advance , which they did .

On DATE , further to the change of legislation , the applicants filed a request for lost profits from the date of annulment of the conviction until CARDINAL DATE . They also requested to be exempted from payment of costs of the proceedings and an exclusion of a judge .

On DATE the ORG representative requested the court to return the paid sum to them and to transfer the case to another court .

On DATE the president of ORG rejected the ORG request for exclusion of a judge .

On DATE ORG rejected their request filed on DATE .

On DATE ORG requested the applicants to substantiate their request for the exemption of costs . On DATE they replied to the court ’s inquiries .

On DATE ORG rejected their request . The applicants lodged an appeal .

On DATE ORG rejected the appeal .

On DATE the applicants supplemented their submissions of CARDINAL DATE .

On DATE and DATE hearings were held .

On DATE , a civil engineering expert was appointed . He prepared his opinion on DATE .

On DATE , after a hearing , ORG issued a decision on the payment of compensation for the confiscated property in bonds of GPE amounting to CARDINAL SIT ( CARDINAL ORG ) . The applicants filed an appeal .

On DATE ORG issued a supplementary decision on the payment of expert fees .

On DATE the applicants filed an appeal and an application for exemption from payment of the court fees as well as a request for transferral of jurisdiction .

The proceedings are currently pending before ORG .

LAW , as amended ( Zakon o izvrševanju kazenskih sankcij , ORG nos . CARDINAL , CARDINAL/CARDINAL ) originally excluded from restitution all those sentenced before DATE .

“ If the sanction of forfeiture of property is quashed , the forfeited property shall be restored to the person sentenced or his heirs .

If the restitution of property in whole or in part is physically or legally impossible , the actual value of that property at the time of the decision on its restitution , and according to the state of the property at the time of forfeiture , shall be paid by the socio - political unit to which the property was allocated . ( ... ) ”

The CARDINAL LAW ( Official Journal no . CARDINAL ) replaced LAW .

LAW ( Zakon o denacionalizaciji , ORG no . CARDINAL ) formed the basis for restitution of property ( or its value ) that had passed into ORG ownership through previous legislation ( agrarian reform , nationalisation , confiscation , etc . ) .

Section CARDINAL provides that all natural persons whose property had passed into ORG ownership on the basis of the listed legislation adopted in the aftermath of the Second World War are entitled to denationalisation . LAW further specifies that all other natural persons whose property was nationalised before DATE are entitled to denationalisation .

Sections CARDINAL and DATE to CARDINAL provide that , where property can not be returned in its original form , compensation is payable ( not in cash but in ORG bonds payable in instalments DATE ) .

Section CARDINAL of the DATE Act extended its provisions to property forfeited in criminal proceedings that had terminated by DATE . That provision was rescinded by ORG on DATE , partly on the ground that it was retroactive and therefore violated LAW ( decision no . ORG ) .

LAW on the Temporary Suspension of Certain Provisions of the Act on Denationalisation and of LAW

Section CARDINAL of LAW on the Temporary Suspension of Certain Provisions of the Act on Denationalisation and of LAW ( Zakon o začasnem zadržanju izvajanja nekaterih določb zakona o denacionalizaciji in zakona o izvrševanju kazenskih sankcij , ORG no . CARDINAL/CARDINAL ) suspended , inter alia , originally until DATE and subsequently , under new legislation , until DATE , those proceedings concerning claims for the restitution of or payment of compensation for property confiscated by virtue of criminal judgments handed down before DATE and subsequently annulled .

LAW of , and Supplements to , LAW

The DATE LAW of , and Supplements to , LAW ( Zakon o spremembah in dopolnitvah PERSON o izvrševanju kazenskih sankcij , ORG no . CARDINAL ) made minor amendments to LAW .

It also added new ORG and CARDINALC to LAW . As far as the criminal proceedings terminated before DATE are concerned , ORG replaced LAW , applying the provisions of the ORG regarding the form and scope of restitution as well as the restrictions on restitution and the valuation of property to claims for restitution of forfeited property . Section CARDINALC expressly removed the right to compensation for the previous owner ’s inability to make use of the property during the period of forfeiture .

Section CARDINAL made the change applicable in non - contentious and contentious proceedings concerning the restitution of confiscated property when such proceedings commenced before the LAW came into force , but had not become final by that time .

In DATE , further to ORG ruling of DATE , Section CARDINAL was amended again so that persons entitled under ORG might claim compensation for being unable to use or to manage the property or for loss of earnings incurred throughout the period running from the quashing of the forfeiture of the property until the decision on its restitution becomes final .

The following provisions of LAW ( PERSON , ORG no . CARDINAL ) are relevant here :

“ In GPE everyone shall be guaranteed equal human rights and fundamental freedoms irrespective of national origin , race , sex , language , religion , political or other conviction , material standing , birth , education , social status or any other personal circumstance .

All are equal before the law . ”

“ Human rights and fundamental freedoms shall be exercised directly on the basis of the LAW .

The manner in which human rights and fundamental freedoms are exercised may be regulated by law whenever the LAW so provides or where this is necessary due to the particular nature of an individual right or freedom .

Human rights and fundamental freedoms shall be restricted only by the rights of others and in such cases as are provided by LAW .

Legal protection of human rights and fundamental freedoms , and the right to obtain redress for the violation of such rights and freedoms , shall be guaranteed .

No human right or fundamental freedom regulated by legal acts in force in GPE may be restricted on the ground that this LAW does not recognise that right or freedom or recognises it to a lesser degree . ”

“ Everyone shall be guaranteed equal protection of rights in any proceeding before a court and before other state authorities , local community authorities and bearers of public authority that decide on his or her rights , duties or legal interests . ”

“ Everyone has the right to have any decision regarding his rights , duties and any charges brought against him made without undue delay by an independent , impartial court constituted by law .

Only a judge duly appointed pursuant to rules previously established by law and by judicial regulations may judge such an individual . ”

“ Everyone shall have the right to compensation for damage caused by the unlawful acts of a person or body when performing a function or engaged in an activity on behalf of a state or local authority or as a holder of public office ... ”

“ Any person unjustly convicted of a criminal offence or deprived of his liberty without due cause has the right to rehabilitation and compensation , and other rights provided by law . ”

“ The right to private property and inheritance shall be guaranteed . ”

“ Laws and other regulations and general legal acts can not have retroactive effect .

Only a law may establish that certain of its provisions have retroactive effect , if this is required in the public interest and provided that no acquired rights are infringed thereby . ”

“ The Constitutional Court shall hear :

... constitutional appeals in which specific acts are alleged to have infringed a human right or fundamental freedom ; ...

Unless otherwise provided by law , the Constitutional Court shall hear a constitutional appeal only if legal remedies have been exhausted . The Constitutional Court shall decide whether a constitutional appeal is admissible for adjudication on the basis of statutory criteria and procedures . ”

In DATE and DATE several individuals challenged the DATE Act by constitutional initiative ( ustavna pobuda ) before ORG on the ground that its provisions were retroactive and discriminatory .

On DATE , ORG ruled ( a joined decision no . U - I-CARDINAL/CARDINAL ) that the disputed provisions of Sections CARDINALA and CARDINAL of the DATE Act did not conflict with the LAW because such interference with the constitutional rights granted in LAW ( right to rehabilitation and compensation in criminal proceedings ) and CARDINAL ( right to own and inherit property ) of the LAW was indispensable for the protection of the rights of other claimants under the ORG .

Placing unjustly convicted persons on an equal footing with all other rightful claimants regarding the redress of post - war wrongs was an appropriate means through which the legislator had achieved his aim . The principle of the Welfare State empowered the legislator , with due consideration paid to the right of all citizens to social security , to have regard to the financial resources of the ORG and , in cases which were constitutionally admissible , also to restrict certain rights accordingly .

ORG also added that , when deciding , in DATE ( decision no . ORG ) , to quash LAW , it had been unaware of the full extent of the property forfeited through criminal proceedings prior to DATE and thus also of the financial obligations incumbent on the ORG .

ORG ruled that LAW was in conformity with the LAW notwithstanding the fact that it retroactively interfered with acquired rights because the retroactive effect of the LAW was justified by the public interest , and since such interference , provided it be subjected to rigorous constitutional scrutiny , was in conformity with paragraph CARDINAL of LAW .

ORG also emphasised the need , in the light of LAW and LAW , for swift completion of pending cases , all the more so as the restitution of property had twice been delayed by law and that the matter required an early solution .

On DATE , ORG ruled that exclusion of claims for compensation for the inability to use or manage the property or in respect of lost profits for the period running from the quashing of the sentence of forfeiture until the decision on restitution became final was unconstitutional . In DATE , the ORG adopted a new wording of Section CARDINALC.

On DATE ORG dismissed the applicants’ initiative challenging ORG and CARDINAL of the amended CARDINAL Act and on DATE ORG rejected another initiative lodged by the applicants .

The LAW 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 provides for CARDINAL remedies to expedite pending proceedings - a supervisory appeal ( nadzorstvena pritožba ) and a motion for a deadline ( rokovni predlog ) - and , ultimately , for a claim for just satisfaction in respect of damage sustained because of the undue delay ( zahteva za pravično zadoščenje ) .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

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

On DATE the applicant was arrested in GPE on the suspicion of drug trafficking in substantial quantities .

On DATE several persons involved in the drug trafficking , CARDINAL of whom was witness C. , were caught with QUANTITY of heroin in GPE and subsequently detained . During C. ’s interview by NORP police officers on DATE he incriminated inter alia the applicant giving detailed information about the applicant ’s participation in their drug - dealing activities . During a further interview on CARDINAL DATE C. submitted that he “ would not accept the statements ” of his previous interview , that he “ had been under pressure ” and that “ he had not made those statements ” .

On DATE ORG decided to open the trial against the applicant .

In DATE and DATE , following a request of ORG , a judge of ORG interviewed ( kommissarische GPE ) inter alia C. , the police officers who had arrested the applicant and CARDINAL of the QUANTITY police officers who had conducted PERSON ’s interview on DATE . The interviews of C. and the police officers were held in the presence of the judges of the GPE ORG sitting in the applicant ’s case , ORG and the applicant ’s defence who had the possibility to ask questions of the witnesses . During his interview C. alleged that the police officers had tortured him to extract the statements given by him on DATE . Furthermore he specified some symptoms which had been the result of his alleged ill - treatment . Subsequently , the judge of ORG decided to reject all further questions concerning the alleged torture as they would not have any influence on the judgment .

In the meantime , C. had instituted criminal proceedings against the police officers on the grounds of his alleged ill - treatment . On DATE ORG acquitted the police officers of the charges against them as there had been no credible evidence on the basis of which they could have been convicted .

DATE and DATE ORG held CARDINAL hearings in which the applicant was represented by several lawyers . DATE and DATE ORG repeatedly and unsuccessfully tried to summon C. to the hearings and offered to examine him via video conference , but C. rejected that offer . Therefore ORG read out parts of the written records of C. ’s statements made during the trial against the police officers before ORG . Furthermore it read out the written records of C. ’s interview by the police officers in DATE and of the interview of the police officers by ORG in DATE .

On DATE the GPE ORG convicted the applicant of CARDINAL counts of importing and trafficking a substantial amount of drugs ( DATE QUANTITY of heroin each time ) and passed a cumulative sentence of DATE imprisonment . Furthermore it ordered the applicant ’s preventive detention after the sentence had expired .

The court found that the applicant had planned and organised the first CARDINAL deliveries of heroin and conducted the heroin business himself as of the sixth delivery . The court set out the reasons for his conviction on CARDINAL pages , thereby relying inter alia on the records of C. ’s interview of CARDINAL DATE and on the oral and written submissions of the police officers who had interviewed C. It found that C. ’s submissions given during his first interview had been credible . The very general revocation of his first statement however as well as the fact that the other persons who had been arrested together with C. likewise revoked their submissions – on some occasions even with the same wording DATE and that their submissions converged more and more during the proceedings strongly suggested that they had colluded in relation to their testimonies as to the alleged ill - treatment . C. ’s submissions and the statements of his accomplices were highly contradictory as to his alleged torture and the symptoms he had alluded to . Furthermore , it could not be proved from the judgment of ORG , from the statements of C. , the police officers before that court or the various medical reports that C. had in fact been ill - treated . Contrary to the applicant ’s submissions and according to reports of ORG and of ORG there is also no general assumption that NORP police officers usually administer torture during their investigations . ORG added that , “ in this specific case , the police officers had not had a reason to ill - treat C. as they had already been granted a bonus for having seized the drugs . They thus would not have received any other financial advantage for obtaining further information from ORG or his accomplices ” .

The court , being aware that a large part of the evidence was in fact indirect evidence , further found that the statements of C. and the police officers who had conducted his investigation had been confirmed inter alia by the submissions of witnesses whom the applicant had been able to examine , the content of the applicant ’s and other witnesses’ telephone conversations , the flow of money which had resulted from the drug activities and which the applicant had carried out and , finally , by his own submissions which he had modified during trial and adapted according to the respective findings of the court .

On DATE ORG reduced the conviction to CARDINAL counts but upheld the sentence . It found that there had been no violation of the applicant ’s right to question the witness as guaranteed by LAW ( d ) of the LAW . Thus , the applicant ’s lawyers had been able to question C. during his interview in DATE where the latter had submitted that he had been subject to torture alluding to several symptoms in this regard . Further relevant new findings in this respect – a matter which the applicant did not contest – would not have been a realistic possibility . Moreover , ORG had read out C. ’s submissions made during the trial against the police officers , the judgment of ORG and the findings concerning PERSON ’s forensic examination . Furthermore , ORG had intensively but unsuccessfully tried to interview C. during one of its oral hearings , but C. had declined ORG offer to hear him via a video conference or to appear personally at the hearing . Finally , ORG had based its findings not only on C. ’s submissions , but on the testimony of numerous other witnesses and other means of evidence .

On DATE ORG refused to admit the applicant ’s constitutional complaint arguing that the courts had based their findings on different corroborating evidence . In so far as CARDINAL item of evidence alone was insufficient to establish that the applicant had committed the crime , the trial court had drawn its conclusions in a comprehensive and consistent manner from the entirety of the evidence at its disposal . Furthermore , the trial court had elaborated extensively on the question as to whether C. ’s testimony could be used as evidence and had examined the credibility of C. ’s submissions concerning his alleged torture . Finally , the defence had had the possibility to question C. during his interview before ORG . The fact that single questions had not been admitted was not open to objection as it was the procedural law of the state where the interview had taken place which decided on how to conduct the latter .

On DATE ORG rejected the motion of the applicant ’s lawyer to be granted access to the case files relating to proceedings concerning the forfeiture ( GPE ) of the applicant ’s assets .

Section CARDINAL § CARDINAL of LAW read in conjunction with section CARDINALa of LAW prohibits methods of examination which impair the witness ’s freedom to determine and to exercise his or her will , such as ill - treatment , induced fatigue , physical interference , the administration of drugs , torment , deception , hypnosis or coercion and the threat of such measures . Statements obtained in violation of this prohibition may not be used , even if the witness has given his or her consent .

Pursuant to the provisions of LAW , a witness shall be examined in person at the main hearing if the proof of a fact in issue is based on that person ’s observation . In principle , the witness ’s examination may not be replaced by reading out the record of a previous examination or by reading out a written statement ( Section CARDINAL of the said Code ) . According to the constant case - law of ORG , Section CARDINAL permits the hearing of witnesses giving hearsay evidence .

As an exception to the above - mentioned principle , the examination of a witness or co - accused may be replaced by reading out the written record of his previous examination by a judge . This is permitted if there are insurmountable impediments preventing the witness or co - accused from attending the main hearing for a long or indefinite period of time ( Section CARDINAL no . CARDINAL of the said Code ) .

The public prosecutor , the defendant and defence counsel have the right to be present at the examination of a witness by a judge outside the main hearing ( Section CARDINALc § CARDINAL of the Code of Criminal Procedure ) . A defendant who is detained and is represented by counsel is only entitled to be present at hearings of witnesses conducted at the court of the place where he is in custody ( Section CARDINALc § CARDINAL of the said Code ) .


The applicant was born in DATE and lives in GPE .

CARDINAL .

On DATE the applicant was taken into custody by police officers from the Anti - Terror branch of ORG ( Terörle Mücadele Şubesi ) on suspicion of aiding and abetting an illegal organisation , namely the ORG ( ORG ) , contrary to LAW .

On DATE the applicant was brought before a single judge of ORG . The applicant denied the veracity of his signed statements taken in detention , alleging that they had been obtained under duress . On DATE , the judge ordered his detention on remand .

On DATE the public prosecutor at ORG filed a bill of indictment , charging the applicant under LAW with aiding and abetting the ORG by engaging in propaganda for it .

On DATE ORG held its first hearing in the absence of the applicant . The court ordered that the applicant ’s detention on remand be continued as he could not be heard .

On CARDINAL DATE ORG held its second hearing in the presence of a military judge . The applicant was heard by the court . He denied having engaged in propaganda and stated that he had been merely watching the crowd shouting slogans . He further denied the statements taken in police custody and before the public prosecutor . He alleged that he had been forced to sign the impugned statements under duress . He asked the court to dismiss the charges and release him . Assessing the evidence against the applicant , the court dismissed his request and ordered his continued detention on remand .

On DATE ORG amended LAW and excluded military members from ORG . Following similar amendments made on DATE to the PERSON on ORG , the military judge hearing the applicant ’s case was replaced by a civilian judge .

On DATE ORG held a hearing . The applicant ’s representative requested his release . He further asked the court to hear evidence from CARDINAL witnesses . The court dismissed his requests . Considering the state of the proceedings , the court reasoned that the evidence to be given by the CARDINAL witnesses would not help to elucidate the facts .

On DATE ORG held another hearing . The applicant ’s representative submitted the applicant ’s written defence submissions and read them at the hearing . The court ordered that the applicant ’s detention on remand be continued .

On DATE ORG composed of CARDINAL civilian judges convicted the applicant as charged and sentenced him to CARDINAL years’ imprisonment under LAW .

On DATE ORG upheld the judgment . DATE , this decision was pronounced in the absence of the applicant ’s representative .

As required by law , the decision was deposited with the registry of ORG for the applicant ’s review .


LIETUVOS NACIONALINIS RADIJAS IR TELEVIZIJA AND TAPINAS AND CO LTD. v. LITHUANIA

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

The applicants , PERSON ir PERSON ( ORG ; “ the first applicant ” ) and PERSON ( a company of journalists ; “ the second applicant ” ) are NORP legal entities . They were represented before the ORG by PERSON PERSON , a lawyer practising in GPE . ORG were represented by their Agent , PERSON .

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

On DATE the first applicant placed on its Internet site notice of a forthcoming television ( “ TV ” ) broadcast entitled ' Money generation ' . This programme had been produced by the second applicant . The notice stated that the broadcast would reveal that “ an influential official and a well - known person openly asks for a bribe in return for his help in settling the gambling organisers ' problems . Who is he ? The answer will be given on DATE , TIME in the TV broadcast ' Money generation ' ” .

Having read this announcement , PERSON , a member of ORG , on DATE wrote to the first applicant , asking that the broadcast be deferred until certain information had been thoroughly analysed . He stated that the programme would damage his honour and dignity because it was defamatory . Nevertheless , the first applicant went ahead with the following broadcast :

PERSON ( the announcer and CARDINAL of the journalists at the company GPE ) : It 's ' Money generation ' on the air . If you follow public life in GPE at least a little , you might already know what we are showing you DATE .

( Vignette of the broadcast ' Money Generation ' is being shown )

PERSON ( the announcer ) : ( Announcement of the broadcast DATE views of a casino are being shown ) A dazzling casino and CARDINAL of naive people expecting to get rich in a moment . Big money , very big money – it lures .

( Recording taken by a secret camera is being shown )

Voice no CARDINAL : If you want ... I do n't like these things , you know ...

Voice no CARDINAL : I understand .

Voice no . CARDINAL : ... I have been working for DATE so far and I ...

Voice no . CARDINAL : I understand .

Voice no . CARDINAL : I know how it 's done .

Voice no . CARDINAL : Ok . Everybody , we live , still it will be needed in the future . In case I legalise paths will still cross , and this is ... Well ... My situation in PERSON is normal , why , well , this ...

PERSON ( the announcer ) : ( Announcement of the broadcast is continued DATE views of a casino are being shown ) “ An influential official and a well - known person openly asks for a bribe in return for his help in settling the gambling organisers ' problems . However , he does not know that he is being filmed ” .

PERSON ( the announcer ) : This will , however , be shown later in the broadcast . ( The recording is aborted )

The programme included a report , which was filmed with a hidden camera , of a conversation between PERSON and a businessman , showing the surname of PERSON in subtitles .

After the transmission , the second applicant gave the video material to ORG ( PERSON tyrimų tarnyba ) , which is the responsible authority in the fight against corruption in GPE . Having analysed the submitted material the latter reported that the video included a conversation between PERSON , who was a member of ORG , and the director of a private company , about the gambling business . During that conversation , the businessman had asked PERSON for help several times , without specifying the nature of such help , or any remuneration for it . During the same conversation , PERSON commented on the methods by which the businessman pursued his business . He also commented on certain decisions and actions of the ORG authorities . ORG concluded that no objective and unquestionable data about any corruption - related criminal activity was disclosed by the video . Therefore , there was no factual basis on which to start a pre - trial investigation into PERSON 's activities .

The recording was also examined by the Chief ORG ( ORG tarnybinės etikos komisija ) , which found that PERSON had not violated the applicable legislation . However , the Commission noted that , having unofficially consulted a person who was engaged in illegal gambling without informing ORG , PERSON had behaved improperly .

On DATE PERSON asked the first applicant to correct the statement in a future broadcast and to compensate him for non - pecuniary damage , but the first applicant did not comply with this request .

On an unknown date PERSON suspended his duties and took unpaid leave . Subsequently , he brought a civil action for defamation before ORG against the first applicant . The second applicant joined the proceedings as a third party .

In its response to the lawsuit , the first applicant argued that the information , which according to PERSON was untrue , was made public for the first time on DATE at TIME in another television channel 's news broadcast . In addition , the information had previously been published by the DATE newspapers ORG and PERSON . The first applicant stated that the authors of the television programme were honest , and that their main concern had been to inform society about potentially illegal actions by a public figure . The information in its Internet announcement represented the journalist 's opinion on the facts and a subjective evaluation of the events . The facts were ambiguous ; therefore the first applicant had the right to interpret them . PERSON was a public figure ; this allowed a critical opinion to be expressed about him . Consequently PERSON should have been more tolerant when reacting to criticism .

On DATE the ORG ruled in favour of PERSON The court noted at the outset that the information which formed the basis of the lawsuit had been published by the aforementioned newspapers after the first applicant had already placed its announcement on the Internet . Moreover , the first applicant failed to submit a recording of the above - mentioned other television channel 's news broadcast . Therefore , ORG found that the first applicant was precluded from relying on Article CARDINAL § CARDINAL.CARDINAL of the PERSON on the Provision of Information to the Public ( see Relevant domestic law part below ) .

Having considered the merits of the case , ORG noted that , pursuant to LAW , the data which had been made public was to be presumed to be erroneous unless the publisher proved the opposite . Given that the first applicant had failed to prove that the broadcast statement was true , as well as the fact that , in its report , ORG had found no objective and unquestionable data to prove the suspected corruption , ORG concluded that the information it had in its possession did not substantiate the accusation of alleged bribery . Nonetheless , the court partly agreed with the first applicant , in so far as the broadcast concerned issues of general public interest involving the criticable activities of a public official . The court took note of the conclusion of ORG that PERSON had acted improperly and that his actions had damaged society 's trust in the public service . Yet the court emphasised that disseminating untrue information about alleged bribery did not constitute justified criticism of PERSON 's activities .

ORG did not agree with the first applicant 's argument that the announcement of the future broadcast , and the broadcast itself , expressed an opinion to which the criterion of truth did not apply . According to the national court , the main point , that the ORG official had met a representative of an illegal business , was clear . The official 's behaviour was indeed unethical , but at no point during the conversation did PERSON ask for a bribe . Consequently , the first applicant could have interpreted the content of this meeting and the conversation negatively , but without any allegation of bribery . The court , whilst acknowledging that some of the applicants ' statements expressed an opinion , nevertheless noted that the categorical interpretation of the main point as a clear request for a bribe amounted to new information which did not correspond to reality . According to the court , this publicly disseminated statement about a proposed bribe could only be understood by the public as an allegation that a crime had been committed by PERSON

ORG also took into account the fact that , after the announcement of the broadcast , PERSON had requested the first applicant not to show the programme until the journalists ' information had been scrutinised . Despite this request , the first applicant had gone ahead with the transmission . In the opinion of the court , the first applicant had not acted honestly , as it had not taken all reasonable measures to evaluate PERSON 's actions based on correct and verified information .

ORG found that , by making the statement that “ an influential official and a well - known person openly asks for a bribe in return for his help in settling the gambling organisers ' problems ” both in the notice of the forthcoming ' Money generation ' broadcast and at the beginning of that broadcast , the first applicant had damaged PERSON 's reputation , and ordered it to correct that statement publicly . The court also ordered the first applicant to pay FAC NORP litai ( LTL ) ( MONEY ( ORG ) ) in compensation for non - pecuniary damage and LTL MONEY ( approximately ORG CARDINAL ) in litigation costs . The court rejected as unsubstantiated PERSON 's claim for pecuniary damage , which PERSON had allegedly sustained due to the need to take unpaid leave .

PERSON appealed , claiming that the award for non - pecuniary damage was too low . The second applicant appealed , claiming , inter alia , that the information contained in the broadcast was an opinion and not news and , therefore , the criterion of truth did not apply to it . Unlike the defence 's response to the lawsuit , the second applicant no longer argued that the statement about PERSON 's corrupt behaviour had been made public by other mass media before the ' Money generation ' programme was aired . Lastly , the second applicant maintained that the first - instance court had made too high an award for the litigation costs to be paid by the first applicant .

The first applicant did not appeal .

By a decision of DATE , ORG dismissed the appeal of the second applicant , upheld the decision of ORG and , in addition , awarded PERSON ( approximately ORG CARDINAL,CARDINAL ) in compensation for pecuniary damage to S.J.

On DATE the first and second applicants lodged a joint appeal on points of law , relying on LAW and the ORG 's judgment in the case of LOC v. GPE ( no . CARDINAL ) ( CARDINAL DATE , Series A no . CARDINAL ) and arguing , inter alia , that they had acted honestly in the interests of society and that , in their broadcast , they had merely expressed their opinion about PERSON , who was a public person and for that reason enjoyed less privacy . Again , the applicants no longer maintained that information about PERSON 's alleged corruption had been made public before the ' Money generation ' broadcast .

By a ruling of CARDINAL DATE , ORG refused to examine the cassation appeal , on the ground that it did not meet the requirements of Articles CARDINAL and CARDINAL § CARDINAL ( CARDINAL ) of LAW .

DATE the applicants lodged a new joint cassation appeal . Again , they argued that they had acted in good faith and had been punished for merely expressing opinions about a public figure . In support of their pleas , this time the applicants explicitly invoked LAW .

On DATE ORG , relying on Articles CARDINAL and CARDINAL § CARDINAL ( CARDINAL ) of LAW , refused to accept the cassation appeal , finding that the applicants had failed to demonstrate convincingly that the alleged breaches of procedural and substantive law had an essential significance for the uniform interpretation and application of the law and could have caused the adoption of an unlawful decision .

Article CARDINAL of the Civil Code regarding the protection of honour and dignity reads as follows :

“ CARDINAL . A person shall have the right to demand the refutation , in judicial proceedings , of publicised data which abase his honour and dignity and which are erroneous , as well as the redress of pecuniary and non - pecuniary damage incurred by the public announcement of the said data . Data which has been made public shall be presumed to be erroneous unless the publisher proves the opposite to be true .

Where erroneous data have been publicised in the mass media ( press , television , radio , etc . ) the person about whom those data were published shall have the right to file a correction and demand that the media publish the said correction free of charge , or make it public in some other way ...

Where the mass media refuse to publish the correction or to make it public in some other way ... the [ aggrieved ] person has the right to apply to a court in accordance with the procedure established in paragraph CARDINAL of the given LAW . The court shall establish the procedure and the terms of the refutation of the erroneous data which prejudiced that person 's reputation .

The mass media which have publicised erroneous data prejudicing a person 's reputation shall provide redress for any pecuniary and non - pecuniary damage incurred by that person only in cases when they knew , or should have known , that the data were erroneous , including those cases where the data were made public by their employees or ... anonymously , and the media refuse to name their source .

The person who publicly disseminates erroneous data shall be exempted from civil liability in cases when the publicised data relate to a public person and his ORG or public activities and the person who made them public can demonstrate that his actions were in good faith and intended to introduce the person and his activities to the public . ”

The relevant sections of the PERSON on the Provision of Information to the Public read as follows :

“ CARDINAL . The producers and/or disseminators of public information must correct published , false information which prejudices the honour and dignity of a physical person or damages the legitimate interests of a legal person , in particular their reputation .

A request to correct information shall be submitted to the producer or disseminator of the publicised information in writing not DATE after the publication ... The request shall specify the false information which requires correction , when and where it was published , and which statements ... are degrading to the honour and dignity of the person concerned ...

After receiving a reasoned request to correct published false information prejudicing the honour and dignity of a person , the producer or disseminator of that information must publish the correction free of charge and without comment , in an equivalent place , of an equivalent size and in the same form , in the nearest possible publication , television or radio broadcast , or in any other media where such information was published . A subsequent refutation shall not release the producer of that information from liability . ”

“ CARDINAL . A producer of public information shall not be liable for the publication of false information if he indicates his source ... and that the information has been : ...

CARDINAL ) published previously in other mass media , if the information has not been corrected by the mass media in which it was published . ”

The Code of Civil Procedure , as relevant in this case , provides :

“ CARDINAL . Cassation is possible only if the grounds enumerated in this Article exist .

The grounds for reviewing a case in cassation are :

CARDINAL ) a violation of the rules of substantive or procedural law , such violation having an essential significance for the uniform interpretation and application of the law if this violation could have caused an unlawful ruling or decision to be adopted ;

CARDINAL ) if in its decision or ruling which has been appealed against the court has deviated from the practice in the application and interpretation of the law , as formulated by ORG ;

CARDINAL ) if ORG practice in respect of the disputed issue is not uniform . ”

“ CARDINAL . The cassation appeal ... shall contain : ...

Extensive legal arguments , which confirm the existence of grounds of cassation , as enumerated in LAW ... ”

LAW ( DATE ) of LAW provides that the ORG shall refuse to accept a cassation appeal if it does not meet the requirements of ORG and CARDINAL thereof . If the cassation appeal has been rejected for the above reason , a party to the proceedings can rectify the shortcomings and submit a new cassation appeal ( LAW ) .

Article CARDINAL of LAW , which creates criminal liability for bribery , stipulates that a civil servant who , in favour of others , directly or indirectly demanded or provoked the giving of a bribe for a specific legal act or omission , is to be punished by the deprivation of the right to hold a specific position or engage in certain activity , or by imprisonment of DATE .


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

He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .

A.

The applicant was arrested on DATE and detained on DATE under suspicion of complicity in a murder . On DATE he was charged , inter alia , with murder before ORG ( kihlakunnanoikeus , häradsrätt ) . He was accused of committing the murder of L together with PERSON The charge had already been brought against K on DATE and there had been CARDINAL previous hearings in the case . In these hearings CARDINAL witnesses had given evidence in ORG presence .

The applicant and K , who both had been on the scene of crime , denied having shot L and accused one another .

In the CARDINAL hearings that followed the applicant 's apprehension , ORG heard evidence from the CARDINAL accused and from CARDINAL of the previously heard and CARDINAL new witnesses , some of whom were called by the applicant .

In the hearing on DATE the applicant 's legal counsel stated that witnesses should be examined in the presence of the accused and the accused should be allowed to put questions to witnesses .

In the hearing on DATE ORG called CARDINAL witnesses LAW and GPE , among others . ORG was the victim 's girlfriend and GPE an acquaintance of the accused . ORG requested evidence from these witnesses to be heard in the absence of the applicant and PERSON They had already given evidence in ORG presence in the previous hearings . No objection from the applicant 's part was entered in the record . Under LAW , LAW , LAW , of LAW ( oikeudenkäymiskaari , rättegångsbalken , see below ) ORG accepted ORG request . The applicant 's legal counsel examined the witnesses . After the testimonies were given , the presiding judge summarised them to the applicant and K , who were then allowed to put further questions to the witnesses .

In the hearing on DATE the ORG heard testimony from ORG , an acquaintance of the applicant and K , in their absence . ORG had earlier given evidence in ORG presence . The applicant 's legal counsel was able to examine the witness . When asked after the testimony , the applicant did not have further questions to ORG . The witness GPE gave testimony anew , this time in the presence of the applicant and ORG also heard testimony from ORG , who had already given evidence in the hearing on DATE . This time ORG requested ORG to be examined without the applicant and ORG presence , but the request was rejected . However , during ORG 's evidence the applicant and K were removed from the courtroom , as ORG got the impression that the witness failed to tell what he knew when the accused were present . The applicant 's legal counsel continued to examine the witness . After ORG 's testimony , the presiding judge summarised it briefly to the applicant and K , who were then allowed to put further questions .

Other witnesses ' testimonies before ORG were heard in the presence of the applicant and PERSON

On DATE , ORG convicted the applicant of murder and other offences and sentenced him to life imprisonment . It based the judgement on the testimonies of the CARDINAL accused and the witnesses . When evaluating the testimony of the applicant , ORG took into consideration that the applicant had had the opportunity to follow the news reports of the proceedings prior to his arrest .

Immediately after the pronouncement of ORG judgment , the applicant gave notice of his intention to appeal and asked for a copy of the reasons of the judgment . On DATE ORG informed the applicant 's legal counsel that a copy of ORG record , including the judgment , could be fetched after TIME On DATE the applicant requested DATE extension of time for appeal . ORG rejected the request on DATE . The time for appeal expired on DATE .

The applicant appealed against the judgment of DATE and the decision of DATE to ORG ( hovioikeus , hovrätt ) . On DATE , ORG rejected the appeals . As regards the murder charge , it stated : ( translation from NORP ) “ There is no reason to change ORG judgment . ”

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

B. Relevant domestic law

The relevant domestic law as in force at the relevant time :

According to LAW , Subsection CARDINAL , of the Code of Judicial Procedure , the court may decide to hear a witness in the absence of a party , if the witness for fear of the party or for some other reason fails to tell what he knows about the matter , or if the party interferes with the witness 's testimony or tries to confuse the witness . The testimony must be read to the absent party and he must be allowed to put further questions to the witness .

According to LAW , Section CARDINAL , of the Code of ORG procedure , a party who wishes to appeal against a ORG judgment must give notice of his intention to appeal within DATE from the pronouncement of the judgment . Section CARDINAL , Subsection CARDINAL , of the LAW provides that the time - limit for filing an appeal is DATE from DATE the judgment was pronounced .

According to Chapter CARDINAL , Section CARDINALa , Subsection CARDINAL , of the Code of Judicial Procedure , a copy of a ORG judgment must be available to a party who has given notice of his intention to appeal within DATE from the pronouncement of the judgment in the registry of ORG .

According to LAW , Section CARDINAL , Subsection CARDINAL , of the Code of Judicial Procedure , if a party , who has given notice of his intention to appeal , can not appeal within the time set due to a legal impediment or some other acceptable reason , ORG may set a new time limit for appeal .

According to Chapter CARDINAL , Section CARDINAL , of the Code of Judicial Procedure , an appellate court must not repeat the reasons of the lower court 's decision when upholding the decision . When further reasons are found , they may be added .


Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE , a town in LOC .

As a victim of GPE , the applicant was entitled to benefits . Considering himself underpaid , he brought CARDINAL actions against a local welfare authority .

On DATE the ORG awarded the applicant MONEY ( RUB ) in arrears . This judgment became binding on DATE and was enforced on DATE .

On DATE ORG awarded the applicant RUB CARDINAL,CARDINAL,CARDINAL.CARDINAL in arrears and fixed a new amount of periodic payments . This judgment became binding on DATE . The welfare authority considered that the award contained an error to the extent that it had not taken into account a past payment . For this reason , on DATE ORG clarified the judgment and reduced the award to RUB CARDINAL,CARDINAL.CARDINAL . The judgment was enforced by CARDINAL DATE .

Under LAW of DATE , a bailiff must enforce a judgment within DATE . Under section QUANTITY of LAW of DATE , ORG must enforce a judgment within DATE .