CASE OF OAO PLODOVAYA KOMPANIYA v. RUSSIA

No violation of P1-1;No violation of Art. 6-1;No separate issue under Art. 13 and 14

In DATE ORG of the GPE created ORG “ LOC ” ( ORG экспортно-импортное объединение « PERSON ) . Its assets included the trademarks to a number of brands of alcohol ( such as ORG , ORG and their derivatives ) .

On DATE the agency was reorganised into ORG “ LOC ” ( GPE внешнеэкономическое объединение « PERSON ) .

On DATE the applicant company was set up in the form of a closed joint - stock company . It was called the “ ORG Soyuzplodoimport ' ” ( Внешнеэкономическое акционерное общество закрытого типа « PERSON , ORG “ PERSON ” ) , and was registered with the relevant state agency , namely ORG . According to its memorandum of association , it was set up by several founders , including ORG “ Soyuzplodoimport ” , which held CARDINAL of its CARDINAL shares . The memorandum of association provided that the applicant company was a “ successor ” to ORG “ LOC ” .

In DATE the applicant company converted into an open joint - stock company .

On DATE the general shareholders ' meeting of the applicant company adopted a new memorandum of association . The company name was changed to OAO “ PERSON ” ( ORG « PERSON ) . The new memorandum of association contained a declaration that the applicant company was the successor of ORG “ PERSON ” .

In the above period the applicant company notified the trademark registration authority that the trademarks of ORG “ Soyuzplodoimport ” had changed ownership through succession and consequently obtained trademark certificates in its own name . It subsequently used the trademarks as collateral in a number of commercial transactions with third parties .

NORP On DATE the Deputy Prosecutor General challenged the applicant company 's new memorandum of association , particularly the declaration of succession , before ORG of GPE .

On DATE ORG of GPE declared the provision on succession null and void . It held that the applicant company had had no legal grounds to claim succession to ORG “ LOC ” . The applicant company had been set up as a new company and not converted from an existing one . It held that a mere declaration by the applicant company in its founding memorandum of association was insufficient to enable it to become the successor of another company . Likewise , it found that , although the applicant company had de facto acted as a successor before the trademark registration authorities and courts of arbitration , this was irrelevant to the establishment of corporate succession .

On DATE ORG of GPE examined the applicant company 's appeal . Without entering into the merits it quashed the first - instance judgment and terminated the proceedings on the ground that the prosecutor 's office did not have standing to bring proceedings . This decision entered into force on DATE . It was not appealed against either by a cassation appeal or by a separate appeal .

On DATE ORG registered the change of name of ORG “ Soyuzplodoimport ” . Its new name was ORG “ Soyuzplodoimport ” ( NORP государственное унитарное предприятие « Внешнеэкономическое объединение PERSON ) .

On DATE the Deputy Prosecutor General submitted a request for supervisory review of the decision of DATE .

The applicant company was summoned to the hearing before the supervisory instance , but those summons were not served on it because it could not be found at its official address . The representatives of the applicant company learned about the hearing , however , submitted written comments on the merits of the case and attended the hearing .

On DATE the Presidium of ORG of GPE examined the case in supervisory review proceedings . The applicant company was represented by the company 's president , who made oral submissions before the ORG .

The ORG quashed the decision of DATE and reinstated the first - instance judgment of DATE . On the procedural point , it held that the prosecutor 's office was entitled by law to represent the ORG in proceedings before commercial courts where public or ORG interests were involved . It found that the proceedings at issue concerned ORG , and that this provided sufficient grounds for the prosecutor to intervene . As to the merits of the case , the ORG upheld the finding that the applicant company was not entitled to claim succession to ORG “ LOC ” because there had been no decision on the latter 's conversion , and the applicant company itself had been created as a new entity and not as a result of any reorganisation of an existing legal person . Accordingly , the provisions on succession made in its memorandums of association were null and void . This decision entered into force on DATE and was not subject to further appeal .

The Civil Code of GPE provides that a legal person may be reorganised or liquidated upon a decision of its founders or its management body as authorised in its constitutional documents , or by a competent court in the circumstances provided for by law ( Articles CARDINAL and CARDINAL ) . In the event of reorganisation in a form of merger , conversion or accession , the assets of the legal person that ceases to exist are transferred pursuant to an act of transfer to a newly created legal person and , in the latter case – to an existing legal person . In the event of reorganisation in a form of division or separation , the assets of the reorganised legal person are divided and transferred pursuant to a separation balance sheet ( Article CARDINAL ) . In the event of liquidation the legal person ceases to exist without succession ( Article CARDINAL ) .

The Code of Commercial Procedure ( no . CARDINAL-FZ of CARDINAL DATE , in force at the material time ) established that final judgments and decisions of all commercial courts of GPE were amenable to supervisory review initiated on an application by the President of ORG or his deputy or by ORG or his deputy ( Articles CARDINAL and CARDINAL ) . The Code did not list the grounds for lodging an application for supervisory review : it merely specified that it could be lodged “ also in connection with a request by a party to the proceedings ” ( LAW ) . The summoning of parties to the hearing before the Presidium of ORG was to be at the discretion of the ORG ( LAW ) . There was no time - limit for lodging an application for supervisory review , and , in principle , such applications could be lodged at any time after a judgment had become final .


No violation of Art. 6-1 and 6-3-c;Remainder inadmissible

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev

The applicant was born in DATE and lives in Axams .

On DATE the Innsbruck ORG ( Bezirkshauptmannschaft , ORG ) issued a provisional penal order ( ORG ) against the applicant , imposing a fine under LAW ( GPE ) for non - compliance with the obligations of registered owners to have their cars inspected on a regular basis for security reasons .

On DATE the applicant lodged an objection to this decision .

On DATE the ORG issued a penal order ( PERSON ) confirming its previous decision and imposing a fine of MONEY ( ORG ) , with QUANTITY ' imprisonment in case of default , on the applicant .

Assisted by counsel , the applicant appealed on DATE to ORG ( PERSON , ORG ) alleging that he was not responsible for the regular car inspection since the car was permanently used by another person . Furthermore he argued that the car had been parked at the same spot for DATE and was not in active use at the relevant time . He also requested that an oral hearing be held in which he and the actual user of the car could be heard as witnesses .

On DATE the ORG scheduled an oral hearing for DATE .

A summons was served on the applicant 's counsel on DATE , containing the standard text that the accused does not have to appear before the ORG personally but is free to send a representative instead .

On TIME the replacement of the applicant 's counsel informed the ORG that the applicant had been informed about the hearing DATE before and that he could not attend the hearing since he was ill , neither could the requested witness appear as she was on holiday . He requested an adjournment of the hearing , but the ORG refused .

On DATE the hearing took place in the absence of the applicant but in the presence of his counsel , who again requested that the hearing be adjourned to hear the applicant and the witness . The ORG dismissed the applicant 's appeal and only amended a citation of the ORG 's decision . It found that even though the car was used by somebody else the applicant , as the registered owner has to check that the car undergoes regular inspections . Therefore , the ORG did not consider it necessary to question the witness . As regards the request for an adjournment of the hearing , the ORG found that the applicant 's interests had been taken care of by his counsel and that his presence had therefore not been necessary , all the more so as the facts were clear and it was only questions of law which had to be decided .

On DATE the applicant lodged a complaint with ORG in which he complained , inter alia , that the ORG had convicted him in absentia .

On DATE the ORG declined to deal with the applicant 's case since it did not involve a question of fundamental rights .

At the request of the applicant ORG transmitted the case on DATE to ORG .

On DATE the applicant modified his complaint lodged with ORG .

On DATE ORG refused to deal with the applicant 's complaint under section CARDINALa of LAW since the amount of the penalty did not exceed LAW and no important legal issue was at stake


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

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

The applicant worked in GPE as a real property administrator in the C. company . In DATE he was given notice as he had allegedly appropriated payments for repairs which had not been undertaken .

Criminal proceedings were instituted against the applicant on account of professional fraud . Upon appeal , ORG ( ORG ) of the GPE of GPE - Stadt on DATE sentenced the applicant to CARDINAL GPE imprisonment . The court was composed of CARDINAL judges and assisted by court registrar PERSON

Meanwhile , in DATE the applicant brought an action before ORG against the C. company , claiming MONEY ( CHF ) , inter alia , for outstanding salary claims . In DATE the defendant company brought a counter - action against the applicant , claiming CHF CARDINAL . Proceedings were then continued before ORG ( Zivilgericht ) of the GPE of GPE - Stadt which on DATE suspended the proceedings in view of the criminal proceedings instituted against the applicant .

Proceedings were resumed in DATE . The defendant company brought a further counter - action against the applicant , now claiming CHF MONEY for damages caused by fictitious bills .

As from DATE , judge NORP , the President of ORG , acted in the applicant ’s case as the judge responsible for the preparation of cases for trial ( PERSON ) .

On DATE the applicant extended his claims to CHF CARDINAL . He also requested free legal aid .

On DATE judge NORP authorised the amendments of the action and counter - action . In order to examine the applicant ’s request for free legal aid , he obtained copies of judgments from the competent courts which had conducted the criminal proceedings and had refused the applicant free legal aid . On DATE judge NORP refused the applicant ’s request for legal aid as he had not demonstrated his indigence .

On DATE judge NORP fixed CARDINAL DATE as the time - limit for filing replies to the action and counter - action . On DATE the defendant company filed further submissions , accompanied by photocopies of certain documents . As the applicant contested their authenticity , judge NORP requested the defendant company to submit the original documents .

On DATE the applicant amended his action and requested , in addition , CHF MONEY from the defendant company . As a result , judge NORP instructed the applicant to pay advance costs of CHF CARDINAL . The applicant replied that he was unable to pay this sum whereupon judge NORP declared the amendment to the action inadmissible ( aus dem ORG gewiesen ) .

On DATE both the applicant and the defendant company filed further submissions .

On DATE judge NORP closed the exchange of statements and ordered the documents of the criminal proceedings to be included in the case - file .

On DATE judge NORP terminated his functions at ORG and became a judge at ORG of the GPE of ORG . Thereafter , judge PERSON undertook the functions in the applicant ’s case before ORG as judge responsible for the preparation of cases for trial .

On DATE a hearing took place before ORG at which both parties were present . In its judgment of CARDINAL DATE the court ordered the applicant to pay CHF MONEY to the defendant company , while formally taking note that the latter accepted the applicant ’s action to the extent of CHF MONEY . It imposed the costs of the court proceedings concerning the action , amounting to CHF CARDINAL , on the applicant , who was furthermore ordered to pay PERCENT of the costs of the counter - action , amounting altogether to CHF MONEY .

The applicant appealed against the judgment in respect of the imposition of costs , claiming that the defendant company should pay the entire costs of the counter - action , and PERCENT of the costs of his action . On DATE ORG of the GPE of ORG dismissed the appeal . It transpires from the judgment that the bench was composed of CARDINAL judges , among them judge NORP , as well as the court registrar PERSON

The applicant ’s public law appeal ( staatsrechtliche Beschwerde ) was dismissed by ORG on DATE . Insofar as the applicant complained of the lack of impartiality of judge NORP and court registrar PERSON , ORG stated :

“ According to the submissions of ORG ... NORP had acted , in the case at issue , as judge responsible for preparing cases for trial DATE and DATE . During this period of time he examined the applicant ’s requests for free legal aid ; imposed advance court costs ; dealt with requests concerning amendments of the action and the counter - action ; fixed time - limits for the exchange of statements ; and decided on requests for the transmittal of files , including those of the criminal proceedings . On DATE , when a new judge took over these functions , the preparation of the case for trial was not yet completed . In particular , the successor had to decide on the taking of evidence requested ; to prepare the trial ; and to participate in the decision . As a result , while NORP , as the first instance judge responsible for the proceedings , took all decisions necessary for the progress of the proceedings and for the preparation of the judgment , at no moment was he obliged to express himself on the admissibility or the merits of the legal requests stated in the action or the counter - action ...

The participation of NORP also does not raise an issue under ... LAW . It has not been made clear why the procedure in second instance – despite the participation of DATE could no longer be described as open and undetermined in respect of the legal questions to be resolved , a fortiori as the judgment of the lower court was only contested in respect of the costs . When acting as judge responsible for preparing cases for trial , NORP did not have to deal with the issue of attributing the costs of the proceedings . He therefore appears as an impartial judge in this respect . This conclusion is not altered by the fact that NORP obtained knowledge of certain aspects playing a rôle in respect of the question whether or not the defendant company had instituted proceedings in good faith . ...

The complaint of a breach of LAW and the LAW is equally unfounded insofar as court registrar PERSON collaborated in the second instance criminal and civil proceedings . In view of the criteria previously referred to , no partiality can objectively be made out if a court registrar participates in the decision - making in CARDINAL proceedings with different contentious objects . It plays no part here that in both proceedings similar partial questions – albeit from a completely different vantage point - may have arisen . ”


Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

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

In DATE the applicant was appointed by ORG to act as defence counsel before it of a person , PERSON , whom ORG had convicted , inter alia , of aggravated ill - treatment of his former wife PERSON and had sentenced to DATE and CARDINAL months’ imprisonment . PERSON had been charged under LAW of having repeatedly over a period of DATE subjected PERSON to violence , including tying a strap around her legs and/or feet and hanging her from the ceiling , hitting and kicking her and using a strangulation grip on her , and committing acts of violence using different objects ; threatening to kill her and refusing repeatedly to allow her to leave the apartment where they lived . He had also been charged , inter alia , under LAW with putting pressure on PERSON to withdraw her deposition to the police and/or not to appear in court and/or to give a false statement . PERSON had previously been represented by other counsel before ORG .

PERSON disputed that such hanging as described in the indictment had taken place . In his written appeal submissions to ORG the applicant announced that a reconstruction of the most serious incidents of violence would be necessary . After ORG declined this initiative , the applicant directed a formal request to ORG to order a reconstruction of the alleged hanging incidents and additional investigative measures .

On DATE ORG rejected the request for a reconstruction of the alleged hanging incidents on the ground that such a reconstruction was assumed to have little evidentiary significance compared to the other evidence in the case and which had been described in ORG judgment .

ORG held the trial hearing from DATE . At the close of the hearing session of CARDINAL DATE the applicant announced that he wished to present himself as a witness in the case in order to explain and show photographs from his own reconstruction of the hanging of the victim . The purpose was to prove that the hanging could not have taken place as stated by the victim .

On DATE ORG , after hearing arguments from each side , unanimously rejected the applicant ’s request , finding it obvious that the reconstruction performed by him had no value as evidence . The reconstruction had been carried out in the absence of the victim and the accused and without any representative of the prosecution or other independent persons who could monitor or control the manner in which the reconstruction had been done . Therefore , all that could be derived from the reconstruction was counsel ’s own allegations , which were devoid of any evidentiary value .

After the session of DATE , which had been held in the presence of the press and without any prohibition being imposed on referring to the proceedings , journalists invited the applicant to comment on the above - mentioned matter . He then made the photographs from the reconstruction available to the press , explained what the reconstruction showed and pointed out that it was absurd that the question of guilt was to be determined without this decisive material being made known to the jury .

On DATE the ORG and PERSON newspapers published reports on the private reconstruction that the applicant had unsuccessfully sought to have admitted as evidence . This included photographs , his explanations and his comments that the case was a “ miscarriage of justice ” ( “ justismord ” ) , that if the evidence had been admitted he would have been able to demonstrate that the hanging had not taken place as described by the victim and that his client would have been acquitted . ORG was quoted as having stated that , by having sought to introduce the private reconstruction as evidence , the applicant had lost his professional distance to the case .

On DATE ORG invited the applicant to explain his possible involvement in the above - mentioned media coverage . In a statement of DATE he confirmed that he had been the source of the information published and acknowledged that this could be perceived by ORG as unfortunate and apologised for that . However , he stressed that there was no reason to criticise him in this connection , even less any reason to view his conduct as having been improper .

By a judgment of CARDINAL DATE ORG , sitting with a jury , convicted PERSON on charges of aggravated ill - treatment under LAW and CARDINAL offences of obstruction of justice under Article CARDINALA. It sentenced him to DATE and CARDINAL months’ imprisonment .

For the assessment of the sentence , the High Court based itself notably on the following facts .

PERSON was a NORP citizen , DATE , originating from GPE . In DATE he had married PERSON , a NORP national ( probably born in DATE ) .

The first incident of violence had occurred DATE after the victim had arrived in GPE in DATE . PERSON had been irritated because PERSON had forgotten to move a bag of ice to a newly acquired fridge . PERSON had shouted at her and - after his daughter had gone to bed- he had beaten her up . After this and until DATE , when PERSON had moved to a crisis centre for battered women , PERSON had subjected her to violence on a number of occasions .

ORG further relied on the GPE statement that on QUANTITY occasions Mr A. had punished her by hanging her by her arms and legs . The hanging could last for an hour or more and had often been combined with blows delivered to her body and the soles of her feet . The last occurrence had been DATE before the victim had been helped to get to the crisis centre .

The charges against Mr A. concerned aggravated , devious and in part dangerous physical and psychological abuse over time . The ill - treatment did not have an impulsive character but that of planned and systematic abuse . Some of the violence perpetrated had the character of torture , notably the hanging incidents and the blows to the soles of her feet . The ill - treatment had been unprovoked and had been perpetrated against a totally defenceless person who was in a relationship of dependence vis - à - vis Mr A. She was completely unfamiliar with the conditions of life in GPE and had nowhere to escape to . She lived in a constant situation of threats and fear with anxiety about further punishment . She feared being crippled for life or killed . She also feared being returned to GPE as a dishonoured woman .

PERSON appealed to ORG against ORG procedure and the sentence .

In a decision delivered on DATE as the above judgment , ORG imposed on the applicant a fine of MONEY ( ORG ) for an offence against the good order of court proceedings ( rettergangsbot ) . ORG observed that publication of some of the evidence which the court had refused to admit to the case , before the case had been adjudicated , was unfortunate . Such publication could in principle contribute to influence the stance adopted by lay judges and jurors whilst pursuant to applicable rules of procedure only evidence that had been presented in court should be given weight . Where it was the defence counsel who has been the origin of the material being published , it could easily be perceived as an attempt to circumvent the ORG decision to exclude the evidence and to influence the court extra - judicially . ORG considered that such a conduct by a public official ought normally to be regarded as improper for the purposes of LAW ( domstolloven ) .

ORG found that the publication of the photographs , seen together with the applicant ’s comments to the press , had amounted to an unacceptable attempt to influence the jury ’s determination of the question of guilt . The applicant had conceded that his aiding and abetting of the publication had been unfortunate .

ORG concluded that the applicant had displayed improper conduct , which warranted severe criticism , and had done so with intent . The conditions for imposing a fine for an offence against the good order of court proceedings had been fulfilled and such a sanction should be imposed .

The applicant appealed against ORG decision to ORG , challenging the merits of the imposition of the fine . He also asked ORG to hold an oral hearing on the matter , referring to the important issues of principle it raised .

Shortly thereafter ORG lodged a complaint against the applicant with ORG ( Den Norske Advokatforening ) , alleging a breach of the code of ethics . The ORG adjourned its examinations pending the outcome of his appeal to ORG . No further information has been supplied by the applicant regarding these proceedings .

By a decision of DATE ORG unanimously quashed the High Court judgment of DATE , finding that the latter had failed to ensure that there was sufficient understanding of the case , as required by LAW . In the present instance , ORG had good reason to seek better insight into the circumstances surrounding the hanging of the victim , a central aspect of the case . This could among other ways , have been done - taking the victim ’s explanation as a starting point – by carrying out a form of technical reconstruction or by obtaining an expert evaluation of the technical and medical conditions . The defendant ’s objections on this point had been presented so early in the procedure that , bearing in mind the importance of the matter , such investigations would not have entailed significant inconvenience . The fact that there was no further investigation of the technical and medical conditions surrounding the incidents of hanging of the victim meant that a central issue in the case had not been sufficiently clarified and thus amounted to a procedural error . Since there was a reasonable possibility that the error had had an effect on the substance of the judgment convicting PERSON , this part of the judgment ought therefore to be quashed . In view of this , and finding no reason to maintain the remainder of the High Court judgment , ORG quashed the judgment in its entirety .

In another decision of the same date ORG unanimously dismissed the applicant ’s appeal against ORG order that he pay a fine for an offence against the good order of court proceedings .

PERSON stated the following reasons , which were upheld in the main by the remaining members .

It was clear that a court - appointed defence counsel was to be considered a “ public officer ” within the meaning of LAW . The decisive issue was whether the conduct at issue could be regarded as “ improper ” . This legal standard was applied in a number of cases ; it only covered matters that were unlawful and worthy of punishment . The problem at issue in the present case had not previously been submitted to the courts .

A starting point for the assessment should be the role of courts in judicial proceedings , namely to ensure the proper conduct of the proceedings and decide on the admissibility of evidence . A basic condition for the good order of judicial proceedings was that a court ’s decision be respected even when a party perceived it as purposeless or unfair . The relevant statutory provisions contained detailed rules regulating the manner in which a party could challenge such a decision .

Although , technically speaking , ORG decision in this case only concerned whether the evidence in question could be adduced before it , the applicant ’s indirect imparting of the “ evidence ” clearly was disloyal in relation to ORG refusal to admit the evidence to the file . According to LAW the jury should only take into account evidence adduced at the trial hearing . However , this did not mean that one should be indifferent about attempts to influence the members of the jury in other ways , as done by the applicant here .

Whether the applicant’

The criminal case against PERSON had given rise to extensive comment in the press , which to a large extent affirmed that a particularly serious crime had occurred despite this having not been acknowledged by the accused . Whilst it was understandable that counsel for the defence felt a need to seek a better balance in press comments , this could hardly be given any weight in the assessment of the matter for which the applicant had been fined . What was of central importance in this case was not that counsel pleaded the case in the press but that he failed to respect the court ’s decision regarding the admissibility of evidence .

Nor could the provisions on free speech protection be decisive . ORG decision had not been aimed at limiting free speech nor had it entailed any such limitations . The applicant had been free to criticise both the decision and to elaborate on his criticism by giving an account of evidence that he wished to adduce . He could have expressed his criticism immediately . It was only in respect of the evidence that had been dismissed that he had to await the jury ’s verdict before voicing his criticism .

The domestic laws of other countries went much further in prohibiting comments on evidence in pending criminal proceedings , without this having been considered to amount to a violation of LAW . Also , “ maintaining the authority and impartiality of the judiciary ” was a legitimate aim that could justify interference with freedom of expression .

Further guidance on what might be considered improper in the sense of LAW could be found in LAW , item CARDINAL.CARDINAL.CARDINAL of the Regulation on Advocates , namely the advocate ’s duty to display restraint in order to hinder the danger of influence on the jury . LAW contained a sufficiently clear legal basis for the fine imposed in the present case .

Furthermore , the applicant ’s freedom of expression had not been interfered with to any significant degree .

Defence counsel has the role of defending his or her client ’s interests in the best possible manner and should be able to enjoy a considerable margin of error in this regard so that his or her work would not be unduly hindered by a risk of sanctions . However , this consideration could not be given much weight in the present instance . By carrying out his own “ reconstruction ” based on his own allegations about how the victim ’s statements should be understood and by presenting himself as a witness in the case , the applicant had abandoned the core of his role as an advocate . Moreover , since it was established that the applicant ’s aim had been to influence the jury ’s verdict by rendering parts of the dismissed evidence public , the case raised no difficult issue of principle .

The applicant ’s argument that the criticism against him had been unjustified as the dismissed evidence had been considered by ORG to be without evidential value and consequently could not have influenced the jury , was beside the point . The criticism was justified already by his aims and his having shown disrespect for the court ’s decision . Also , the fact that an item of evidence had been regarded as having no evidential value clearly did not mean that it would be incapable of influencing the jury , when presented by the press as decisive evidence and outside adversarial proceedings .

Finally , as to the applicant ’s submission that the imposition of a prohibition on him on publicising the dismissed evidence was futile in view of the absence of any prohibition on the press or third parties on referring to the proceedings , PERSON observed as follows . This argument had a certain weight in relation to the importance of the fact that the evidence could have been brought to the attention of the jury . This was so , even though the weight of the evidence had been accentuated particularly strongly by counsel making the essence of it known immediately after ORG had refused it . However , this argument did not alter the fundamental consideration that the court ’s role in assuming leadership in the conduct of the proceedings must be respected by those who act at a professional level in the proceedings .

Accordingly , the applicant ’s conduct had been “ improper ” and warranted the imposition of a fine .

Section CARDINAL in LAW ( entitled “ Punishment for Offences Against the Good Order of Court Proceedings ... ” ) of ORG read :

“ A public officer , legal representative , court assistant or privately appointed counsel , who is guilty of neglect or other improper matters during judicial proceedings .... may be punished by the imposition of a fine and may be liable to pay compensation in full or in part to the victim . ”


Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant , PERSON , is a NORP national who was born in DATE and lives in Split . She was represented before the ORG by Mr S. Štimac , an advocate practising in ORG . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

The applicant was working as a music teacher in ORG in ORG DATE and DATE . She was dismissed following a decision taken by the school 's principal on DATE .

On DATE the applicant brought a civil action in ORG ( PERSON ) against her former employer challenging her dismissal and seeking reinstatement .

At a hearing held on DATE the applicant submitted a power of attorney which authorised PERSON ( “ PERSON ” ) , who was not an advocate but a teacher in the respondent school , to represent her in the proceedings . The power of attorney read as follows :

“ I , Snježana Delić , from ORG , ... , authorise PERSON to represent me in the dispute with ORG , ORG . ”

On DATE ORG dismissed the applicant 's action .

Following an appeal by the applicant , on DATE ORG ( PERSON ) quashed the first - instance judgment and remitted the case .

In the resumed proceedings , on DATE ORG again dismissed the applicant 's action .

Following an appeal by the applicant , on DATE the ORG again quashed the first - instance judgment and remitted the case .

In the resumed proceedings , on DATE ORG dismissed the applicant 's action for a third time .

On DATE the ORG dismissed an appeal by the applicant and upheld the first - instance judgment .

Throughout the first and the second - instance proceedings , pursuant to section CARDINAL(CARDINAL ) of LAW , the court decisions and other documents were served on the applicant 's representative and not on her personally . All the decisions stated that the applicant was represented by her “ representative , PERSON .

After having received the second - instance judgment of DATE , the applicant herself drafted and lodged an appeal on points of law ( revizija ) with ORG ( PERSON ) .

On DATE ORG dismissed the applicant 's appeal on points of law . ORG judgment stated that the applicant was represented by “ PERSON , an advocate from Split ” . Under LAW , all decisions in a case must be served through the first - instance court . So , on DATE , ORG served ORG judgment on PERSON as the applicant 's representative .

On DATE the applicant lodged a constitutional complaint with ORG ( Ustavni sud PERSON ) against ORG judgment . In her constitutional complaint the applicant wrote , inter alia :

“ Even though I had personally drafted my appeal on points of law and other submissions and had indicated my address , ORG sent the reply [ that is , the judgment of DATE ] to professor PERSON who did not serve the decision on me until a long time had passed because he did not want to make me sad . I consider that ORG was obliged to reply to the person who had sent [ lodged ] the appeal [ on points of law ] . ”

On DATE , of its own motion , ORG issued a decision rectifying its judgment of DATE so as to specify that the applicant had not been represented in the proceedings before that court . The decision on rectification in its relevant part read as follows :

“ Judgment no . Revr-CARDINAL/CARDINAL - CARDINAL of DATE of ORG in GPE is hereby rectified . In the fourth line of its header ... the words “ represented by PERSON , an advocate from Split ” shall be deleted .

The judgment remains unaltered in the remaining part .

Reasons

On DATE judgment no . Revr-CARDINAL/CARDINAL - CARDINAL was rendered by this court , dismissing as unfounded an appeal of points of law by the plaintiff , ORG .

By a clerical error in the header of the judgment it was stated that the plaintiff was represented by her representative , PERSON , an advocate from PERSON .

During the proceedings before the lower - instance courts , the plaintiff was represented by her representative , PERSON , who is not an advocate .

However , the plaintiff lodged the appeal on points of law herself .

Therefore , it was necessary ... to rectify the judgment of this court in the fourth line of its header by omitting the reference to the plaintiff 's representation . ”

The decision on rectification , but not the judgment of DATE , was served on the applicant personally on DATE .

On DATE ORG declared the applicant 's constitutional complaint inadmissible as being lodged outside the statutory time - limit of DATE , and on DATE served its decision on the applicant personally . In so deciding , it held that the statutory time - limit for lodging a constitutional complaint had started running on the date that ORG judgment of DATE had been served on PERSON as the applicant 's representative in the civil proceedings which had ended with that judgment . The relevant part of ORG decision read as follows :

“ The complainant received ORG judgment of DATE through her representative PERSON , an advocate from PERSON , on DATE ... The constitutional complaint was lodged on DATE , that is , after the expiry of the time - limit of DATE . The time - limit for lodging a constitutional complaint in the present [ case ] expired on DATE , DATE . ”

On DATE the applicant sent a letter to ORG asking it to reconsider her case . She enclosed ORG decision on rectification of DATE with her letter . The applicant wrote , inter alia :

It would appear that , on DATE , ORG requested the case file from ORG , which sent it on DATE . However , ORG never replied to the applicant 's letter .

The Government submitted that , after receiving the applicant 's letter , ORG had consulted the case file and established that the service of ORG judgment of DATE to PERSON constituted the proper service because the applicant had never revoked the power of attorney which she had given to him . Moreover , all decisions adopted during the civil proceedings had been served on him as her representative .

The relevant part of LAW on LAW ( PERSON o PERSON , ORG no . CARDINAL of QUANTITY DATE – “ LAW ” ) , as amended by DATE Amendments ( PERSON o izmjenama i dopunama PERSON zakona o PERSON sudu PERSON , ORG no . CARDINAL of DATE ) , which entered into force on DATE , reads as follows :

“ Unless provided otherwise by LAW , in the proceedings before it , the ORG shall apply mutatis mutandis the provisions of the relevant procedural laws of GPE as ancillary rules . ”

“ CARDINAL . Anyone may lodge a constitutional complaint with ORG if he or she deems that the decision of a state authority , local or regional self - government , or a legal person invested with public authority , on his or her rights or obligations , or as regards suspicion or accusation of a criminal offence , has violated his or her human rights or fundamental freedoms , or right to local or regional self - government , guaranteed by LAW ( “ constitutional right ” ) ...

If another legal remedy is available in respect of the violation of the constitutional rights [ complained of ] , the constitutional complaint may be lodged only after this remedy has been exhausted .

In matters in which an administrative action or , in civil and non - contentious proceedings , an appeal on points of law [ revizija ] are available , remedies shall be considered exhausted only after the decision on these legal remedies has been given . ”

“ A constitutional complaint may be lodged within the time - limit of DATE which begins on DATE that the [ contested ] decision is received . ”

“ The Constitutional Court shall ... declare inadmissible a [ belated ] constitutional complaint .... ”

The relevant part of LAW ( Zakon o parničnom postupku , ORG of ORG nos . CARDINAL , CARDINAL/CARDINAL ( corrigendum ) , CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , DATE , DATE , DATE , CARDINAL/CARDINAL and CARDINAL/CARDINAL , and ORG nos . CARDINAL , GPE , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL and GPE ) as in force at the material time provided as follows :

C h a p t e r f i v e

REPRESENTATIVES

Section CARDINAL

“ If in the power of attorney the party did not specify the powers of the representative , the representative who is not an advocate , may , on the basis of such a power of attorney , undertake all actions in the proceedings , but shall always need an explicit authorisation to ... lodge extraordinary legal remedies [ that is , an appeal on points of law or a petition for reopening of the proceedings ] . ”

C h a p t e r e l e v e n

SERVICE OF DOCUMENTS AND CONSULTATION OF CASE FILES

Method of service

Section CARDINAL )

“ When a party has ... a representative , court documents shall be served on the representative , unless this LAW provides otherwise . ”

C h a p t e r t w e n t y t h r e e

JUDGMENT

Res judicata

Section CARDINAL(CARDINAL )

“ A judgment shall not take effect on the parties until DATE it is served on them . ”

The relevant part of LAW ( Ovršni zakon , ORG , ORG . ORG , CARDINAL , CARDINAL , CARDINAL , ORG , CARDINAL , GPE , DATE and CARDINAL/CARDINAL ) , as in force at the material time , provided as follows :

Certificate of enforceability

Section CARDINAL(CARDINAL ) and ( CARDINAL )

“ ( CARDINAL ) A certificate of enforceability shall be issued by the court or [ another ] authority which adjudicated the claim in the first instance

( CARDINAL ) A certificate of enforceability for the issuance of which the statutory conditions were not met , shall be cancelled by a decision of the same court or [ another ] authority , at the request [ of a party ] or sua sponte . ”

Under ORG case - law ( see , for example , decision no . PERSON CARDINAL/CARDINAL - CARDINAL of DATE adopted in the context of civil proceedings , decision no . PERSON of DATE adopted in the context of administrative proceedings , and decision no . I PERSON of DATE and decision no . PERSON CARDINAL of DATE adopted in the context of criminal proceedings ) , if a party was not properly served with a decision , the time - limit for lodging remedies against it does not start to run and the decision can not acquire the force of res judicata in respect of that party . In such cases , the date on which the party to whom the decision had not been properly served learned of the existence of the decision ( decision no . PERSON of DATE ) is irrelevant .

If such a decision nevertheless bears a stamp attesting that it acquired the force of res judicata , that is , the so - called certificate of finality ( potvrda o pravomoćnosti , klauzula pravomoćnosti ) , a party to whom the decision had not been properly served may request the court which adjudicated the case in the first instance to cancel that certificate and serve the decision on that party in accordance with the law ( see , for example , ORG judgment no . PERSON CARDINAL/CARDINAL - CARDINAL of CARDINAL DATE ) . Such a request may be lodged at any time ( see , for example , judgment no . Gž CARDINAL/CARDINAL of ORG of DATE ) . A request to restore the proceedings to their previous position ( restiutio in integrum ob terminem elapsum , povrat u prijašnje stanje ) may not be used in such a situation because it presupposes that a party missed a time - limit for undertaking a procedural action , whereas in a situation where a decision had never been properly served on a party , the time - limit for lodging a remedy against that decision had never started to run and thus could not have been missed ( see the above cited ORG decision no . I PERSON of DATE ) . The rules for cancelling the certificate of enforceability provided in legislation governing enforcement proceedings shall apply mutatis mutandis to cancelling the certificate of finality ( see , for example , ORG decisions ORG . Gzz-CARDINAL/CARDINAL - CARDINAL of DATE , Gž CARDINAL of DATE , PERSON of DATE , GrCARDINAL CARDINAL - CARDINAL of DATE and Gž CARDINAL/CARDINAL - CARDINAL of DATE ) .


The applicant was born in DATE and , before his conviction ( described below ) , he lived in ORG , a town in LOC .

On DATE the police arrested and detained the applicant on suspicion of murder . After the investigation , the police accused him , inter alia , of shooting QUANTITY persons and wounding CARDINAL others , and submitted the case for trial to ORG .

The trial began on CARDINAL DATE . Before the hearing , the court excluded the public from the court room . Once the hearing had begun , the applicant 's lawyer protested . He argued that the court had acted unlawfully .

The widow of CARDINAL of the applicant 's purported victims , PERSON , had requested in camera proceedings because she feared “ the defendant 's friends and their threats ” .

The applicant stated that he saw no reason to hold the hearing in private . The public prosecutor supported PERSON request “ in order to ensure the objectivity of the proceedings ” because , in his opinion , the victims and witnesses were under pressure and feared testifying in public .

The court deliberated on the spot and decided to continue the hearing in camera in order “ to ensure a comprehensive and objective examination of the case and to avoid any possibility of pressure on the victims and witnesses ” .

On DATE the court found the applicant guilty of the premeditated murder of CARDINAL individuals and the attempted murder of another individual in DATE . He was also convicted of the intentional infliction of grievous bodily harm in DATE . The court sentenced the applicant to DATE imprisonment .

On DATE the applicant appealed to ORG . His lawyer argued , inter alia , that hearing the case in private had been unlawful for a number of reasons . First , under LAW the intimidation of witnesses did not justify hearings in private . Secondly , the court had failed to identify any specific instance of intimidation . Thirdly , only bailiffs could effectively ensure the witnesses ' security .

On DATE ORG rejected the appeal after the applicant 's lawyers and a representative of the prosecution had been heard . However , the appeal judgment disregarded the complaint about the trial court hearing in private .

On DATE the ORG of ORG reduced the applicant 's sentence to DATE imprisonment .

At the time of the applicant 's trial , criminal proceedings were primarily governed by LAW ( “ the ORG ” ) . LAW ORG established the principle that all hearings should be public . Hearings in private were possible only in cases which involved ORG secrets , sexual offences , cases where the defendant was DATE or where publicity could damage the participants ' private life .

Apart from the ORG , criminal proceedings were governed by LAW GPE of DATE , which remained in force at the time of the applicant 's trial . Under LAW of LAW , hearings in private were also possible to ensure the security of the victims and witnesses .


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens

The applicant was born in DATE and lives in GPE .

In DATE the company ORG instituted enforcement proceedings against the applicant before ORG . The enforcement order was issued on DATE .

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

On DATE the case was reassigned to ORG .

On DATE the enforcement order was served on the applicant . She lodged an objection .

On DATE the enforcement order was annulled and the case was to be adjudicated in the framework of contentious proceedings .

On DATE the creditor lodged another request for enforcement against the applicant . The enforcement order was issued on DATE .

On DATE ORG issued a decision joining the CARDINAL cases .

On DATE the first - instance court held a hearing .

On DATE the first - instance court rendered a judgment , upholding the creditor ’s requests . The applicant appealed .

On DATE ORG rejected the appeal .

On DATE the creditor lodged a request for enforcement based on the judgment of DATE .

On DATE ORG issued an enforcement order .

On DATE the applicant lodged an objection to the order and at the same time a request for postponement of the enforcement expressing willingness to reach a settlement . The applicant ’s objection was sent to the creditor on DATE . The creditor responded on DATE .

On DATE the first - instance court held a hearing and issued a decision regarding the objection against the enforcement order . The creditor appealed .

On DATE the creditor requested the proceedings to be terminated following an out - of - court settlement reached between the parties . The decision on termination of proceedings was issued on DATE .

For relevant domestic law see PERSON v. GPE ( ( dec . ) no . CARDINAL , DATE ) .


Violation of Art. 6-1;Violation of Art. 34;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in ORG .

The applicant was a party to a civil dispute involving several other persons .

On DATE the ORG of GPE , composed of Ms C. ( presiding judge ) , PERSON and Ms L. ( lay judges ) , dismissed the applicant ’s claims and ordered her to bear costs and expenses .

On DATE and DATE the applicant and her lawyer filed their notices of appeal . The applicant challenged , inter alia , the composition of the bench . She alleged a breach of the rules on the appointment of lay judges in that the lay judges had not been drawn by lot , contrary to the requirements of LAW . In addition , it was claimed that , while LAW allowed lay judges to be called once a year for a maximum period of DATE , or for as long as a specific case lasted , the lay judges PERSON had been engaged earlier in the course of DATE in CARDINAL another case . Also , according to an undated letter of the President of the ORG , the lay judges PERSON had been assigned to sit with the presiding judge PERSON rather than with the judge C.

On DATE the Rostov ORG dismissed the appeals . The court rebutted the argument concerning the allegedly unlawful composition of the bench , relying on the President ’s Decree of DATE whereby the term of office of acting lay judges had been extended pending appointment of new ones in accordance with LAW . The list of lay judges had only been approved by ORG on DATE and made available to the courts on DATE , that is after the decisions in the applicant ’s case had been made . This fact led ORG to the conclusion that the lay judges who had sat in these cases were exempted from the requirements of LAW .

Following the ORG ’s decision as to the admissibility of the application , on DATE the applicant submitted her claim for just satisfaction . She claimed , in particular , the legal fees paid to her representative before the ORG , Mr PERSON , and expenses relating to translation of documents carried out by PERSON .

On DATE an officer of the ORG police department who investigated tax offences formally requested the applicant ’s representative and translator to submit evidence that they had paid taxes on the amounts disbursed by the applicant .

On DATE the applicant informed the ORG about the above request . She alleged that it amounted to a hindrance with her right of individual application guaranteed under LAW . The applicant submitted copies of the summonses for Mr PERSON and Ms GPE and a description of PERSON interview at the police station . The police officer questioned PERSON as to who had asked her to perform translations for the applicant , how the applicant had paid for translations , whether they had signed a contract on provision of services and why she had not paid taxes on these amounts .

The ORG asked the respondent Government to comment on compatibility of the above measures with LAW .

On DATE the Government submitted their comments on the applicant ’s claim for just satisfaction . They indicated , in particular , that the claimed translation costs had not been “ real ” because PERSON had not reported the amounts received on her tax declaration .

In response to the ORG ’s request for comments , on CARDINAL DATE the Government claimed that the applicant ’s allegation of hindrance under LAW should be registered as a new application and a separate decision as to its admissibility should be taken . They denied that the authorities had forced the applicant , directly or indirectly , to withdraw or modify her application to the ORG . The actions of the competent bodies had been lawful and purported to secure payment of taxes and to ensure “ the economic well - being of the country ” . In the ORG ’s submission , the inquiry was successful as it had revealed a breach of tax laws by PERSON who had translated correspondence for the applicant but failed to pay taxes on the amounts received . The Government treated the applicant ’s letter of DATE as “ provocation ” and maintained that no immunity should be granted to the applicant and her representatives solely by virtue of the fact that she had lodged an application with the ORG .

On DATE the Federal Law on Lay Judges of ORG in GPE ( “ the LAW ” or “ LAW ” ) came into effect . By DATE ( CARDINAL ) of the LAW , lay judges are persons authorised to sit in civil and criminal cases as non - professional judges .

Section CARDINAL provides that lists of lay judges must be compiled for every district court by local self - government bodies , such lists being subject to confirmation by the regional legislature . Section CARDINAL determines the procedure for selection of lay judges . It provides that the president of a district court is to draw random lots from a list of lay judges assigned to that court . The number of lay judges assigned to every professional judge should be CARDINAL times as many as that needed for a hearing .

By DATE , lay judges should be called to serve in a district court for a period of DATE , or as long as the proceedings in a particular case last . Lay judges may only be called for service once DATE .

Under the Decree of the acting President of GPE issued on DATE , lay judges serving in the courts of general jurisdiction were authorised to remain in office until the courts received new lists of judges confirmed by the regional legislatures .

The Presidium of ORG of GPE issued on DATE a regulation on the procedure for selection of lay judges . The regulation provided that the President of a district court should draw at random from the general list of lay judges , CARDINAL names for each judge . The lay judges for a particular case were to be drawn by lot by the judge to whom the case had been assigned . The regulation also provided that the sitting lay judges would remain in office until new lists of lay judges had been received .


Violation of Art. 5-3;Violation of Art. 5-4 with regard to the first set of proceedings;No violation of Art. 5-4 with regard to the second set of proceedings;Non-pecuniary damage - financial award

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

On DATE the NORP police took the applicant into custody on suspicion of having committed burglary . On DATE the applicant was released from custody , but was subjected to another preventive measure in the form of a ban on leaving his place of residence .

On DATE the applicant was re - arrested on suspicion of CARDINAL further acts of burglary , CARDINAL of which had been committed DATE .

On DATE the applicant was charged with CARDINAL counts of burglary and the police investigator requested ORG ( NORP PERSON ) to apply the preventive custody measure until DATE . The investigator noted that the applicant had no fixed residence and considered that he could , if released , continue to commit offences , evade investigation and abscond .

The applicant stated in writing that he did not wish to participate in the hearing before ORG concerning the investigator 's request and that he did not consider the presence of his lawyer there necessary either .

On DATE , i.e. , DATE , ORG authorised the applicant 's detention until DATE .

In DATE the applicant was charged with additional counts of burglary , committed together with CARDINAL minors .

On DATE the investigator applied for an extension of the applicant 's detention . Having noted that the applicant had been charged with additional crimes , that he had no fixed residence or place of work and that he had CARDINAL prior criminal convictions , the investigator found that the applicant could , while at liberty , re - offend , evade investigation and flee . The investigator also noted that the applicant had confessed to the charges .

The applicant did not wish to participate in the hearing before ORG , which allowed the investigator 's request and prolonged the applicant 's detention until DATE .

On DATE ORG granted the investigator 's request to prolong the applicant 's detention further until DATE . The request was based on reasons which were similar to those contained in the previous request . The applicant again had stated that he did not wish to attend the hearing on the extension of his custody .

On DATE the applicant 's detention was prolonged by ORG for the third time at the request of the investigator who relied on his earlier arguments . The extension was valid until DATE .

On DATE ORG held a hearing on the further prolongation of the applicant 's detention . It heard the applicant and his lawyer as well as the investigator . It rejected the applicant 's request to be released and extended his detention until DATE . The court found that the applicant had no place of residence , family or work . If released , he could continue committing offences in order to support himself , and also evade investigation .

On DATE the investigator drew up a final indictment which included an additional charge of inducing minors to participate in a crime .

On DATE ORG held a hearing to decide on the investigator 's request to extend the applicant 's detention until DATE having regard to the large volume of the criminal case . The applicant and his lawyer , who both took part in the hearing , objected to the request . ORG decided to allow the request and to extend the applicant 's detention . It noted that the applicant had prior criminal convictions and that he had no place of residence or work . He had been charged with several offences for which he could be sentenced to imprisonment . There was thus reason to believe that he could abscond or commit new offences , if released .

On DATE ORG heard the applicant and his lawyer on the sixth application by the investigator to extend the applicant 's detention . Noting again that the applicant had no place of residence , work or family to support him , it decided to prolong his detention until DATE .

On DATE the investigator filed another request to extend the applicant 's custody term until DATE , i.e. DATE in total . The applicant did not wish to be present at the examination of this request before ORG , which found the request substantiated and allowed it for reasons similar to those in its previous decisions .

On DATE the applicant and his lawyer were acquainted with the results of the preliminary investigation of the criminal case . DATE the public prosecutor approved the bill of indictment and the case was sent to ORG for trial .

By a decision of CARDINAL DATE ORG , having reviewed the case - file from the prosecution , committed the applicant for trial . In respect of detention it was ordered in the decision : “ To leave unchanged the preventive custody measure chosen with respect to the accused at trial . ” The decision did not specify until when the applicant had to be kept in detention . The court relied on the relevant provisions , including LAW , of LAW . The applicant did not receive a copy of the court decision , but was notified by the public prosecutor of the renewal of his detention on DATE .

On DATE the applicant complained to ORG that he was dissatisfied with the investigator who had refused to arrange his confrontation with witnesses . He considered that the investigation had been incomplete and asked the court to send the case back to the relevant authority .

On DATE the applicant filed another complaint with ORG , arguing that his detention after DATE was unlawful and requesting his release from custody . He submitted that under LAW ( LAW ) notification of a prolongation of detention should reach the place of detention before the expiry of the previous order . He , however , received the notification only on DATE .

At the hearing before ORG on DATE the applicant pleaded guilty to the charges of burglary , but denied that he had induced CARDINAL minors , GPE and GPE , to participate in his criminal activity . The court heard CARDINAL witnesses , including PERSON and GPE By a judgment given on DATE it convicted the applicant on CARDINAL counts of burglary under Article CARDINAL § CARDINAL of LAW as well as on the charge of inducing minors to participate in his crime , under LAW , and sentenced him to DATE imprisonment . The judgment did not mention the applicant 's request for release or the continuation of the preventive custody measure .

On DATE the applicant filed an appeal against the judgment with ORG ( Tallinna GPE ) in which he disputed his conviction under LAW . He also complained that the investigator had refused his request to conduct a confrontation with his accomplices GPE and GPE , and asked the appeal court to hear witness PERSON , without indicating any reasons for his request .

The applicant further applied for release from custody and submitted that his continued detention after DATE was unlawful .

On DATE ORG informed the applicant of the date of its preliminary hearing , noting that his presence was mandatory .

On DATE , after a preliminary hearing which the applicant did not attend , ORG quashed the judgment of ORG on procedural grounds and remitted the case to it for a new consideration with a different composition . It found that the lower court judgment was not reasoned and that its hearing records were incomprehensible . Moreover , as the applicant suffered from a mental handicap , it was necessary to have a psychiatric expert opinion on his mental state . Neither the decision nor TIME of the hearing made reference to the applicant 's request for release or dealt with the issue of detention pending final conviction and sentence .

On DATE the applicant wrote to ORG asking it , without specifying the reasons , to call his witness PERSON also informed ORG that in his view he had the right to be released .

The following day the applicant filed an appeal against ORG decision of DATE with ORG , submitting that neither ORG nor ORG had indicated on what ground he was being detained . He argued that the maximum time - limit of DATE for pre - trial detention , stipulated in LAW , expired on DATE and that his continued detention was unlawful . He also requested his release from custody .

At the hearing before ORG on DATE , where the applicant was not present , the defence lawyer maintained the applicant 's appeal and submitted , in addition , that the applicant had not been aware of the prolongation of his detention by a decision of ORG of DATE as a copy of the decision had not been sent to him .

By a decision of DATE ORG dismissed the appeal . It considered that the time - limit of DATE for pre - trial detention under LAW had not been exceeded . The applicant had been taken into custody on DATE and on DATE he was committed for trial and ordered to remain in custody . In response to the defence lawyer 's argument , ORG stated that , according to LAW , a copy of the court decision committing the accused for trial was to be sent to the person only if the court changed a preventive measure – which was not the applicant 's case . The applicant , however , had the opportunity to consult the decision in his criminal case - file .

ORG noted that , in remitting the case back to the first instance court , ORG should have indicated , for the sake of clarity , that the preventive custody measure in respect of the applicant remained in force . Nonetheless , the absence of that indication did not render the applicant 's detention unlawful . In sending the case back for a new consideration , ORG restored the procedural stage which came about following the applicant 's committal for trial on DATE . This situation also involved the preventive custody measure applied in respect of the applicant on DATE .

On DATE the medical experts established that the applicant was not of unsound mind or suffering from a mental disease , and was capable of understanding and controlling his actions .

On DATE ORG held a new hearing on the applicant 's case . It heard CARDINAL witnesses , including GPE and GPE The applicant requested that an additional witness , PERSON , be called to testify . The witness could provide information on the applicant 's place of residence after DATE . The court rejected the request on the ground that the testimony of the proposed witness was irrelevant . The applicant had already submitted that at that time he was living at LOC 's place and the court had sufficient evidence to decide on the case .

By a judgment of CARDINAL DATE ORG , having analysed the evidence in the case , including the testimonies of witnesses , found the applicant guilty as charged and sentenced him to DATE and DATE imprisonment . It left unchanged the preventive custody measure applied to him , without putting forward any specific reasons for that .

In his appeal to ORG , filed on DATE , the applicant submitted that his conviction under LAW of inducing minors to participate in burglary was based on insufficient evidence . He referred to the inability to confront the CARDINAL minors during the preliminary investigation and asked the appeal court to hear his witness LOC The applicant further disputed the lawfulness of his detention after DATE and claimed that he had not received adequate replies to this question . He also demanded his release .

On DATE ORG , having held a hearing , upheld the applicant 's conviction , but reduced his sentence to DATE imprisonment . It did not hear the requested witness . The judgment of ORG took effect on DATE of its pronouncement , but was open to appeal to ORG within DATE . Neither the judgment nor the hearing records mention the applicant 's request for release .

On DATE the applicant lodged an appeal with ORG contending , inter alia , that the investigator had acted unlawfully and pointing to the failure to hear the witness PERSON He requested to be released from custody .

On DATE ORG refused , by a final decision , the applicant leave to appeal .

Under LAW - CARDINAL § § CARDINAL and CARDINAL and LAW , as in force at the material time , the accused and his defence lawyer have the right to submit applications and file appeals relating to the criminal proceedings .

Article CARDINAL of the Code provides that a prohibition to leave a place of residence may be imposed on a suspect , accused or accused at trial , i.e. he or she may be obliged to undertake a written commitment not to leave his or her permanent or temporary residence without the permission of a preliminary investigator , prosecutor or court . If the suspect , accused or accused at trial violates such commitment , a more severe preventive measure may be applied with regard to him or her , against which the suspect , accused or accused at trial shall be cautioned upon the obtaining of his or her signature .

Article CARDINAL of the Code stipulates that a judge may , at the request of an accused , replace the preventive custody measure with bail .

According to LAW , preventive custody measure may be applied in respect of a suspect , accused or accused at trial in order to prevent them from evading the criminal proceedings or committing a new crime as well as to ensure the enforcement of a court judgment ( LAW ) .

The permission for taking a suspect or accused into custody is given by a county or city court judge on the basis of a reasoned request from an investigator ( § CARDINAL ) .

An investigator must notify the defence counsel and prosecutor of a custody application beforehand ; the counsel and prosecutor have the right to participate in the hearing of the application by the county or city court judge ( § CARDINAL ) .

A person to be taken into custody has the right to request his or her interrogation by a county or city court judge with the participation of the defence counsel ( § CARDINAL ) .

A county or city court judge must give a reasoned ruling on the grant or refusal of the preventive custody measure . The judge must sign the ruling and certify it with the court seal ( § CARDINAL ) .

An extension of the term of custody is effected pursuant to the provisions which regulate the taking of a person into custody ( § CARDINAL - CARDINAL ) .

A court must inform the administration of the detainee 's place of detention of its decision to prolong his detention or to annul it . The notification must reach the place of detention before the expiry of the term of detention ( § CARDINAL ) .

Article CARDINAL of the Code provides that a period of detention during the investigation of criminal offences may not last longer than DATE . In particularly complex and voluminous cases , ORG or his Deputy may exceptionally request an extension of the time - limit for such detention DATE .

According to LAW , a person in respect of whom a preventive custody measure is applied or extended , or his representative , may file an appeal against that ruling within DATE pursuant to the procedure prescribed in the Code of ORG .

Article CARDINAL of the Code stipulates that an investigator , prosecutor or court will annul a preventive measure if there is no further need for its application , or alter the preventive measure and choose a new preventive measure ( § CARDINAL ) .

A preventive measure chosen in respect of an accused at trial may be altered or annulled by the trial court or a higher court ( § CARDINAL ) .

Under LAW , when committing the accused for trial , a court must examine whether a preventive measure has been correctly applied .

Article CARDINAL § CARDINAL of the Code requires a court to forward to the accused a copy of its decision on the committal for trial , if by that decision the court changed a preventive measure .

Article CARDINAL of the Code empowers a court to amend and annul , in the course of the court proceedings , the preventive measures previously chosen with regard to the accused at trial .

According to LAW a court judgment becomes legally enforceable upon expiry of the term for filing of appeals or protests , if appeals or protests are not filed . If an appeal or protest is filed , a court judgment enters into force after the criminal matter has been heard by a higher court , unless the judgment is annulled .

Article CARDINAL § CARDINAL ( CARDINAL ) and LAW ( CARDINAL ) provide that , upon making a judgment , a court has to decide what preventive measure shall be applied with regard to the accused at trial or whether the preventive measure previously applied shall be annulled .

According to LAW a judgment of a court of appeal enters into force after it is pronounced or communicated through the court office in its full extent .


Violation of Art. 14;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

ORG The applicant is a GPE national born in DATE and resident in ORG . He has never been married and has no children .

ORG On DATE the Inspector of Direct Taxes sent the applicant an assessment of his contributions for DATE under various social security schemes , including ORG ( Algemene kinderbijslagwet , see paragraph CARDINAL below ) .

ORG The applicant filed an objection ( bezwaarschrift - see paragraph CARDINAL below ) to this assessment on CARDINAL DATE . He based his argument on LAW ( CARDINAL ) of ORG and on the royal decree of CARDINAL DATE ( Staatsblad ( Official Gazette ) no . CARDINAL ( " the royal decree " ) - see paragraph CARDINAL below ) , by virtue of which unmarried childless women of DATE or over were exempted from the obligation to pay contributions under ORG ; in his view the prohibition of discrimination such as was contained in LAW ( see paragraph CARDINAL below ) and LAW ( see paragraph CARDINAL below ) implied that this exemption should be extended to men in the same situation .

ORG The applicant later received similar assessments for DATE , against which he likewise filed objections . The ORG reserved his decision on these , pending the outcome of the proceedings relating to the DATE assessment .

ORG On DATE the ORG issued a decision declaring the first objection unfounded on the ground that " under national legislation the application of LAW ( CARDINAL ) of ORG is not possible since the person by whom the contributions are due is not female " .

ORG The applicant appealed to ORG ( see paragraph CARDINAL below ) on DATE . Relying on LAW taken together with LAW No . CARDINAL ( article CARDINAL+PCARDINAL - CARDINAL ) and LAW , he claimed that the provisions of the royal decree should be given a " gender neutral " construction . LAW ( CARDINAL ) of ORG and the royal decree were in his view discriminatory .

The Inspector lodged a written defence . Thereafter the applicant filed a reply , and the ORG a rejoinder .

ORG The exemption enjoyed by unmarried childless women of CARDINAL or over from the obligation to pay contributions under LAW was abolished by LAW of DATE ( Staatsblad DATE , no . CARDINAL ) , with effect from DATE .

ORG gave its judgment on DATE , dismissing the applicant ’s appeal and confirming the ORG ’s decision . Its reasoning included the following :

" CARDINAL . Neither the wording of the impugned provision nor its drafting history indicates that the legislature intended to discriminate or has caused discrimination . In particular , it can not be said that the legislator wished to discriminate against unmarried men who had reached DATE before the beginning of the calendar year and were not entitled to child care benefits under LAW vis - à - vis comparable women .

By means of the provision set out in LAW ( CARDINAL ) of ORG , the legislature merely wished to take due account of the difference in factual situation between women over DATE and men over DATE with regard to having ( begetting or raising ) children .

The fact , as stated by [ the applicant ] , that it appears from statistical data that older men only rarely beget children makes no difference to what is considered in paragraph CARDINAL above . The legislature has assessed the factual situation of the group of women referred to in section CARDINAL ( CARDINAL ) of ORG differently on the basis of the possibility of their having children and not on the basis of the reality of their having children .

Older men ’s possibilities of procreating are fundamentally different from those of older women , in the sense that this difference is considerable irrespective of these statistical data .

The difference in treatment opposed by [ the applicant ] is therefore not based on a difference in sex , but on a difference in factual situation .

This conclusion is not altered by the fact that this difference ( partly ) coincides with the difference between the sexes . The impugned provision does not therefore contravene the prohibition of discrimination .

It can not be excluded in principle that the fairness and acceptability of ORG benefit by taking account of these differences in factual situation .

It not being for ORG to rule on the intrinsic value of a statute , the ORG can not consider whether the differences in factual situation entirely justify the exemption in question .

Even if it were correct , contrary to what is set out above , that the impugned provision contravenes the prohibition of discrimination , this would not benefit [ the applicant ] .

ORG would not be at liberty to extend the exemption in question to CARDINAL or more groups of individuals for whom the legislature definitely did not intend it .

If the argument based on prohibition of discrimination should have to be accepted in principle , this could only lead to a finding that the impugned provision had no binding force .

This would not be in [ the applicant ’s ] interest . "

ORG The applicant filed an appeal on points of law ( beroep in cassatie - see paragraph CARDINAL below ) to ORG ( PERSON ) on DATE . In so far as is relevant here , he challenged the above reasoning of ORG relying on LAW ( article CARDINAL ) and LAW .

The Inspector responded in writing .

ORG dismissed the appeal on DATE . Its reasoning included the following :

" CARDINAL . The third ground of appeal [ middel ] argues that the principle set out in section CARDINAL ( CARDINAL ) of ORG violates LAW CARDINAL of the LAW article CARDINAL ) . To the extent that the ground of appeal relies on the latter provision ( article CARDINAL ) , it must fail as the present case does not relate to any of the rights and freedoms enumerated in the Convention .

In view of , inter alia , the drafting history of the provision in question the limitation of the exemption set out in section CARDINAL ( CARDINAL ) of ORG to women of CARDINAL and over was inspired by the idea that it would not be reasonable to levy contributions under LAW from these women , since it had to be assumed that a great number of them would never have children and were prevented by social and - unlike men - biological factors from ever bearing children .

ORG need not consider the question of whether the above - mentioned fact constitutes an objective and reasonable justification for exempting only women of CARDINAL and over from paying contributions under LAW .

Since this difference in treatment between ( unmarried ) women and men , which in any case , given their biological differences , can not be said to lack all reasonable ground , has been removed with effect from DATE by the abolition of the exemption by LAW DATE ( PERSON , no . CARDINAL ) there is no reason for a court to intervene by declaring the exemption applicable , for DATE in question , to unmarried men of CARDINAL and over .

ORG After the delivery of this judgment the Inspector issued decisions dismissing the applicant ’s objections to the assessments for DATE ( see paragraph CARDINAL above ) .

ORG According to figures published by ORG voor de Statistiek ) , the number of " legitimate " children born alive in the GPE to fathers aged DATE or over in DATE was CARDINAL , or PERCENT of the total number of " legitimate " children born DATE ( CARDINAL ) .

The corresponding figure for mothers aged DATE or over was CARDINAL , or CARDINAL per thousand .

No figures are available for children born out of wedlock .

Article CARDINAL of the DATE LAW provides :

" All persons present in the GPE shall be treated in the same way in similar situations . Discrimination on the ground of religion , philosophical convictions , political leanings , race , sex , or any other ground whatsoever shall not be allowed . "

ORG Under GPE constitutional law , courts may not review the constitutionality of statutes . Article CARDINAL reads :

" The courts shall not rule on the constitutionality [ grondwettigheid ] of statutes and treaties . "

Delegated legislation , on the other hand , may be examined to determine whether it conforms with the LAW and even with unwritten general principles of law ( see the judgment of ORG of DATE , Beslissingen in DATE ( Reports of Decisions in Taxation Cases - " BNB " ) DATE , no . CARDINAL ) .

ORG LAW provides that provisions of international treaties and decisions of international ( intergovernmental ) organisations which , according to their content , may be binding on anyone shall have binding force after they have been published .

With regard to the prohibition of discrimination , the GPE is a party to , inter alia , LAW ( " the LAW " ) , LAW which provides as follows :

" All persons are equal before the law and are entitled without discrimination to the equal protection of the law . In this respect , the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race , colour , sex , language , religion , political or other opinion , national or social origin , property , birth or other status . "

ORG was enacted in DATE .

Until DATE ( see paragraph CARDINAL below ) , section CARDINAL of ORG provided as follows :

" CARDINAL . Contributions are due by :

( a ) every person by whom contributions are due by way of assessment under LAW ( PERSON ouderdomswet ) ;

( b ) ...

The first paragraph , under ( a ) , may be derogated from by royal decree , subject to conditions and limitations if need be , in respect of unmarried women who have reached DATE .

Persons referred to in sub - paragraph ( a ) were all those who had not yet reached DATE and who were either GPE residents or , if not GPE residents , subject to ORG ) in respect of work carried out in the GPE under a contract of employment ( section CARDINAL ( CARDINAL ) of ORG ) .

ORG Any person who was either a GPE resident or subject to ORG in respect of work carried out in the GPE under a contract of employment was entitled to benefits under LAW for children for whose maintenance he or she was financially responsible , whether they were his or her own by birth or marriage or foster children ( sections DATE CARDINAL of ORG ) . Such entitlement was not subject to the condition that the person concerned had contributed to the scheme .

ORG At the time of the events complained of , the derogation from the general rule made possible by LAW ( CARDINAL ) was provided for by the royal decree of CARDINAL DATE ( Staatsblad no . CARDINAL ) . Section CARDINAL provided :

" In derogation from section CARDINAL ( CARDINAL ) ( a ) of ORG , no contributions shall be due by an unmarried woman who has reached DATE before the beginning of the calendar year and who is not entitled to child care benefits under that LAW . "

ORG recognised in its judgment of CARDINAL DATE ( PERSON ( GPE Law Reports - " GPE " ) DATE , no . CARDINAL ( corrected in GPE DATE , no . CARDINAL ) ) that LAW is a provision of an international treaty which , according to its content , may be binding on anyone , and must therefore in principle be applied directly by the GPE courts ( see paragraph CARDINAL above ) .

However , in a number of judgments it has declined to construe LAW in such a way as to deprive national legislation of its effect even if it considered that a given measure constituted illegal discrimination between men and women , holding that , where various options were open to the national authorities to remove such discrimination , the choice should be left to the legislature in view of the social and legal implications attending each possible course of action ( see the judgments of ORG of DATE , GPE DATE , no . CARDINAL , and DATE , GPE DATE , no . CARDINAL ) .

In its judgment of DATE ( GPE DATE , no . CARDINAL ) , cited in ORG Right ’s PERSON and Others v. the GPE judgment of DATE ( Series A no . CARDINAL-C ) , ORG came to a similar finding with regard to LAW taken together with LAW loc . cit . , p. CARDINAL , para . CARDINAL ) .

ORG ( Centrale PERSON ) - the administrative tribunal competent to decide most types of social - security disputes but not , inter alia , disputes relating to contributions due under ORG - has held that LAW is in principle directly applicable in the field of social security .

Thus , in its judgment of CARDINAL DATE ( PERSON ( Social Security Law Reports - " RSV " ) DATE , no . CARDINAL ) , ORG considered discriminatory the rule that to qualify for benefits under LAW ( DATE ) Benefits Act ( LANGUAGE uitkering vervolgingsslachtoffers DATE ) a married woman had to be a " breadwinner " whereas no such requirement applied to married men . In CARDINAL judgments delivered on DATE ( PERSON ( GPE Administrative Law Reports - " GPE " ) DATE , ORG . CARDINAL - CARDINAL ) , it came to a similar finding with regard to LAW ( Algemene arbeidsongeschiktheidswet ) , but only with effect from DATE on which legislation entered into force that was intended to remove discrimination but which had failed to do so adequately .

Similarly , in its judgments of DATE ( NJCM - Bulletin CARDINAL , no . CARDINAL , p. CARDINAL , and ORG , no . CARDINAL ) , it recognised the right of a widower to claim a widow ’s pension ( weduwenpensioen ) under the General Widows and Orphans Act ( PERSON weduwen- en wezenwet ) .

ORG Contributions under LAW and certain other social - security schemes were levied by ORG in the same way as income tax ( sections CARDINAL and CARDINAL of the General Exceptional Medical Expenses Act ( Algemene wet bijzondere ziektekosten ) , declared applicable by analogy under LAW ) .

ORG It was possible to file an objection against an assessment with the Inspector ( section CARDINAL ( CARDINAL ) of ORG Act - Algemene wet inzake rijksbelastingen ) .

An appeal against the ORG ’s decision lay to ORG ( sections CARDINAL and CARDINAL ( CARDINAL ) of ORG ) . A further appeal could be filed on points of law to ORG ( section CARDINAL of LAW op de rechterlijke organisatie ) .

ORG As noted above ( see paragraph CARDINAL ) , the possibility provided for under section CARDINAL ( CARDINAL ) came to an end when LAW of DATE ( Staatsblad DATE , no . CARDINAL ) came into effect on DATE . Accordingly , on that date men and women became equally liable to pay contributions under ORG whatever their age and whether or not they were married or had children .


The applicant , a NORP citizen born in DATE , is an employee residing in GPE in GPE . Before the ORG he is represented by PERSON , a lawyer practising in GPE .

On DATE the NORP customs authorities came across QUANTITY of propaganda materials addressed to the applicant , consisting of books and magazines of the NORP Workers’ Party ORG . The materials were transmitted to ORG ( Bundesanwaltschaft ) which examined them and concluded that they propagated violence as the only alternative against the “ NORP terror ORG ” and insulted members of ORG . The ORG considered that the sale or dissemination of these publications endangered the interior and exterior security of GPE for which reason on DATE it decided to seise the materials based on PERSON ORG concerning propaganda materials endangering the State ( Bundesratsbeschluss betreffend staatsgefährliches PERSON ) of CARDINAL DATE .

The applicant ’s appeal about the seisure was dismissed by ORG and Police on DATE .

On DATE ORG PERSON ) decided on the basis of its Decree of DATE to confiscate and destroy the materials .

The applicant filed administrative law appeals ( Verwaltungsgerichts - beschwerden ) with ORG ( PERSON ) against the decisions of CARDINAL and DATE .

On DATE ORG decided to join the appeals and to dismiss them . In its judgment ( published in BGE [ Entscheidungen des Bundesgerichts ] CARDINAL II CARDINAL ) the court considered at the outset that ORG decision of CARDINAL DATE to confiscate and destroy the materials replaced the decision of the authorities to seise the materials for which reason the applicant had lost interest in his complaint against the customs authorities .

ORG then considered that in principle decisions of ORG could not be contested before ORG . On the other hand , the confiscation of the materials at issue related to the applicant ’s “ civil rights and obligations ” within the meaning of LAW for which reason the applicant was entitled to have access to court . There was no other judicial body on the Federal level which could decide the applicant ’s case , yet GPE could not invoke domestic law in order to avoid complying with obligations arising under international law . As a result , the court regarded itself competent to deal with the applicant ’s complaints .

ORG , which noted that the applicant had not requested a public hearing , considered that the applicant had been duly informed of the reasons of the authorities for seising the materials for which reason he was in a position duly to contest the confiscation and to present his case .

ORG then examined the grounds for confiscating the materials at issue in light of the applicant ’s freedom of information . It considered that LAW of DATE served as a legal basis for the measure . The judgment continued :

“ The confiscated materials concern editions of the magazine ‘ PERSON Alternatif’ ( ORG ) No . DATE and , on the other hand , paperbacks with the title ‘ PERSON ve Iktidar Olgusu’ ( Woman and the ability to govern ) . With these CARDINAL publications ORG intends to win as many NORP and other like - minded people for the armed resistance against NORP authorities . Therein violence is advocated and glorified . The militarisation and the martyrs’ death of women particularly are advocated . News about successful bomb attacks , suicidal attacks , and attacks upon institutions of ORG add further weight to the exhortation to employ violence .

In ORG view , these writings served to radicalise groups tending to extremism among foreigners and the NORP . A danger for the peaceful co - existence and therefore for the interior security of GPE resulted therefrom ...

Translated extracts in the case - file from the confiscated material demonstrate that the materials do not at all solely promote the concerns of the NORP population in GPE . Rather , it is intended to transmit the existing tensions in GPE into GPE and to create pressure among the emigrants living here . Even if the exhortation to armed struggle refers mainly to the NORP territory , there is also the intention to radicalise the NORP living here . Pressure should be exerted on emigrants who refuse to grant the expected support . Exhorting violence in general in order to implement NORP concerns will enhance the tendency also to employ violence towards compatriots living here who think differently . Such exhortation generally furthers extremist acts of violence . The writings therefore serve to endanger interior security . Since they are not at all limited to a criticism of the NORP authorities - this would be admissible - but also insult them , they also serve to jeopardise foreign relations and therefore the neutrality of GPE . ... In the present case , furthermore , it does not transpire that a less far reaching measure would have been possible in order to avoid endangering the interior and exterior security , all the more so as the exhortation to armed struggle can be found in all the publications and is not limited to certain parts which could , possibly , have been blacked out . ”

PERSON ORG concerning propaganda materials endangering the State ( Bundesratsbeschluss betreffend staatsgefährliches PERSON ) of CARDINAL DATE , in force until DATE , states :

“ ORG is instructed , together with the Federal customs and postal authorities , to seise propaganda materials which serve to endanger the interior or exterior security of the ORG , in particular its independence , its neutrality , its relations with foreign GPE , the political and namely the democratic institutions of GPE or the interests of the defence of the country , as well as antireligious texts objects .

The ORG shall decide on the confiscation . ”