Preliminary objection joined to merits (six-month rule);No violation of Art. 6

Javier Borrego Borrego;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova

The applicant owned a house in the village of ORG where he resided at the time of the events .

On DATE the cables supplying the village with electricity were stolen .

On DATE a preliminary investigation was opened against the applicant and CARDINAL other individuals for the theft of the electricity cables .

On DATE the applicant , assisted by a lawyer , was charged with the theft of the electricity cables and a restriction was imposed on him not to leave the village of ORG without the authorisation of the public prosecutor ’s office .

The preliminary investigation was concluded on an unspecified date and the case was forwarded to the public prosecutor ’s office . On an unspecified date the case was remitted for further investigation .

On DATE the charges against the applicant were amended ; he was once again assisted by a lawyer .

NORP The results of the preliminary investigation were presented to the applicant and his lawyer on DATE .

On an unspecified date the applicant left the village of ORG without authorisation from the public prosecutor ’s office . He claimed to have moved to live at an address in GPE which was registered with the police and where he received his pension .

On an unspecified date the public prosecutor ’s office entered an indictment against the applicant and his CARDINAL accomplices with ORG for the theft of the electricity cables .

A copy of the indictment was sent to the applicant ’s address in the village of ORG , apparently by registered post with return receipt . The indictment and the receipt were returned to ORG in their entirety and without an indication whether they had been served .

The first hearing before ORG was scheduled for DATE , but was postponed , for undisclosed reasons , to CARDINAL DATE .

A summons to the first hearing was sent to the applicant ’s address in the village of ORG , which was returned without any indication whether it had been served . In an accompanying letter , the mayor of the village of ORG informed ORG that the applicant was not registered as living in the village , that he had not resided there for DATE and that he had moved to the city of GPE .

At the hearing on DATE the ORG established that the applicant had not been duly summoned because he had not received the summons . Nevertheless , at the request of the public prosecutor ’s office , the court decided to examine the case in his absence as it found that this would not impede the proceedings , and assigned a court - appointed lawyer to represent the applicant .

The second hearing was conducted on DATE ; the applicant was summoned to it through his court - appointed lawyer .

In a judgment of CARDINAL DATE ORG found the applicant and his accomplices guilty as charged . The applicant was sentenced to CARDINAL years’ imprisonment .

No appeal was lodged against the judgment , so it became final on DATE .

The applicant was arrested on DATE to serve the prison sentence , which he did until DATE .

On an unspecified date in DATE the applicant requested ORG to reopen the criminal proceedings against him . He relied on Article CARDINALa of the Code of Criminal Procedure DATE ( “ ORG ” : see Relevant domestic law below ) and claimed that he had not been aware of the criminal trial against him . The applicant argued that even though he had been aware of the preliminary investigation against him he could not be expected to constantly follow the subsequent development of the proceedings against him . Moreover , as he had not received the indictment entered against him by the public prosecutor ’s office , he had been unaware that formal court proceedings had been initiated against him . The applicant also argued that once the authorities had established that he was no longer residing in the village of ORG they should have attempted to find him at his other address in GPE , where they would have found him without difficulty .

NORP In a judgment of CARDINAL DATE ORG dismissed the applicant ’s request to reopen the case . It found that the applicant had been aware of the criminal proceedings against him because he had been present , together with his lawyer , when he had been initially charged on DATE , when the charges had been amended on DATE and also when the results of the preliminary investigation had been presented on DATE . Moreover , he had violated the restriction order imposed on him not to leave the village of ORG without the authorisation of the public prosecutor ’s office and had moved to another address without informing the said authorities . Thus , the court found that the applicant had wilfully made himself unavailable to participate in the criminal proceedings against him and had lost the right to seek their reopening .

The ORG , revoked in DATE , allowed trial in absentia in certain limited instances . It provided in Article CARDINAL § CARDINAL , as in force at the relevant time , the following :

“ When it would not hamper the ascertaining of the truth , the case can be examined in the absence of the accused if :

[ he ] was not found at the address he had given or had changed it without informing the competent authorities ;

[ he ] was duly summoned and had not indicated a good cause for his failure to appear . ”

When an accused was tried in absentia , there was a statutory requirement that he be represented by an ex officio counsel ( LAW ) of the ORG ) .

Until DATE NORP law did not provide for the reopening of criminal cases heard in absentia . Thereafter reopening became possible in cases where the convicted person was unaware of the criminal proceedings against him or her and had submitted a request for a reopening within DATE of learning of the conviction ( Article CARDINALa of the ORG ) . The request was examined by ORG ( Article CARDINAL of the ORG ) , which could quash the conviction and either order a rehearing of the case ( LAW ORG ) or discontinue or suspend the criminal proceedings ( LAW ORG ) .

The NORP courts’ prevailing practice has been summarised in the ORG ’s judgment in the case of GPE v. GPE ( no . CARDINAL , § § CARDINAL , DATE ) .

In further judgments , ORG stated that a convicted person can not claim not to have been aware of the criminal proceedings against him if he had been charged with the offence in question in the course of the preliminary investigation and had had a restriction placed on him not to leave his place of residence without the authorisation of the public prosecutor ’s office ( решение № CARDINAL от CARDINAL г. по ORG № CARDINAL г. , LOC ; решение № CARDINAL от CARDINAL.CARDINAL.CARDINAL г. по ORG № CARDINAL г. , LOC ) . Moreover , it considered that it was irrelevant whether in such instances the convicted person was actually seeking to evade justice or had simply moved to another address without having duly informed the competent authorities where he could be summoned ( решение № CARDINAL от CARDINAL г. по ORG № ORG г. , II н.о. на ВКС ) .

The new Code of Criminal Procedure DATE provides for the reopening of criminal cases heard in absentia in cases where the convicted person was unaware of the criminal proceedings against him or her , including of the conviction , and had submitted a request for a reopening of the case within DATE of learning of the conviction ( LAW ) .

In the first reported case under the new rule , ORG restated its understanding that the possibility for reopening of criminal cases heard in absentia aimed to restore the right of the convicted person to participate personally in the criminal proceedings , which he or she had previously been denied for reasons outside his or her control . In particular , its aim was not to be of benefit to convicted persons who had known of the criminal proceedings against them , but had belatedly learnt of their conviction because they had absconded or had avoided participating in the court proceedings ( решение № CARDINAL от CARDINAL г. по ORG № CARDINAL г. , I н.о. на ВКС ) .


The applicant , a NORP citizen born in DATE , is on an early retirement pension and lives in GPE , GPE .

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

A.

On DATE the applicant ’s insurance company refused the applicant ’s request for compensation for an occupational injury ( a rash ) . The company considered that his rash was neither an occupational illness nor a substantial aggravation of another illness within the meaning of the CARDINAL LAW ( tapaturmavakuutuslaki DATE , lag om olycksfallsförsäkring ) .

In his appeal to ORG ( tapaturmalautakunta , olycksfallsnämnden ) on DATE the applicant required that the decision of the insurance company be overturned and that his rash be compensated as an occupational illness .

ORG requested the insurance company to provide it with the relevant documents and an opinion . In its opinion the insurance company simply suggested that the appeal be dismissed on the grounds mentioned in the company ’s decision . Without obtaining further evidence or making the opinion available to the applicant , ORG gave a decision on the matter on DATE , dismissing the applicant ’s appeal . The grounds for the decision summarized section CARDINAL of LAW ( ammattitautiasetus CARDINAL/CARDINAL , yrkessjukdomsförordning ) which explains when an illness can be considered as an occupational one . It was further noted in the decision that the applicant ’s work had no causal connection with his rash and that therefore the rash was not an occupational illness . Nor had the work of the applicant aggravated his long - term chronic rash caused by an illness . It was noted in the decision that the insurance company had proposed that the appeal be dismissed .

On DATE the applicant appealed to ORG ( vakuutusoikeus , försäkringsdomstolen ) repeating his claim . He argued that his rash had appeared when he had started working for the storehouse in DATE and that it had always got worse when he had returned to work after a period of sick leave . According to the documents , no further evidence had been attached to the appeal .

ORG requested an opinion from the insurance company . In its opinion the insurance company merely stated that there was no reason to overturn the appealed decision . Without obtaining further evidence or making the opinion available to the applicant , ORG gave a decision on the matter on DATE , dismissing the appeal on the grounds mentioned in the decision of ORG . It was indicated in the decision that an opinion had been acquired from the insurance company .

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

B. Relevant domestic law and practice

According to section CARDINAL of LAW , the appeal bodies in cases concerning accident insurance are ORG , ORG and ORG . The members of ORG , which is the appeal body of first instance , include a full - time president , CARDINAL vice - presidents , CARDINAL lawyers and CARDINAL doctors and QUANTITY persons representing the labour market organisations . ORG is a special appeal body designed to deal with cases concerning accident insurance . According to section CARDINAL of the Decree on ORG ( asetus tapaturmalautakunnasta CARDINAL/CARDINAL , förordning om olycksfallsnämnden ) , the rules of procedure in civil cases are applied to the ORG ’s procedure .

An appeal from a decision given by ORG is made to ORG which is a special court for the consideration of cases concerning social security . According to ORG ( laki vakuutusoikeudesta CARDINAL , lag om försäkringsdomstolen ) , the rules of procedure of the ordinary courts are applied to ORG , save for certain exceptions .

An appeal from a decision given by ORG can be made to ORG , inter alia , in cases where ORG has given a ruling on the right to compensation for an injury , illness or death . An appeal to ORG is subject to leave to appeal granted by ORG in accordance with LAW , section CARDINAL , of the Code of Judicial Procedure ( oikeudenkäymiskaari , rättegångsbalken ) .

Leave to appeal may be granted if it is necessary for the application of law in similar cases or for the uniformity of case - law to bring the case before ORG , or if there are special grounds for this due to a procedural or other fault that requires the reversal or nullification of a judgment , or if there are other weighty grounds for granting leave to appeal .

ORG and the ORG apply mainly the principles derived from the rules of procedure of the courts of appeal . As in force at the relevant time , and insofar as the relevant for issues in the present case , LAW provided as follows . According to LAW , sections CARDINAL , the opposing party shall be heard in appeal courts proceedings . According to LAW , section DATE , subsection CARDINAL , a copy of the observations of the opposing party are given to the applicant on request . According to LAW , section CARDINAL , the court of appeal shall request written observations from the parties when it obtains evidence on its own initiative and such evidence may affect the decision in the case , unless this is manifestly unnecessary .

In its GPE v. GPE judgment of DATE the ORG noted that , according to what had been stated on behalf of the Government at the hearing , it was the practice both of ORG and ORG not to communicate documents of the kind in question in that case ( Series A no . CARDINAL , p. CARDINAL , § MONEY ) . Following the PERSON judgment ORG has instructed its members and staff to see to it that a party be heard ( in writing ) in respect of " new information , unless this is clearly unnecessary " . In respect of " observations in reply " a party shall always be heard ( instruction of DATE ) .


Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

The applicant was the mayor of the NORP District in GPE at the time of the events . In DATE , the Culture and Education Department of ORG , which was in charge of organising public activities and events during religious and national days , prepared a DATE programme for DATE . The draft programme was submitted to the applicant for his approval . Upon his authorisation , the organising committee started the necessary preparations .

One of the events , which had been foreseen for DATE , was called the “ Jerusalem Night ” . The aim of this event was to protest against the genocide and oppression of NORP in GPE and GPE . The Ambassador to GPE and a journalist called PERSON were invited to the event as speakers . Furthermore , a TIME play was written for TIME . The play took the form of a conversation between a father and his son about life in GPE and the struggle of the NORP people .

The event was announced DATE in advance and representatives of several embassies as well as important personalities living in the district were invited . The meeting hall was decorated with posters of martyrs who had given their lives for the liberation of GPE . The applicant made the opening speech .

On DATE the applicant was taken into police custody . He was accused of disseminating propaganda in support of an armed illegal organisation , namely the ORG , and of provoking hatred and hostility on the basis of a distinction between races and regions .

In his statement taken at the police station , the applicant stated that the “ Jerusalem Night ” was organised as part of a DATE programme during DATE and it was an activity of ORG . He explained that the posters portrayed NORP leaders who had given their lives for the liberation of GPE . The applicant denied having connections with any illegal organisation .

On DATE the applicant was brought before the public prosecutor . During his questioning , he repeated the statements he had made at the police station . He pointed out that his speech did not contain any elements that would provoke hatred amongst those who did not wear headscarves .

On DATE the applicant was brought before the investigating judge attached to ORG . In his statement taken by the investigating judge , the applicant explained that he supported the secular system and did not approve of the regime in GPE . He stated that he had no connections with any terrorist organisation . He was subsequently placed in detention on remand .

In an indictment dated DATE , the public prosecutor attached to ORG initiated criminal proceedings against the applicant . It was alleged that he had disseminated propaganda in support of an armed , illegal organisation and that his actions had amounted to incitement to hatred and hostility on the basis of distinctions between races and regions . The prosecution called for the applicant to be sentenced pursuant to ORG and CARDINAL of LAW and LAW .

NORP Before ORG , which was composed of CARDINAL judges including a military judge , the applicant contested the charges against him . He argued that the “ GPE TIME ” was part of the social activities of ORG and that he did not intend to incite people to hatred and enmity . He had emphasised the importance of unity and solidarity during his speech . He stated that he was joking when he said that the Shariah would be forcibly injected into secularists .

On DATE the applicant was released from detention on remand pending trial .

NORP Before delivering its judgment , ORG firstly established the status of ORG in GPE . In this respect , it relied on a report prepared by ORG ( ORG ) , dated DATE , which referred to the structure and goals of ORG . The court further based itself on another report prepared by ORG , dated DATE . In this report , it was stated that ORG had been involved in many terrorist attacks throughout GPE . Finally , the court examined a report from a book called “ the LOC File ” ( PERSON ) , which was published by ORG . In the light of all the evidence before it , the court rejected the applicant 's assertions that ORG was not active in GPE and that it was solely a national movement which operated in GPE .

On DATE ORG concluded that the applicant had aided and abetted a terrorist organisation , by making propaganda for it and by inciting persons to hatred and enmity by discriminating against class , religion and region . It found the applicant guilty as charged and sentenced him to DATE and DATE imprisonment . The court further disbarred the applicant from public service for DATE .

The applicant appealed to ORG . In his submissions to ORG , the applicant defended himself against the charge of incitement to hatred and enmity , contrary to LAW , and argued that he had called for unity and solidarity in his speech .

On DATE ORG dismissed the applicant 's appeal , upholding ORG assessment of evidence and its reasons for rejecting the applicant 's defence .

A full description of the domestic law may be found in PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .


Violation of P1-1;Not necessary to examine Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

On DATE ORG and Highways ( ORG ) expropriated plots of land belonging to the applicants in GPE in order to build a motorway . A committee of experts assessed the value of the plots of land and the relevant amount was paid to the applicants when the expropriation took place .

Following the ORG requests for increased compensation , on DATE , ORG of First - instance awarded them additional compensation of CARDINAL NORP Liras ( GPE ) , plus interest at the statutory rate , applicable at the date of the court ’s decision , running from CARDINAL DATE , the date of the transfer of the title - deeds .

On DATE ORG upheld the judgment of the first - instance court .

On DATE ORG and Highways paid the applicants TRL CARDINAL ( approximately QUANTITY ( EUR ) ) , including interest .

The relevant domestic law and practice are set out in ORG v. GPE ( judgment of DATE , Reports of Judgments and Decisions CARDINAL-IV ) .


CAMPMANY Y DIEZ DE REVENGA and LOPEZ-GALIACHO PERONA v. SPAIN

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

The first applicant is the editor of a general news magazine , PERSON , and the legal representative of the company that publishes the magazine . The second applicant is a journalist .

In its edition of CARDINAL DATE the magazine ORG referred in its “ Prying Eye ” column to what CARDINAL of its journalists called “ a new sex scandal between an attractive aristocrat and a banker from this country ” and to the existence of pictures immortalising their encounter in a GPE hotel . The rumour was widely repeated in the media , although the persons to whom the ORG story related were not identified .

On DATE , while on air with the presenter of the Radio CARDINAL programme “ Night Carmen ” broadcast by ORG , a journalist , GPE , referred to the rumour and identified the Duchess of PERSON and PERSON as the protagonists of “ the much - publicised romance between the aristocrat and the banker , both married with lots of children ” and gave the names of their spouses .

In its CARDINAL DATE edition , PERSON , of which the first applicant was the editor , published an article by the second applicant concerning the alleged adulterous relationship . Photographs of the CARDINAL people concerned appeared on the magazine cover with the following caption : “ Suspected relationship between ORG and ORG ; a new scandal breaks ” . In a CARDINAL - page report that included CARDINAL photographs of the persons implicated in the alleged relationship and photographs of their families , the second applicant referred to the rumours circulating about the romance in the media and said that those involved had been identified by Radio nacioñal PERSON . A reference was also made to information that had appeared in another report .

In the article the Duchess of M. ’s husband was described as debonair , very chubby and known to his former classmates as “ el platillo ” ( “ the saucer ” ) . Then , after giving the names of the children and the occupational activities of both PERSON , the second applicant added : “ the family ties make this saga resemble an NORP television series ” . He repeated statements made in another magazine that “ the mysterious couple ’s chosen love nest was a luxury GPE hotel where they were caught by the photographer in CARDINAL compromising situations ” , the first at the hotel entrance and the second during a romantic encounter in the hotel corridors . The report was accompanied by the words of lewd ditties containing allusions to women , not only courtesans , but also duchesses who ended up getting the “ Booty ” ( a reference to ORG ’s surname , PERSON ) and instructing LANGUAGE women in the techniques of pleasure and who chased after bankers who were only too happy to oblige , paying scant regard to their qualities since their sole interest was money – “ Booty ” ( PERSON ) .

Furthermore , a second report by the second applicant was published in another edition of the magazine that appeared on DATE under a title that was published on the cover : “ The continuing enigma of the banker and the aristocrat : PERSON and the Duchess of PERSON deny any relationship ” . CARDINAL large photographs of the couple appeared on pages CARDINAL and DATE . An account was given of the history of the case and references made to an attempt by ORG to have copies of ORG seized and to other judicial proceedings he had brought . The magazine also explained that the compromising photographs had still not been published .

As a result , the Duchess of M. and her husband brought a civil action before the GPE first - instance judge no . CARDINAL against the applicants and CARDINAL reporters from ORG on the basis of ORG no . CARDINAL of CARDINAL DATE on ORG , Private and Family Life and to ORG One ’s Likeness .

In a judgment delivered on DATE after adversarial proceedings the GPE first - instance judge no . CARDINAL found in favour of the claimants in the civil action , holding that they had been the victims of an unlawful interference with their right to honour and to respect for their private life .

He gave inter alia the following reasons in his judgment :

“ CARDINAL : honour as an authentic personality right may be offended by acts or interferences ... that entail a loss of esteem for a person either in the eyes of fellow citizens ( the objective aspect ) or in his or her own eyes ( the subjective aspect ) . Under DATE of the current LAW honour is ranked as a fundamental right and even though section CARDINAL of the Institutional Law recognises and protects freedom of expression , that freedom is circumscribed in particular by the right to honour , to private life and to control one ’s likeness ...

CARDINAL : the information provided by ORG and PERSON magazine constitutes an intolerable interference with the PERSON honour which it is for the courts to remedy ... by setting the limits on the rights to impart information and to freedom of expression , the pillars of all democracies . In order to guide judges when they consider a defendant ’s conduct unlawful the courts have established a series of principles to assist them in the performance of the delicate task of weighing up the various competing interests or , to coin the NORP - American expression , “ balancing ” , which entails weighing in the balance the various circumstances capable of being defined in law so as to determine which of the rights in issue must prevail , the right to impart information or the right of others to respect for their honour or privacy or to control the use made of their likeness ...

CARDINAL : ... As regards the written publication , the representatives acting for the defendants linked to the magazine PERSON cleverly retort that the reports did no more than transmit ‘ journalistic information’ to its readers , as simple ‘ scribes of ORG made by others . Although that affirmation is true because the defendants have not produced anything of substance of their own in the magazine , it nevertheless can not serve to justify their conduct as they also had a duty to seek out the truth in a diligent manner ... as the reports did not merely repeat information that had been disseminated by others but were published as items of scandal or sensation .

CARDINAL : an important detail that concerns all the defendants is the indisputable fact that the claimants are not public figures who , as ORG has indicated , are afforded reduced protection under LAW as regards freedom to impart information on their activities that are of public interest or social utility ... The claimants have not freely chosen to become public figures and , although they have a certain social standing , it is not something they have sought , as it neither appears nor has been proved that they desired publicity ... ” .

After dealing with the content of the reports in another paragraph of the judgment , the judge held : “ the intentionally disproportionate use of scandalous or disparaging terms and the use of innuendo about matters for which there is not the least shred of evidence constitute unlawful practices that were clearly perpetrated by the magazine PERSON ” .

As a consequence , the judge ordered the applicants to publish the full text of the judgment in the same column of ORG , using the same typeface as that used in the report , and with an announcement of the judgment on the cover . ORG was ordered to broadcast the text of the judgment on its frequencies in the same programme . The applicants and ORG were also ordered to make reparation for the damage sustained by the victims in an amount to be assessed at the execution stage of the judgment , according to the criteria it laid down .

The applicants appealed against that judgment to ORG , which , in a judgment of DATE , dismissed the appeal and upheld the impugned decision .

An appeal on points of law was dismissed by ORG on DATE . It held that the courts below had correctly decided the issues and had not infringed the applicants’ constitutional right to communicate or impart true information . It added that freedom of expression was curtailed by an obligation to omit anything which could be injurious or offensive and was unnecessary in the expression of ideas , opinions or value judgements . The report in question had focused on scandal and sensationalism , without any attempt being made to articulate a healthy public opinion .

Relying on Articles CARDINAL ( right to a fair hearing ) and CARDINAL ( right to freedom of expression and to information ) of the LAW , the applicants lodged an appeal with ORG . In a decision of DATE , which was served on the applicants on DATE , ORG dismissed the appeal as ill - founded . With regard to the complaint under LAW , it held :

“ ... As a practical matter , as regards the so - called ‘ neutral ORG , this court stated in its judgment no . CARDINAL , which was cited by the appellants : ‘ when a media body divulges statements made by a third party that suggest that there has been an interference with the rights recognised by Article CARDINAL of LAW , that divulgation is not entitled to the protection of LAW unless the truth of the statements attributed to the third party is proved and the statements ... relate to facts or circumstances of public importance’ . Further , in judgment no . CARDINAL/CARDINAL ... , it expressly added : ‘ a report that is neutral in form or content may cease to be so if it assumes an informative character which is in practice incompatible with its function as a mere conduit for the ORG ( paragraph CARDINAL of the judgment ) . Thus ORG decision on the conflicting constitutional rights in the instant case , which is set out in its judgment upholding the judgments of the first - instance judge and FAC , is consistent with the case - law cited above . ORG ... does not contest that , as a transcription of the information broadcast by Radio nacional , the information published by PERSON enjoyed formal protection as it satisfied the requirement of truth explained in judgmentjudgment on the issue of the freedom to impart information that also led ORG to find that the report in question had overstepped the bounds within which freedom of expression may legitimately be exercised ... That finding is entirely consistent with the constitutional case - law applicable on the subject ... ”

“ CARDINAL . The following rights shall be recognised and protected :

( a ) the right freely to express and disseminate thoughts , ideas and opinions by word of mouth , in writing or by any other means of reproduction ;

( d ) the right freely to receive and communicate true information by any means of dissemination .

The exercise of these rights may not be restricted by any prior censorship .

These freedoms shall be limited by respect for the rights secured in this Part , by the provisions of the implementing Acts and in particular by the right to honour and to a private life and the right to control use of one ’s likeness and to the protection of youth and children . ”


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

In DATE the applicant took part in a rescue operation on the site of the GPE nuclear disaster . As of DATE the applicant has been in receipt of social benefits in this connection .

On DATE the ORG ( “ the FAC ” ) granted the applicant 's claim for unpaid social benefits and ordered the pension authority to make him DATE payments of MONEY ( RUR MONEY ( ORG ) ) and a CARDINAL - time payment of ORG CARDINAL ( approximately EUR CARDINAL,CARDINAL ) . This judgment came into force on CARDINAL DATE . The sums due pursuant to the judgment of DATE were paid in full on CARDINAL DATE .

By a judgment of CARDINAL DATE ORG granted the applicant 's claim for other unpaid social benefits and ordered the authority to pay him RUR CARDINAL,CARDINAL.CARDINAL ( approximately ORG CARDINAL ) DATE and also to make him a CARDINAL - time payment of ORG CARDINAL,CARDINAL ( approximately FAC ) .

It appears that the judgment was not appealed against by the parties and came into force on DATE . The respective award was paid in full on DATE .

On DATE ORG examined and granted the applicant 's claim to index - link the social benefits in line with the minimum DATE wage using coefficient “ CARDINAL ” . It does not appear that the parties challenged the judgment on appeal and on DATE it came into force . It appears that the authority disagreed with the judgment and refused to enforce it .

On DATE ORG , acting by way of supervisory review upon the application of the President of ORG under the old Code of Civil Procedure which , in its relevant part , remained in force until DATE , set aside the judgment of CARDINAL DATE and remitted it to the first instance court for a fresh examination on the ground of a serious breach of substantive law .

It appears that on CARDINAL DATE the domestic courts re - examined and eventually rejected the applicant 's claim . The respective judgment came into force on DATE .

By a judgment of DATE ORG examined and granted the applicant 's claim for damages in respect of delays in the enforcement of the judgment of CARDINAL DATE .

The court ordered the authority to make him a CARDINAL - time payment of FAC ( approximately EUR CARDINAL,CARDINAL ) and DATE payments of ORG MONEY ( approximately ORG CARDINAL ) starting from DATE . This judgment was rectified by the ORG decision of DATE and later approved by ORG on DATE .

It appears that eventually the authority was ordered to pay the applicant ORG ( approximately ORG CARDINAL,CARDINAL ) one - time and RUR CARDINAL,CARDINAL.CARDINAL ( QUANTITY ) on a DATE basis .

It appears that the judgment was re - opened and quashed on the ground of new circumstances by ORG on DATE . The court considered that the quashing of the judgment of CARDINAL DATE constituted a new relevant fact and quashed the judgment of DATE accordingly . Subsequently , the court decided to reject the applicant 's claims .


Anatoly Kovler;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The first applicant , Mr PERSON , was born in DATE and died on CARDINAL DATE . He was a NORP national . The second applicant , PERSON PERSON , is a NORP national who was born in DATE and lives in PERSON . She is the first applicant 's daughter and his sole heir . Before the ORG both applicants were represented by PERSON PERSON ORG , a lawyer practising in PERSON . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

On DATE the administrative authorities issued a decision expropriating a plot of land in PERSON , together with the house built on it , with a view to building a public elementary school there . At that time , the house was owned by the first applicant who lived in it together with his wife and daughter ( the second applicant ) . Even though the decision stipulated that the house was to be demolished , it appears that this never happened and that the applicants remained living there . The second applicant left the house in DATE , after she got married .

As the first applicant and the local authorities ( who were the beneficiaries of the expropriation ) had not been able to agree on the amount of compensation that should be granted for the expropriated property , on CARDINAL DATE non - contentious proceedings for determining the said compensation were instituted before ORG . The parties to those proceedings were the first applicant , on CARDINAL side , and the local authorities , on the other . The second applicant acted as her father 's representative in those proceedings .

On DATE ORG issued a decision awarding the first applicant CARDINAL,CARDINAL,CARDINAL.CARDINAL NORP dinars ( ORG ) in compensation . On DATE ORG dismissed the first applicant 's appeal and upheld the first - instance decision . On CARDINAL DATE ORG allowed the first applicant 's appeal on points of law ( revizija ) , quashed the lower courts ' decisions in part and remitted the case back to the first - instance court . It instructed the first - instance court to determine whether , apart from the sum already awarded on CARDINAL DATE , the first applicant should receive an additional amount of compensation .

In the resumed proceedings , on DATE ORG issued a decision awarding the first applicant the additional amount of ORG CARDINAL . On DATE ORG allowed the first applicant 's appeal , quashed the first - instance decision and remitted the case .

In the resumed proceedings , on CARDINAL DATE ORG dismissed the first applicant 's claim for additional compensation . On DATE ORG allowed his appeal , quashed the first - instance decision and remitted the case .

In the fresh proceedings , ORG held a hearing on DATE . On DATE LAW entered into force . Shortly afterwards , the case was transferred to the administrative authorities , in particular the regional office of the state administration in GPE ( ORG ) .

In the ensuing administrative proceedings , ORG held hearings on DATE , DATE , DATE and DATE and DATE .

On DATE the ORG issued a decision dismissing the first applicant 's claim for additional compensation . On DATE the first applicant appealed .

On DATE ORG ( ORG pravosuđa ) quashed the first - instance decision and remitted the case .

In the resumed proceedings , ORG held hearings on DATE , DATE , DATE and DATE as well as holding in situ inspections on CARDINAL and DATE .

The first applicant died on CARDINAL DATE . On DATE the second applicant , who until then had only acted as her father 's representative , was declared his only heir and soon afterwards took over the proceedings .

On DATE ORG issued a decision awarding the second applicant CARDINAL,CARDINAL.CARDINAL NORP kunas ( HRK ) in compensation . The second applicant appealed to ORG .

On DATE the second applicant and the local authorities ( the Town of Varaždin ) reached an out - of - court settlement whereby they agreed to pay her the amount of HRK CARDINAL,CARDINAL.CARDINAL in compensation for the property expropriated from her father whereas she waived any further claims against them in respect of compensation for the expropriated property and agreed to withdraw her claim and appeal in the above administrative proceedings .

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

“ ( CARDINAL ) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the individual 's rights and obligations or a criminal charge against him or her within a reasonable time , or if it is satisfied that the contested act grossly violates constitutional rights and it is completely clear that the complainant may risk serious and irreparable consequences if the constitutional court proceedings are not instituted .

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

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

The relevant provisions of LAW ( Zakon o općem upravnom postupku , ORG no . CARDINAL of CARDINAL DATE ) provide as follows :

Section CARDINAL ( CARDINAL ) provides that in simple matters , where there is no need to undertake separate examination proceedings , an administrative authority shall give a decision and serve it on a party within DATE following the submission of an application . In all other , more complex cases , the authority shall give a decision and serve it on a party within DATE .

Section CARDINAL ( CARDINAL ) provides that a party whose application has not been decided and served within the time - limits set out in paragraph ( CARDINAL ) may lodge an appeal ( appeal for failure to respond , žalba zbog šutnje administracije ) as if his or her application had been dismissed .

Section CARDINAL ( CARDINAL ) provides that the decision on the appeal shall be given and served on a party as soon as possible but at the latest within DATE following the submission of the appeal .

Section CARDINAL ( CARDINAL ) provides that the second - instance administrative authority deciding on the appeal for failure to respond shall request the first - instance authority to give reasons for its omission . If it finds that the failure to respond was attributable to the party or the reasons for such omission were otherwise justified , the second - instance authority shall order the first - instance authority to give a decision within DATE . If it finds that the omission was not justified , it shall request the case file .

Section CARDINAL ( CARDINAL ) provides that if the case file contains sufficient information , the second - instance administrative authority shall decide the case . Otherwise , it shall first hear the case and take evidence , and then give a decision . Exceptionally , if it considers that such a procedure would save time and costs , it shall order the first - instance authority to hear the case and take evidence within a specified time - limit , whereupon it shall decide the case itself . Such a decision shall be final .

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

Section CARDINAL ( CARDINAL ) provides that if the appellate administrative authority fails to give a decision on a party 's appeal against a first - instance decision within DATE , and fails to do so upon a repeated request within a further period of DATE , the party may bring an action in ORG ( action for failure to respond , tužba zbog šutnje administracije ) , as if his or her appeal had been dismissed .

Section CARDINAL ( CARDINAL ) provides that when the first - instance administrative authority fails to give a decision against which no appeal lies , the party may directly bring an action in ORG .

Section CARDINAL ( CARDINAL ) provides that , in matters where the right of appeal exists , if a first - instance administrative authority fails to give a decision on a party 's application within DATE , the party may submit his or her application to the appellate administrative authority . Against the latter authority 's decision the party may bring an action in ORG , and if the authority fails to give a decision , the party may bring an administrative action under the conditions set out in paragraph CARDINAL .

Section CARDINAL ( CARDINAL ) provides that when ORG , following the action for failure to respond , finds for the plaintiff , it shall either instruct the respondent administrative authority as to how to decide the case on points of law , or shall itself rule on the application ( acting as a court of full jurisdiction under paragraph CARDINAL of section CARDINAL ) .

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

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


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

Since DATE the applicant lived as a tenant in a ORG - owned semidetached house in GPE in GPE ( ” GPE ” ) . The house ’s former owner had left the GPE in DATE and the house was subsequently seized and transferred into public property in DATE . On DATE the GPE ’s parliament ( ORG ) passed a law that allowed the purchase of ORG - owned buildings . On DATE the applicant acquired the house for the sum of GPE Marks CARDINAL . He was entered as the owner into the land register ( Grundbuch ) on CARDINAL DATE . On CARDINAL DATE the former owner requested the house ’s restitution under ORG ( PERSON über die PERSON hereinafter called LAW ) .

On DATE ORG ( Amt zur Regelung Offener Vermögensfragen ) ordered the real estate ’s restitution according to LAW ( see “ Relevant domestic law and practice ” below ) . It stated that the house had been acquired after the key date ( PERSON ) of DATE and should not have been authorised under PERSON .

In return for the restitution the Land of GPE was obliged to reimburse the applicant the purchase price of GPE Marks CARDINAL , converted into DEM CARDINAL,CARDINAL ( ORG CARDINAL,CARDINAL ) . On DATE ORG for ORG ( PERSON Vermögensfragen ) rejected the applicant ’s objection . On DATE ORG confirmed those decisions , refusing the applicant leave to appeal on points of law .

Section CARDINAL § CARDINAL of LAW was amended by the second LAW ( Zweites Vermögensrechtsänderungsgesetz ) of DATE . It introduced exceptions to the key date regulation , thus allowing the new owners in certain cases to keep their property even if they had acquired it after DATE ( see “ Relevant domestic law and practice ” below ) .

The applicant then lodged a complaint against the refusal of leave to appeal on points of law with ORG . He held the opinion that the old version of section CARDINAL § CARDINAL infringed his right of property , as it did not contain any exceptions to the key date and thus led to expropriation . Moreover , he submitted that the key date regulation was discriminatory within the meaning of LAW . Therefore , he demanded that the new version of section CARDINAL § CARDINAL of LAW be applied to his case , in particular since the court proceedings were still pending .

On DATE ORG granted the applicant leave to appeal on points of law . On DATE it rejected the applicant ’s appeal on points of law . Having recourse to LAW travaux préparatoires , it interpreted the second LAW as applying only to proceedings which had not yet been terminated by final administrative decision ( PERSON ) . It stated that this interpretation alone guaranteed the speedy handling of cases of outstanding property issues as intended by the legislator . It furthermore pointed out that the latter had opted for a compromise between the interests of the former and new owners by choosing the final administrative decision instead of the final court decision as a criterion .

The court therefore applied the old version of section CARDINAL § CARDINAL and found that it did not violate the applicant ’s right of property . It held that the restitution of the real estate had not been an expropriation within the meaning of LAW of LAW , because all it did was to balance the competing private interests of the former and the new owners . Therefore , the impugned provision of LAW was a determination of the subject matter of the right to property and its limitations within the meaning of LAW , sentence CARDINAL , of LAW ( Inhalts- PERSON ) . The court recalled that LAW aimed at creating a socially acceptable balance between the interests of the former owners who had been expropriated contrary to the rule of law , on the one hand , and the new owners which had acquired ownership rights in good faith , on the other hand . The court pointed out that LAW in fact favoured those new owners by excluding restitution , but only if they had acquired the property rights before DATE . On that date PERSON , President of ORG ( PERSON ) had resigned . The court stressed that the legislator had decided that in the light of those political events the purchaser of real estate could have no longer had a legitimate expectation that the acquired property rights would remain guaranteed or unaffected . The court held that for those reasons the key date regulation of LAW CARDINAL § CARDINAL complied with the requirements of LAW , particularly in the light of the legislature ’s wide margin of appreciation . Lastly , the court stated that this regulation did not violate the prohibition of discrimination under LAW .

The applicant then lodged a constitutional complaint on DATE .

On DATE ORG held in a pilot judgment that the key date regulation set in section CARDINAL § CARDINAL of LAW did not violate Articles CARDINAL and CARDINAL of LAW ( see “ Relevant domestic law and practice ” below ) .

On DATE ORG refused to admit the applicant ’s complaint . It confirmed the reasoning of ORG , holding that in the light of the aforementioned pilot judgment of DATE , restitution based on the key date regulation did not violate Articles CARDINAL and CARDINAL of LAW . Furthermore , the court did not find it arbitrary that ORG had applied the old version of section CARDINAL § CARDINAL of LAW .

On DATE the Land of Berlin made it known that ORG had ordered that compensation for cases such as the present one should be provided by ORG ( Entschädigungsfonds ) which , however , had not yet been established at that time .

On DATE the applicant lodged his application with the ORG .

On DATE the Land of GPE reimbursed the purchase price amounting to DEM CARDINAL,CARDINAL ( ORG CARDINAL,CARDINAL ) . The applicant then brought an action against ORG for the payment of interest on arrears .

On DATE ORG rejected the applicant ’s claim , refusing him leave to appeal on points of law . On DATE ORG rejected the applicant ’s complaint against the refusal of leave to appeal on points of law .

The applicant did not lodge a constitutional complaint against that decision with ORG .

Article CARDINAL

“ ( CARDINAL ) All persons shall be equal before the law .

Article CARDINAL

“ ( CARDINAL ) Property and the right of inheritance shall be guaranteed . Their subject matter and limits shall be defined by the laws .

( CARDINAL ) Property entails obligations . Its use shall also serve the public good .

( CARDINAL ) Expropriation shall only be permissible in the public interest . It may only be ordered by or pursuant to a law that determines the nature and extent of compensation . Such compensation shall be determined by establishing an equitable balance between the public interest and the interests of those affected . In case of dispute respecting the amount of compensation , recourse may be had to the ordinary courts . ”

“ ORG is furthermore excluded if individuals , religious communities ( ORG ) or foundations for public utility ( gemeinnützige ORG ) acquired in good faith ownership or rights of user in rem over property assets . This does not apply to plots of land and buildings if the legal transaction which resulted in the acquisition took place after DATE and should not have been authorised pursuant to section QUANTITY of the Regulation of the Registration of Claims for Property Assests ( GPE ) . “

“ ORG is furthermore excluded if individuals , religious communities or foundations for public utility acquired in good faith ownership or rights of user in rem over property assets . This does not apply to plots of land and buildings if the legal transaction , which resulted in the acquisition , took place after DATE without the consent of the former owner , unless

an application for the acquisition was made in writing or was established on record ( aktenkundig angebahnt ) before DATE

the acquisition took place pursuant to LAW

the acquirer made considerable investments that increased the property ’s value or maintained its substance . ”

This amendment was introduced in the light of the fact that many of the new owners had already applied for the acquisition of real estate before DATE , but had not been able to complete the legal transaction , because the GPE authorities were unable to process those applications in time .

In its judgment ORG found that the key date regulation in section CARDINAL § CARDINAL of LAW and the restitution of property thereunder did not violate Articles CARDINAL and CARDINAL of LAW . It recalled that the legislator had had to balance the interests of the former owners requesting restitution and the interests of the new owners requesting protection of their acquired rights . It stressed that the legislator had had a wide margin of appreciation when determining that balance . While LAW actually favoured the new owners who had acquired the property in good faith , it had been justified to introduce a key date in order to distinguish between those who had exercised their property rights already for a certain time and those who had done so for only a short period . ORG found that the resignation of PERSON as the President of ORG on DATE had been an adequate point in time to make that distinction .

The court also noted that the GPE had already made clear in section CARDINAL of the Regulation of the Registration of Claims for Property Assets of DATE that the authorisation procedure had to be renewed ( wiederaufgreifen ) in cases of acquisitions after CARDINAL DATE . Hence the new owners in those cases could not have reasonably expected to remain proprietors and their legitimate expectation of remaining proprietors ( GPE ) did not deserve protection .

Section CARDINAL § CARDINAL of the Regulation of the Registration of Claims for Property Assets of DATE held that that the authorisation for the purchase of real estate should be denied if the legal transaction concerned real estate that had been put , inter alia , under public administration and if the former owner did not consent to the purchase .

Section CARDINAL § CARDINAL stated that pending procedures for the authorisation of purchase of real estate had to be stayed until it was established whether they concerned cases of outstanding property issues . Cases of outstanding property issues were defined , inter alia , as those cases in which real estate had been transferred into public property after it had been put under public administration by an escrow .

The same applied to cases in which former owners had lodged claims , inter alia , for restitution . The authorisation could however be granted if the former owner consented to the purchase or if the former owner did not apply for restitution until DATE .

If the authorisation had already been granted , section CARDINAL § CARDINAL provided the following : At the former owner ’s request , the authorisation procedure had to be renewed if the acquisition had taken place after DATE and if it should not have been authorised pursuant to section QUANTITY .


CASE OF PRESIDENTIAL PARTY OF MORDOVIA v. RUSSIA

Violation of Art. 11;Non-pecuniary damage - financial award

NORP The applicant party was based in GPE , a constituency of GPE .

On DATE the applicant party was registered with ORG of GPE as a “ Mordovian ORG - the Presidential Party of GPE ” ( NORP общественно-политическая организация республики ORG PERSON GPE ) .

On DATE ORG adopted a new ORG общественных объединениях DATE “ LAW ” ) which came into force on DATE . Article CARDINAL of ORG required public associations registered before DATE to ensure that their articles of association complied with LAW and to renew their registration by DATE .

On DATE the applicant party applied to ORG of GPE to renew its registration . It presented its ORG which contained the following provisions :

“ CARDINAL . The party ’s objectives

The party ’s aims are :

- assisting in the formation of a free democratic society in GPE and GPE ;

- strengthening GPE ’s unity ;

- fighting against the separatism of GPE ;

- enhancing the separation of the executive , legislative and judicial powers ;

- creating a strong executive power headed by the directly elected President of GPE , integrated in the executive power of GPE ;

- building a highly developed market economy ;

- striving to achieve the individual ’s social protection .

In order to meet these objectives the party :

CARDINAL.CARDINAL.CARDINAL . participates in presidential , parliamentary and local elections in GPE by selecting and nominating candidates and assisting in their electoral campaigns .

ORG . carries out programmes and initiatives directed at professional training , provides assistance to members of parliament and party members in the fields of economy , law , administration , mass media and the arts to support the preparation and running of electoral campaigns .

CARDINAL.CARDINAL.CARDINAL . NORP develops a scheme to select a list of candidates and to establish the liability to the party of its members of parliament .

NORP holds the preliminary election of candidates for elections .

NORP supports the party groups in parliament .

ORG . assists individuals , public and private organisations , research and educational bodies in their activities concurring with the party ’s aims . ”

On DATE the Minister of Justice of GPE refused to renew the applicant party ’s registration with reference to LAW and to LAW on Becoming an ORG ( ORG PERSON О приобретении общественным объединением регионального ( республиканского ) статуса ORG ) . The decision stated that the applicant party had failed to create branches in CARDINAL of the districts and cities of GPE to qualify for the title “ All - NORP ” . Furthermore , it stated that the applicant party ’s ORG did not comply with the requirement to include among its objectives participation in the political life of society and in elections .

On DATE the applicant party filed its objections with ORG of GPE . It maintained that the requirement to establish branches contained in LAW of LAW applied exclusively to international , all - NORP or inter - regional public associations . It also contended that its ORG provided for the applicant party ’s participation in the political life of society and in elections .

On DATE the applicant party filed a new application for the renewal of its registration with ORG of GPE . The newly submitted ORG contained the following statements :

“ CARDINAL . The main objective of the party is participation in the political life of society through influencing and generating the ORG political will , participation in elections to the ORG authorities and local government by nominating candidates and organising their electoral campaign , and taking part in the setting - up and activities of the said bodies . ”

On DATE the Deputy Minister of Justice of GPE informed the applicant that it had missed the deadline for renewal of its registration .

In DATE ORG of GPE applied to the GPE ORG of GPE for the dissolution of the applicant party on the ground that it had failed to reregister . The applicant party filed a counter - claim in which it challenged the refusal to renew its registration and sought an order requiring ORG to register it .

On DATE the GPE ORG of GPE dismissed the request for dissolution . It held that it was sufficiently clear from the applicant party ’s ORG that it intended to engage in activities amounting to “ participation in the political life of society ” in accordance with LAW . The court also found that the requirement to establish branches applied only to all - NORP , inter - regional and international public associations . It declared the refusal to renew the registration of the applicant party unlawful and ordered ORG of GPE to renew the registration .

NORP The Minister of Justice of GPE appealed .

On DATE ORG acting as an appeal instance quashed the judgment of DATE and substituted its own decision . It found that the applicant party had failed to declare expressly its “ participation in the political life of society ” as a statutory objective . It rejected the finding made by the first - instance court that the activities listed in Article CARDINAL.CARDINAL.CARDINAL of the applicant party ’s ORG could qualify as “ participation in the political life of society ” for the purposes of ORG . The court found the refusal to renew the registration of the applicant party lawful and , in accordance with LAW , ordered its dissolution . This decision became final on DATE .

On DATE , after communication of the case to the respondent Government by the ORG , the acting President of ORG brought on his own motion an application for supervisory review of the decision of DATE .

On DATE the ORG of ORG granted the application by quashing the decision of DATE and upholding the judgment of the GPE ORG of GPE dated DATE . The latter judgment declaring the refusal to renew the registration unlawful and requiring ORG of GPE to register ORG of GPE entered into force .

On DATE ORG of GPE in respect of GPE sought a court order in respect of the enforcement of the judgment of CARDINAL DATE . It claimed that , following legislative changes , it could not register ORG of GPE pursuant to the judgment . Firstly , on CARDINAL DATE the competence to register legal persons had been transferred to the tax authorities . Secondly , the PERSON on Political Parties of DATE changed the requirements for establishing political parties , and the application for registration of the applicant party had not taken account of these requirements . In particular , under the new law no regional political parties could be created and existing regional parties were deprived of their current status .

On DATE the GPE ORG of GPE examined the request and terminated the execution of the judgment of CARDINAL DATE . The court accepted that both reasons prevented the party ’s registration pursuant to the judgment . It also took into account that the applicant ’s president , PERSON , had consented to the termination of the enforcement proceedings in view of the legislative changes .

The Federal Law on Public Associations , No . CARDINAL-FZ of CARDINAL DATE , provided in so far as relevant as follows :

“ The articles of public associations registered before the entry into force of this Federal Law shall be amended in compliance with the said Federal Law [ ... ] .

State re - registration of public associations registered before the entry into force of this Federal Law shall be carried out before DATE . ”

“ A political public association is a public association whose articles of association must provide for participation in the political life of society through influencing and generating the ORG political will , participation in elections to the ORG bodies and local government by nominating candidates and organising their electoral campaign , and taking part in the setting - up and activities of the said bodies . ”

The Federal Law on Political Parties , No . CARDINAL of DATE contains the following provision :

“ ... all interregional , regional and local political associations shall cease to enjoy the status of a political association and shall continue to function as interregional , regional and local public associations ... ”


Violation of Art. 11 read in the light of Art. 10;Non-pecuniary damage - award

The applicant was born in DATE and lives in GPE .

On DATE the applicant and CARDINAL other persons ( PERSON . and PERSON ) sent a notice to the head of PERSON town administration of their intention to stage a picket in front of ORG . The picket was to take place CARDINAL between TIME The declared purpose of the picket was “ to attract public attention to violations of the human right of access to a court ” .

On DATE the head of ORG of the NORP town administration acknowledged receipt of the notice . He noted that , should the picket cause any inconvenience , such as blocking access to the court - house or impairing its normal functioning , the administration would have to intervene .

On DATE the head of the ORG public security police ordered that the police should maintain public order and traffic safety during the picket .

On DATE the applicant and others held the picket . They distributed press clippings and leaflets about Mr GPE , the President of ORG , who had allegedly been involved in corruption scandals , and collected signatures for his dismissal .

On DATE Mr PERSON , the first deputy president of ORG , sent the following letter to the head of the PERSON - Issetskiy police department of PERSON :

“ With the consent of the PERSON town administration , a group of citizens comprising PERSON . , PERSON and PERSON , held a picket in front of the building of ORG ...

The picket notice indicated that the purpose of the picket was ‘ to attract public attention to violations of the human right of access to a ORG .

As the subsequent events demonstrated , the picket organisers misled the officials of the PERSON town administration as to the real purposes of their action .

Instead of drawing public attention to the problems of judicial protection and violations of human rights , as it was indicated in the picket notice DATE if they believed that such problems existed – which would be hard to contradict because the said problems exist in reality , for DATE the picket participants distributed printed leaflets and materials of a slanderous and insulting nature which targeted the president of ORG personally .

The information contained in the extract from the ORG newspaper was DATE . It had been checked by ORG and ORG and found to be slanderous , of which the picket participants , in particular PERSON . and PERSON , were perfectly aware .

The above stated begs the conclusion that the picket organisers deliberately and maliciously changed the nature of the action and in that way misled the public whom , according to the picket notice , they merely intended to acquaint with the state of judicial protection of human rights .

They have committed thereby an administrative offence by violating section CARDINAL of the decree of the Presidium of ORG of DATE , as amended by the Presidential decree of CARDINAL DATE , and , pursuant to section CARDINAL of that decree , they are administratively liable under LAW ...

Accordingly , I ask you to institute administrative proceedings against PERSON . , Mr GPE and Ms M. in accordance with LAW ( CARDINAL ) of the said LAW , prepare a report on an administrative offence and decide on the issue of their legal responsibility for that breach of law . You are requested to inform me of the decision taken . ”

On DATE an official of the NORP - Issetskiy police department of PERSON compiled a report on administrative offences committed by the applicant under LAW CARDINAL of the Code on Administrative Offences . According to the report , the applicant had given notice of the picket too late , he had distributed leaflets of a slanderous and insulting nature against the president of the regional court and he had also obstructed the passage of citizens into the court - house . Court bailiffs PERSON and PERSON were listed as eyewitnesses .

On DATE the head of the NORP - Issetskiy police department forwarded the report and supplementary materials to the LOC of PERSON . The matter was assigned to the justice of the peace of ORG of the Verkh - Issetskiy district of GPE .

On CARDINAL DATE the applicant challenged the judicial formation and requested that the matter be examined in a neighbouring region . He claimed that objective examination of the matter in PERSON was impossible because it had been initiated at the instigation of the high - ranking officials of the regional court . The justice dismissed his challenge , holding that under LAW there were no legal grounds to change the venue .

On DATE the justice issued a ruling on an administrative offence ( постановление по делу об административном правонарушении ) in which she found the applicant guilty on CARDINAL counts .

Firstly , the justice held that the applicant had breached the established procedure for organising a picket . He had sent the picket notice DATE before the picket date , whereas both the DATE ORG decree and the local ORG regulation on public assemblies established a DATE notification period .

Secondly , the justice found the applicant to have breached public order during the picket . She relied on the following evidence :

“ The applicant ’s guilt ... is confirmed by the report on an administrative offence dated DATE ; the statements by the witnesses PERSON and PERSON who testified in court that they worked as court bailiffs in ORG . At TIME on DATE they had gone onto the porch of ORG and seen some people with banners – among them Mr Kuznetsov holding the banner ‘ ORG – resign’ – who were standing on the porch right in front of the entrance on the top floor , blocking the passage and distributing leaflets . When they had asked them to show their identity documents and go down the stairs , they had refused but they had gone down after a police officer had approached them . Judges coming to work had told them that the picket participants had blocked access to the court . [ List of evidence showing the applicant ’s guilt continues : ] the report by the court bailiff PERSON of DATE ; the report by the police officer from the PERSON - Issetskiy police station Mr PERSON which indicated that CARDINAL DATE he had been responsible for public order during the picket in front of ORG . The picket had been organised by Mr GPE , PERSON . and PERSON , who at TIME on DATE of the picket were standing on the staircase at the entrance to ORG and thus obstructing access to the building . Following his intervention and that by the court bailiffs , they had gone down to the pavement in front of the court - house and had not subsequently interfered with the normal functioning of ORG ...

The judge does not accept the arguments by Mr GPE ’s representative to the effect that Mr GPE did not block access to ORG , because these arguments contradict the evidence that has already been examined in court and because they can not be confirmed by the witnesses [ for the defence ] who were present at the picket from TIME , because by that time the picket participants had already descended the staircase on orders of the police officer and were no longer blocking access ...

The photographs [ produced by the defence and ] examined in court can not prove that Mr Kuznetsov did not block access to the court - house , because they depict solely the moment when they were taken rather than the entire time during which the picket had been held ; moreover , the court does not know when the photographs were taken . ”

Thirdly , the judge found that the picket had been conducted at variance with the aims listed in the notice :

“ According to the notice dated DATE , the initiative group of citizens comprising PERSON . , PERSON and PERSON held a protest action against violations of ORG right to judicial protection . As [ the applicant ’s representative ] explained in court , the picket aimed at attracting public attention to the problems of judicial protection , such as refusals to accept a claim or unfair judgments . The witness PERSON stated that he had brought and distributed a newspaper describing certain instances in which ORG rights to judicial protection had been breached . At the same time , the picket participants distributed extracts from the ORG newspaper containing ORG article ‘ ORG and his LOC which in its contents did not correspond to the aims of the picket . The distribution of those extracts was not contested by the applicant ’s representative in court and also confirmed by witnesses . ”

The judge declared the applicant guilty under LAW and CARDINAL of LAW and fined him MONEY ( RUB , MONEY ( ORG ) ) .

On DATE the LOC of PERSON , on an appeal by the applicant , upheld the ruling of the justice of the peace , endorsing the reasons that she had given . That judgment was final as no further ordinary appeal lay against it .

The LAW guarantees the right to freedom of peaceful assembly and the right to hold meetings , demonstrations , marches and pickets ( Article CARDINAL ) .

The Decree of the Presidium of ORG no . CARDINAL of DATE ( in force at the material time pursuant to Presidential Decree no . CARDINAL of CARDINAL DATE ) provided that organisers of an assembly were to give written notice to the municipal authorities DATE before the planned assembly ( section CARDINAL ) . The authority was to give its response DATE before the assembly ( section CARDINAL ) . Assemblies were to be conducted in accordance with the aims listed in the notice and with respect for NORP laws and public order ( section CARDINAL ) . Individuals who breached the established procedure for organising and holding assemblies incurred liability under the laws of the GPE and GPE ( section CARDINAL) .

Article CARDINAL § CARDINAL of the Code on Administrative Offences provides that a breach of the established procedure for organising a demonstration , meeting , procession or picket shall be punishable by a fine of CARDINAL to CARDINAL times the minimum DATE wage ( that is , RUB CARDINAL at the material time ) . Paragraph CARDINAL of that Article stipulates that a breach of the established procedure for holding a demonstration , meeting or picket shall be punishable by a fine of CARDINAL to CARDINAL times the minimum wage for organisers , or CARDINAL times the minimum wage for participants .


CASE OF NERVA AND OTHERS v. THE UNITED KINGDOM

No violation of P1-1;No violation of Art. 14+P1-1

The applicants were employed as waiters at the material time . When the applicants received a tip in cash directly from a customer , the money was placed in a box called a “ tronc ” and distributed proportionately among the waiters at DATE by the “ tronc master ” .

Initially , tips left by customers which were paid to the restaurant by way of an addition to a sum paid by cheque or credit card were dealt with by removing from the cash register a sum equivalent to the tip paid by cheque or credit card and placing it in the tronc , out of which it would be distributed at DATE in the same way as cash tips .

In DATE , following an inspection from the tax authorities , the applicants’ employer was required to treat tips left by cheque or credit card within the “ Pay - As - You - Earn ” ( “ PAYE ” ) system . Under the ORG system an employer had to ensure that employees’ income tax and national insurance contributions were deducted from the sums paid , and that ORG national insurance contributions were paid on those sums . In the applicants’ view , the tax authorities in DATE were simply insisting that as cheque and credit card tips passed through the hands of the employer the latter was responsible for distribution and should be responsible for ensuring that tax and national insurance were properly deducted through ORG .

Rather than distributing cash sums equivalent to those left by customers on cheque and credit card vouchers , the ORG employer included “ additional pay ” in their DATE pay slip . It would appear that the method of distribution was the same as the method hitherto applied to tronc money .

NORP Although initially opposed , this new system was eventually agreed to by the staff . The first applicant was already a staff member at the time of the introduction of the system . The remaining applicants agreed to the system when they took up employment . The applicants submitted that the staff agreement to the new system was not intended to alter the fact that the gratuities were to be paid in full to employees .

The cheque and credit card gratuities were the subject of deductions by the employer in respect of tax and national insurance contributions . The employer bore the charges of the credit card companies , varying at the time from PERCENT on the amount of the gratuities . When a credit card voucher was improperly completed and rejected by a credit card company , the employer wrote off the amount and , it would appear , did not seek to recover any sums distributed to waiters in respect of any gratuity included on the voucher ; it does not appear either that the employer sought to recover from the waiters any sums which it did not receive as a result of dishonoured cheques . The applicants highlighted their view that this was not a new practice , but that it applied before DATE .

At the relevant time there was a legal requirement that various categories of workers , including waiting staff like the applicants , be paid a minimum sum as remuneration . This requirement was embodied first in LAW and then , as from DATE , in LAW DATE .

The applicants sued their employer for breach of contract and challenged the employer ’s right to count the tips included in cheque or credit card payments as part of their statutory minimum remuneration . The applicants’ claim covered DATE and therefore straddled both of the above - mentioned Acts . In the ORG ’s view , the issue between the parties was whether the “ additional pay ” constituted money paid to them by their employer . If the ORG claim was upheld , the consequence would have been that their employer had been paying them remuneration less that the statutory minimum over DATE , in breach of contract , entitling them to substantial damages . The applicants maintained that the dispute centred on whether the “ additional pay ” constituted money paid to the applicants by their employer or , they emphasised , by their employer in respect of time worked .

On DATE a ORG judge , Mr Justice PERSON , held on a preliminary point that tips included in cheque and credit card transactions did count against the minimum remuneration requirement . Mr Justice PERSON rejected the applicants’ submission that the tips paid in this manner were held in trust for them by the employer . In his judgment , the employer obtained the legal title to a tip paid by credit card or cheque , with the result that it became the employer ’s property .

The applicants appealed to ORG . By the time of the hearing before ORG , the applicants had accepted that property in the cheque and credit card tips passed to their employer and no longer relied on the argument that they were to be considered beneficiaries of money held on trust for them by the employer .

In its judgment of CARDINAL DATE , ORG dismissed the ORG appeal .

Lord Justice PERSON observed that it was not disputed that the relevant legislation ( the Wages Councils Act DATE and LAW ) embodied the rule that what was paid by the employer and not by any other person counted as remuneration for the purpose of that legislation . For that reason , tips paid in cash to waiters or to the tronc did not count as remuneration . However , he considered that the same reasoning could not apply to tips which were built into payments made by cheque or credit card to their employer since the amounts became the latter ’s property . The employer thereafter paid an equivalent amount to the applicants . In his view , tips paid in this manner should count against the minimum remuneration requirement . Lord Justice PERSON rejected the attempts of the applicants’ counsel to interpret the applicable legislation differently . He further rejected counsel ’s argument that the applicants had a right to the cheque and credit card tips as money had and received for their use . In Lord ORG opinion , it was decisive that the employer was paying the tips with its own money even if they had been paid by the customers to the employer in the belief that the latter would pass the tips on to the waiters and on the understanding that it would do so .

As to the issue of the ORG intention when adding the tip to the cheque or credit card payment , Lord Justice PERSON considered :

“ This is relevant ... in deciding whether the money became the property of the employers or the waiters . But it is clear and ( in this court ) uncontroverted in this case that it became the property of the employers . Beyond that , as it seems to me , the intention of the customers has no part to play . ... ”

Mr Justice PERSON concurred . As to the applicants’ reliance on customer intention , Mr Justice PERSON stated that the intention of the different customers could only be the subject of speculation .

Lord Justice PERSON dissented . As to tips paid by cheque or credit card , Lord Justice PERSON accepted that the amount was paid to the employer and therefore it could not be said that the tip so paid never became the employer ’s property . However , in his opinion the intention of the customer was the same when paying a tip by credit card or cheque as when paying by cash and , in either case , the customer had no intention of giving anything to the employer . Lord Justice PERSON stated :

“ It was paid to the employer by the customer as a gratuity with the intention that it should be passed to the staff in the same way as cash payments would be and was accepted upon that basis as was apparent from the way that it was operated . The money added to the slip was taken out of the till and added to the tronc . That being so , I do not believe that tips paid by way of cheque or credit card should be considered ‘ remuneration’ when cash tips would not be . ”

Lord Justice PERSON further observed that there was no difference in principle between tips paid in cash and tips paid by cheque or credit card . In his opinion , the only difference was that in the latter cases the employer acted as agent for the customer and , when doing so , had to carry out its duties under the relevant tax legislation to ensure that tax was levied on the tips . However , the fact that tax on cheque and credit card tips was deducted under the PAYE system , instead of being paid by the waiters , did not affect the relationship between the customer and the employee and the intention of the customer that his tip would find its way into the hands of the employee rather than enriching the employer ’s bank account .

On DATE the applicants applied for leave to appeal to ORG . On DATE the applicants were informed that ORG had provisionally decided that leave to appeal should be given and that the ORG employer was invited to submit objections to the ORG petition before DATE . On DATE ORG referred the matter for an oral hearing before ORG .

On DATE the hearing was held . The ORG counsel was given the opportunity to speak to the petition for leave and to address the employer ’s written objections . The hearing lasted TIME . On DATE ORG refused leave to appeal without giving reasons .

Section CARDINAL of the Wages Councils Act DATE provided for the establishment of wages councils by order of the Secretary of ORG in respect of those workers described in the order and their employers . Under section CARDINAL , wages councils were empowered , inter alia , to fix the rate of remuneration for any workers in relation to which they operated . Under section CARDINAL , contracts of employment providing for payment of less than the minimum remuneration prescribed by a wages council would have effect as if the contractual rate were superseded by the statutory minimum rate . A wages council was established for workers in licensed residential establishments and licensed restaurants . Minimum remuneration for those workers was laid down in the Wages ( Licensed Residential Establishment and Licensed Restaurant ) Order CARDINAL . Paragraph CARDINAL of the DATE Order specified the minimum rate to be paid for TIME work as well as the rates for overtime , TIME work , etc . Paragraph CARDINAL of the DATE Order provided that if in DATE in which a worker performed some work for his employer the total amount of gratuities from customers received by the worker was less that QUANTITY ( GBP ) , the employer had to pay the worker such sum as the amount of gratuities fell short of GBP MONEY . There had to be a written agreement between the worker and the employer to this effect . Where such an agreement existed , the worker had to be paid the appropriate amount reduced by MONEY per hour for TIME worked by him in DATE .

Section CARDINAL of the Wages Councils Act CARDINAL defined remuneration as the amount obtained or to be obtained in cash by the worker from his employer after allowing for the worker ’s necessary expenditure , if any , in connection with his employment .

The definition of remuneration under LAW also took as its starting - point the total amount of any money payments made by the employer to the worker . The applicants draw attention to the terms of section CARDINAL(I)(a ) , which provided :

“ For the purposes of determining , for the purposes of this Part , the amount of remuneration paid to a time worker by an employer in respect of time worked by the employee in DATE there shall be added together -

( a ) the total amount of any money payments made by the employer to the worker , on or before the relevant pay day , by way of remuneration in respect of time worked by him in DATE ... ”

The applicants stressed in the above connection that they were regarded as time workers at the material time .

The Wages Act DATE made provision for the continued existence of wages councils , although with reduced powers . Under LAW , a worker could claim as additional remuneration the difference between a statutory minimum set by a wages council and the amount he was actually paid under contract .

Under LAW ( now re - enacted in section CARDINAL of LAW DATE ) , employers were prevented from making deductions from the wages properly payable to their employees , save in certain defined circumstances and , in particular , where the employee had given prior consent to the deduction in writing .

In GPE v. Aceground Ltd t / a PERSON ( [ DATE ] ORG CARDINAL ) , ORG held that a restaurant owner who kept for himself a proportion of the sums paid by customers as a service charge had contravened section CARDINAL of the Wages Act DATE . Whilst it was at the restaurant owner ’s discretion how the tronc was allocated , this did not extend to permitting him to allocate some of the money to himself .


David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicants , Mr PERSON , ORG , Mr PERSON and Mr PERSON , are citizens of GPE and GPE who were born in DATE , DATE and DATE respectively and live in PERSON . They were represented before the ORG by Mr PERSON , a lawyer practising in PERSON . ORG GPE ( “ the Government ” ) were represented by their Agent , ORG .

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

Prior to the dissolution of the former ORG ( “ the SFRY ” ) the applicants deposited foreign currency in their bank accounts at the then ORG . In GPE , as well as in other successor GPE of the former SFRY , such savings are commonly referred to as “ old ” foreign - currency savings ( for the relevant background information see GPE v. GPE DATE . ) , no . CARDINAL , ORG CARDINAL- ... ) .

Following several unsuccessful attempts to withdraw their funds , the applicants initiated court proceedings seeking the recovery of their entire “ old ” foreign - currency savings and accrued interest .

By a decision of ORG of DATE , the PERSON ( the legal successor of ORG ) was ordered to pay the applicants MONEY , MONEY and MONEY together with default interest on the above amounts at the statutory rate from DATE . The judgment entered into force on DATE . On DATE the ORG issued a writ of execution ( rješenje o izvršenju ) . The execution proceedings were stayed DATE and DATE .

On DATE the domestic ORG found a violation of LAW No . CARDINAL to the LAW arising from a failure to enforce the judgment of DATE and ordered PERSON to ensure full enforcement thereof without further delay . ORG further considered that any pecuniary damage would be compensated through payment of default interest as provided by the judgment in issue . It therefore rejected the ORG claim for compensation for pecuniary damage . The applicants did not claim compensation for non - pecuniary damage .

On DATE the Republika Srpska took over the judgment debt , pursuant to section CARDINAL of LAW DATE .

On DATE the Republika Srpska paid the principal debt in the amount of CARDINAL convertible marks ( BAM ) . On DATE the applicants were paid default interest in the amount of BAM CARDINAL,CARDINAL.CARDINAL .

LAW CARDINAL ( Zakon o visini stope zatezne kamate ; published in ORG of ORG ( “ ORG RS ” ) no . CARDINAL of CARDINAL DATE ; amendments published in OG RS no . CARDINAL of CARDINAL DATE ) entered into force on DATE . It sets the rate of default interest to be paid in PERSON on outstanding amounts expressed in any currency . According to section CARDINAL of this Act , default interest is calculated on the basis of the official retail price growth rate ( stopa rasta cijena na malo ) plus another PERCENT DATE ( fiksna stopa ) . Inflation in GPE , as measured by the official retail price growth rate , was relatively slow in DATE . The relevant figures were as follows : PERCENT in DATE , PERCENT in DATE , PERCENT in DATE and PERCENT in DATE ( see the Annual Report of ORG , p. CARDINAL ) .

As to the period before the entry into force of LAW DATE , the rate of default interest to be paid in the Republika Srpska on outstanding amounts expressed in a foreign currency is the rate applicable to overnight foreign - currency deposits ( see , for example , judgment of ORG of the Republika Srpska no . Rev-CARDINAL/CARDINAL of DATE ) . According to an official report submitted by the respondent Government , at the request of the ORG , in another case ( PERSON v. GPE , no . CARDINAL ) , the relevant figures for DATE ( when the default period started in the present case ) to DATE ( when LAW DATE entered into force ) were as follows : PERCENT in DATE , PERCENT in DATE , PERCENT in DATE , PERCENT in DATE , PERCENT in DATE , PERCENT in DATE , PERCENT in DATE , PERCENT in DATE , PERCENT in DATE and PERCENT in DATE ) .

For other relevant law and practice see the admissibility decision in ORG , cited above ; the judgment in GPE v. GPE , no . DATE ... ; and ORG and Others v. GPE , nos . CARDINAL , CARDINAL and CARDINAL , DATE .