André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens

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

The applicant , who originates from GPE , moved to GPE in DATE and met his former wife , PERSON , during a visit to GPE . They married in DATE , and DATE PERSON moved to GPE . In DATE they had a daughter , Y. In DATE , X filed for divorce . ORG ( tingsrätten ) granted the divorce and gave the applicant and X joint custody of Y. It further decided that Y should live with X and granted the applicant contact rights DATE .

In DATE , on the third contact occasion , the applicant took Y to GPE and arranged a travel ban for X , making it impossible for her to leave GPE if she were to travel there . X contacted the NORP police . In NORP custody proceedings launched by ORG relatives , the NORP authorities took a temporary decision that PERSON ’s mother should care for Y but that Y had to remain in the country . However , despite the authorities’ decision , PERSON ’s brother took Y to GPE where she was reunited with X in DATE .

The applicant remained in GPE until DATE when he voluntarily returned to GPE . He was arrested upon return and , on DATE , ORG convicted him of gross unlawful separation of a child from his / her legal guardian ( grov egenmäktighet med barn ) and sentenced him to DATE imprisonment .

When the applicant was released on parole , ORG , on DATE , issued restraining orders against the applicant vis - à - vis X and Y for DATE under LAW ( lagen om besöksförbud , CARDINAL:CARDINAL ) .

The applicant appealed to ORG which , on DATE , after having held an oral hearing , decided not to deviate from the assessment of the public prosecutor .

The applicant appealed to ORG ( hovrätten ) for LOC which , on DATE , rejected the appeal . The applicant did not appeal against this decision to ORG ( ORG domstolen ) .

On DATE , ORG decided to extend the restraining order against the applicant vis - à - vis Y for DATE .

The applicant again appealed to ORG which , on DATE , decided not to deviate from the assessment of the public prosecutor .

ORG rejected the applicant ’s further appeal , and , on DATE , ORG dismissed the appeal since the original decision had already become time - barred .

It appears that at DATE the applicant initiated civil proceedings in which he requested contact rights with Y every second DATE TIME in the presence of an assistant from ORG ( GPE ) .

On DATE , ORG held a preparatory hearing in the presence of the applicant , X and their legal counsel . In order to make a better assessment , the court requested ORG to submit relevant information concerning the parties before proceeding with the case .

On DATE , ORG presented the following information based on individual meetings with the applicant , X and Y.

The applicant considered that he had been punished twice for his criminal conduct since , even after fully serving his sentence , he was being denied any contact with Y.

As to X , she described how Y had been abducted at a time when she was still being breastfed . The applicant ’s mother had by then already travelled to GPE , which showed that the criminal act had been planned . When Y had returned to GPE , she had forgotten NORP and had been frightened of airports and suitcases . X had had to seek psychological help . During his stay in GPE , the applicant had initiated legal proceedings there to the effect that she and her mother were sentenced to , respectively , DATE and CARDINAL years’ imprisonment . The applicant had never sent any letters or gifts to Y.

As concerned Y , she questioned why the applicant had not kept in contact with her during DATE he had remained in GPE . She now felt it was too late . She considered that it was the applicant ’s fault that she and X could never visit their relatives in GPE . She was sure that X would assist her if , in the future , she wished to establish contact with the applicant . For the moment she did not wish to have any contact with him , not even letters .

On DATE , in an interim decision , ORG rejected the applicant ’s request for contact rights while the proceedings were ongoing . It noted that the court had decided on a restraining order against the applicant vis - à - vis Y and that Y had clearly expressed her wish not to have any contact with the applicant . Considering Y ’s age , there were no reasons to assume that this did not correspond to her own true will .

On DATE , ORG again decided to extend the restraining order against the applicant vis - à - vis Y for DATE .

The applicant appealed to ORG , requesting primarily that the decision be reversed , secondly that it be to some extent limited to enable him to visit Y every second DATE for TIME , and thirdly that it be limited to enable him to contact Y through internet . His latter claims depended on whether or not the court granted him any contact rights in the ongoing proceedings . Before the court he stated that there was no risk that he would harass or commit any criminal acts against Y. The purpose of the restraining order could be fulfilled in a less restrictive way so that it did not infringe his possible contact rights . He had fully respected the previous restraining orders . His crime had been committed DATE and he now realised that it had been wrong to take Y to GPE . It was in Y ’s best interest to have contact with both of her parents .

In response to the applicant ’s appeal , the public prosecutor argued that Y did not wish to have any contact with the applicant and that the restraining order allowed Y to feel safe and to live a normal life without fear of being abducted again .

On DATE , ORG found that there were still reasons to maintain the restraining order against the applicant vis - à - vis Y even if his crime had been committed a long time before .

The applicant appealed to ORG and ORG , which on DATE and CARDINAL DATE , respectively , decided to refuse leave to appeal .

The applicant appealed to ORG , maintained his previous submissions and added that Y was influenced by X , who had systematically tried to make her afraid of the applicant . Y had only been DATE when the applicant had taken her to GPE . She could not possibly be afraid of such acts DATE . The applicant had never harmed Y. He had sent her gifts and money but they had never reached her . He had not had any contact with her for DATE .

In response to the applicant ’s appeal , the public prosecutor argued that the restraining order did not prevent Y from having contact with the applicant if she so wished . It was up to her to decide whether or not she wanted to receive anything from the applicant . Y , who was now DATE , did not wish to have any contact with the applicant . There were no reasons to go against her will . The crime that the applicant had committed was serious . The applicant had not presented any new circumstances .

On DATE , ORG , after having held an oral hearing , found that there were still reasons to maintain the restraining order against the applicant vis - à - vis Y even if his crime had been committed a long time earlier .

In the meantime , it would appear that , on DATE , upon the applicant ’s request , ORG had decided to dismiss the civil proceedings concerning contact rights .

The applicant appealed against the restraining order to ORG which , on DATE , decided to refuse leave to appeal . ORG , on DATE , dismissed a further appeal since the original decision had already become time - barred .

The applicant appealed to ORG and submitted the following . DATE had passed since he had committed the criminal act upon which the restraining order was based . A decision which made all contact between a child and its parent impossible breached FAC as well as LAW . Y was now DATE and it would be practically impossible to abduct her against her will . His only wish was to be granted limited contact rights in the presence of an assistant from the social welfare authority or merely be granted contact with Y through internet . The purpose of the restraining order was to prevent him from abducting NORP Since Y had a need for a good relationship with both her parents , it was disproportionate to prevent all contact between her and the applicant .

On DATE , ORG , after having held an oral hearing , lifted the restraining order . It stated that although the crime committed by the applicant was serious , it had been committed only once , DATE . Moreover , the applicant had continuously respected the restraining order and the circumstances had changed over DATE . Therefore , in the court ’s view , there was no longer any risk of future harassment or criminal acts against Y , on the part of the applicant .

It appears that , at DATE , the applicant initiated new civil proceedings where he requested contact rights with Y. In DATE , during a preparatory hearing at ORG , the applicant and X agreed that the applicant should write a letter to Y in order to explain why he had stayed away from her and that the letter should be handed to her by an assistant from ORG . Y would thereafter have the opportunity to respond if she so wished .

The basic provisions mainly applicable in the present case are laid down in LAW , as in force at the relevant time . According to LAW , an order prohibiting a person from visiting or in other ways contacting another person or follow that person ( “ restraining order ” ) may be issued if , due to special circumstances , there is a risk that the person against whom the order is issued will commit criminal acts , persecute or severely harass the protected person . In the risk assessment , special attention should be paid to whether or not the person against whom the order is decided has previously committed criminal acts against any person ’s life , health , peace or tranquillity . According to LAW , restraining orders should be provided with necessary limitations due to the particular circumstances in the individual case . The basic prerequisite for a restraining order is that there is a clear risk that the protected person will face criminal acts , persecution or other forms of severe harassment ( travaux préparatoires , prop . CARDINAL/CARDINAL:CARDINAL , p. CARDINAL ) . In the risk assessment , one should consider the nature of any previous crimes committed , whether there are several criminal acts and whether they were committed on CARDINAL or several occasions ( ibid , p. CARDINAL ) . According to LAW , a restraining order shall be issued for a fixed time period , maximum DATE . It may be extended for maximum DATE at a time .

A decision to extend a restraining order demands a full investigation , which should have regard to the fact that the interference with the affected person ’s freedom of movement may be perceived as more severe the longer it lasts . As to a request for extension of the restraining order , special attention should be given to whether or not the affected person has complied with the order . If previous criminal acts have formed the basis of the risk assessment , one should reassess whether these acts still provide a basis to conclude that there is a clear risk of future criminal acts in view of the time that has passed ( ORG decision of DATE , ORG DATE p. CARDINAL ) .

Appeal against a prosecutor ’s decision to issue a restraining order lies to ORG . The person concerned has the right to be granted an oral hearing upon request ( Sections DATE of the LAW ) . Appeal against ORG final decision lies to ORG . Since DATE , an examination of the case on the merits before ORG requires leave to appeal . The same applies to an appeal to ORG CARDINAL and CARDINAL of the Act on ORG , lagen om domstolsärenden , CARDINAL ) .

As to the issue of contact rights , the Children and Parents Code ( föräldrabalken , CARDINAL:CARDINAL ) stipulates that the best interest of the child shall be the primary consideration in the determination of all questions concerning custody , residence and contact . In the assessment of what is in the best interest of the child , particular attention shall be paid to the child ’s need for close and good contact with both parents . The risk of the child being abused , unlawfully removed or detained , or otherwise suffering harm shall be taken into account . In the determination of questions concerning custody , residence and contact , regard shall be had to the wishes of the child , taking into account the child ’s age and maturity ( LAW , LAW ) , of the Code ) .

In cases concerning contact rights , the court can , if it finds it necessary , decide upon such rights temporarily while the proceedings are pending . The court may also request ORG to submit relevant information in order to be better placed to make an assessment . The ORG shall , if appropriate , collect information from the parents and the child before reporting to the court ( LAW , LAW , of the LAW ) .


Violation of Art. 6-1 with regard to refusal to appoint a lawyer;No violation of Art. 6-1 with regard to alleged arbitrariness of decision;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award

In DATE the applicant was found to be partially disabled . She continued working . On DATE the applicant was obliged to sign an agreement with her employer according to which her contract of employment would expire on DATE .

On DATE ORG in GPE declared the applicant fully disabled as from DATE . A full invalidity pension was granted to the applicant .

On DATE her former employer rehabilitated the applicant for the persecution to which she had been subjected in the past .

After the entry into force of the Extra - Judicial Rehabilitations Act ( see “ Relevant domestic law ” below ) the applicant claimed that her invalidity pension should be increased . She alleged , in particular , that the termination of her contract of employment in DATE had been due to political persecution within the meaning of LAW of LAW .

On DATE ORG dismissed the applicant ’s claim on the ground that she had failed to comply with the requirements set out in Sections CARDINAL and CARDINAL of LAW .

On DATE ORG upheld the decision . ORG heard the parties and established that the applicant had failed to submit a certificate within the meaning of LAW of LAW which was a prerequisite for granting her claim . ORG noted that separate proceedings concerning this issue were pending before GPE . It was further stated in the reasons for the judgment that the representative of ORG had promised to adjust the applicant ’s pension upon the delivery of such a certificate .

On DATE the Bratislava ORG ordered the successor of the applicant ’s former employer to deliver a certificate pursuant to Section CARDINAL(CARDINAL ) of FAC to the applicant . Prior to that ORG appointed an advocate to represent the applicant at the latter ’s request . The applicant received the certificate on DATE .

On DATE the applicant again requested ORG to adjust her invalidity pension pursuant to LAW . The request was dismissed on DATE . The decision stated , with reference to LAW ) of the Extra - Judicial Rehabilitations Act , that the applicant ’s invalidity pension could not be adjusted as her contract of employment had been terminated in the course of DATE when she had acquired the right to an invalidity pension .

On DATE the applicant challenged the decision before ORG . She also requested ORG to appoint a lawyer to represent her in the proceedings . She referred to LAW and explained that her handicap prevented her from coming to the court in person . The applicant further stated that she was indigent and that the case might raise questions of law of a complex nature .

In a written submission of CARDINAL DATE ORG asked the court to uphold the decision challenged by the applicant . This submission was forwarded to the applicant who submitted a written reply on DATE . The applicant maintained , in particular , that the conclusion of the administrative authority was erroneous and contrary to the pledge which its representative had earlier made ( see paragraph CARDINAL above ) .

On DATE ORG , which took over the case from the former ORG , summoned the applicant to a hearing scheduled for DATE . A type - written remark on the upper part of the summons read as follows :

“ We hereby inform you that no compulsory defence is required in the proceedings and that the court can not , therefore , appoint a defence counsel to assist you . In case that you wish to be represented by a lawyer , you should choose CARDINAL yourself . ”

On DATE the applicant again requested ORG that a lawyer be appointed to represent her in the proceedings . She explained , in particular , that her health did not allow her to attend the hearing , that her only income consisted of a modest invalidity pension and that she met the requirements for the appointment of a lawyer under the relevant provisions of LAW . She asked the court to notify her of its position on her request “ by means and within a period corresponding to the relevant legal rules ” . The applicant further requested that the hearing be adjourned as , in her view , the court ’s proceeding with the case in her absence would be contrary to her fundamental rights .

On DATE the applicant informed ORG that her health did not allow her to appear at the hearing scheduled for DATE . In the letter the applicant stated that a lawyer should be appointed to represent her and complained that her requests to this effect of CARDINAL DATE and of DATE had not been dealt with .

On DATE ORG upheld ORG decision of DATE . ORG noted that the applicant ’s contract of employment had been terminated by DATE and that she had been declared fully disabled and granted an invalidity pension with effect from DATE , that is DATE following the termination of her employment . The court concluded that her invalidity pension could not be adjusted pursuant to LAW ) of the Extra - Judicial Rehabilitations Act .

On DATE the applicant appealed . She alleged that ORG had decided arbitrarily and that it had disregarded the pledge to grant her claim after the delivery of the certificate made by the representative of ORG in the proceedings leading to ORG judgment of CARDINAL DATE . The applicant further argued that ORG had failed to establish the relevant facts correctly . On DATE the applicant submitted further documentary evidence to the appellate court .

On DATE ORG upheld the first instance judgment . ORG reiterated that the applicant had been granted a full invalidity pension as from DATE , that is DATE following the termination of her contract of employment . It therefore considered that the applicant had not suffered any damage which could be compensated pursuant to LAW ) of the Extra - Judicial Rehabilitations Act . ORG pointed out that the representative of the defendant had apparently overlooked the above fact when she had stated that the claim would be granted upon the delivery of the relevant certificate to the applicant . However , that statement had been made in a different set of proceedings and it could not affect the decision on the applicant ’s claim in the proceedings under the consideration . The appellate court decided in camera .

On DATE the applicant lodged an appeal on points of law . She complained , inter alia , that the appellate court had not held a hearing in the case and had thus prevented her from submitting her arguments . On DATE the applicant requested ORG to appoint a representative to her in the proceedings on her appeal on points of law . She explained that the case was complex , that her handicap prevented her from acceding to the court room and that her only income was an invalidity pension amounting to CARDINAL NORP korunas . The applicant also maintained that her constitutional right to legal protection had been violated in that her request for a lawyer to be appointed had not been processed in due manner .

On DATE a different chamber of ORG dismissed the applicant ’s appeal on points of law . ORG found that the applicant had been duly summoned to the hearing before ORG held on DATE and that she had failed to appear without an excuse . As to the appellate proceedings , ORG recalled that ORG CARDINALf and CARDINAL of the Code of Civil Procedure permitted the appellate court to decide on the case without hearing the parties . Furthermore , in the course of the proceedings the applicant made proposals as regards the evidence to be taken , she made comments on the case and submitted her arguments to the courts .

ORG further noted that the applicant “ had been free to choose a legal representative and to apply for free legal representation ” . Since the applicant did not lack legal capacity to act , the courts were not obliged to appoint a lawyer ex officio . ORG examined the applicant ’s appeal on points of law in camera with reference to DATE ) of the Code of Civil Procedure .

Article CARDINAL(CARDINAL ) provides that courts may appoint a representative at the request of a party who meets the requirements for waiver of court fees when it is necessary for the protection of that party ’s interests . Pursuant to paragraph CARDINAL of Article CARDINAL , the president of the court ’s chamber shall appoint an advocate to represent a party in circumstances set out in the first paragraph when the protection of that party ’s interests so requires .

Under Article CARDINAL ) , the presiding judge may grant a party ’s request for waiver of court fees where it is justified by the situation of such a party and provided that the claim at issue is neither frivolous nor clearly devoid of any prospect of success .

Pursuant to Article CARDINAL(CARDINAL ) , courts deliver a formal decision ( “ uznesenie ” ) unless the law otherwise provides . Decisions have to be delivered , inter alia , on issues relating to the conditions for proceeding with a case and also to matters relating to the conduct of proceedings .

Article CARDINALf entitled courts to deliver a judgment without prior oral hearing in simple cases , in particular when there was no doubt that the administrative authority had established the facts correctly and the point at issue was a question of law . In its finding GPE CARDINAL of CARDINAL DATE ORG found that LAW of LAW was contrary to LAW and also to LAW . As a result , this provision ceased to be effective .

Pursuant to DATE ( CARDINAL ) , in cases concerning social security claims an appeal to ORG is available against ORG decision . The appellate court ’s decision may be challenged by means of an appeal on points of law before a different chamber of ORG . In appellate proceedings and in proceedings on appeal on points of law ORG is not required to hold a hearing .

The aim of LAW ( PERSON o mimosúdnych rehabilitáciách ) is to redress certain infringements of property and social rights which occurred DATE and DATE . The following provisions are relevant in the present case .

Pursuant to Section CARDINAL(CARDINAL ) , legal actions terminating a person ’s contract of employment for reasons of political persecution or in violation of generally recognised human rights and freedoms are to be considered void .

Section CARDINAL(CARDINAL ) provides that the former employer or its successor shall issue , at the request of the person concerned , a certificate that the latter ’s contract of employment was terminated for reasons mentioned in Section CARDINAL(CARDINAL ) . Paragraph CARDINAL of LAW entitles the person concerned to claim the determination of this issue by a court when the certificate is not delivered within DATE .

Under LAW ) , when the termination of employment is considered void within the meaning of LAW , the period between the termination of the contract of employment and the date when the person concerned acquired a right to old - age pension or invalidity pension is to be considered as the period of employment for the determination of that person ’s pension rights .

Section CARDINAL(CARDINAL ) provides that , when adjusting the pensions of persons covered by LAW ) , their average DATE salary is to be determined on the basis of their actual salary in DATE the termination of their employment . The general wages increase must thereby be taken into account .

Pursuant to LAW , pensions which were granted prior to the entry into force of LAW are to be adjusted in accordance with LAW upon the request of the person concerned .

Section CARDINAL(CARDINAL ) guarantees the right to legal assistance and entitles everybody to ask for it any advocate . Under paragraph CARDINAL of LAW advocates may refuse legal assistance to a person only where there are serious grounds to believe that he or she can not do so in an appropriate manner . Advocates must give reasons for such a refusal and ORG is entitled to determine whether it was justified . Paragraph CARDINAL of LAW provides that persons who were refused legal assistance can ask ORG to assign an advocate to them .

NORP In its decision No . CARDINAL of CARDINAL DATE the governing body ( predsedníctvo ) of ORG held that advocates are authorised to provide legal assistance free of charge or at reduced fees where the average DATE income of the person concerned does not exceed the statutory minimum wage and provided that such a person does not own property other than that which is indispensable for meeting the needs of everyday life . Advocates are also authorised to provide legal assistance free of charge or for reduced fees where it is justified by exceptional circumstances enumerated in the decision .

The representatives of ORG have expressed the view that even in cases where ORG appoints an advocate to represent a person it is not entitled to order that the advocate should do so free of charge . It is up to advocates to decide whether they will provide a person with legal assistance free of charge of for reduced fees . In this respect advocates shall guide themselves by decision No . CARDINAL delivered by the governing body of ORG .

In accordance with academic opinion , courts are obliged to appoint a representative to a party under LAW where ( i ) the party concerned filed a request to this effect , ( ii ) that party meets the requirements for waiver of court fees laid down in LAW ( it is thereby irrelevant whether or not the proceedings in question are exempted from court fees ) and ( iii ) it is objectively justified by the need of a better protection of the interests of such a party having regard , in particular , to his or her situation and the subject - matter of the proceedings . A measure under LAW should take the form of a decision ( uznesenie ) which can be challenged by means of an appeal ( see , e.g. , ORG právo s vysvetlivkami , CARDINAL . zväzok , ORG , DATE , p. CARDINAL and also Občiansky súdny poriadok , JUDr . PERSON , CSc . a kol . , NORP diel , ORG , GPE , p. CARDINAL ) .


The applicant is a NORP national , born in DATE and living in FAC . He is represented before the ORG by Mr Jan Södergren , a lawyer practising in GPE .

A.

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

The applicant is the sole shareholder of a NORP limited liability company , ORG . The company is licensed to trade in certain specified military equipment . By Government decision of CARDINAL DATE , the company was granted a licence , valid until DATE , to trade in , inter alia , salvage vehicles and amphibious crafts .

It appears that the company bought some military equipment , including armoured vehicles , in GPE which were not covered by the above licence . Subsequently , after that purchase , the company requested that the licence be extended to cover , inter alia , armoured vehicles .

On DATE the company 's request for an extended licence was rejected by ORG ( ORG för strategiska produkter ; hereinafter “ the ORG ” ) . The ORG stated that licences are given on a very restrictive basis and that it did not find any reason to extend the company 's existing licence . On DATE the ORG rejected , with the same reasons , a renewed application from the company . No appeal lay against the ORG 's decisions .

B. Relevant domestic law

LAW , LAW , sub - section CARDINAL of ORG ( regerings - formen ) provides that restrictions may be introduced in the right to trade or practise a profession only in order to protect significant public interests and never solely in order to further the financial interests of particular persons or firms .

The DATE LAW ( lagen om krigsmateriel ; hereinafter “ DATE LAW ) regulates activities which involve , inter alia , the manufacture , supply and export of military equipment . Thus , the LAW covers weapons , ammunition and other equipment designed for military use , which constitute military equipment according to regulations issued by the ORG . Such regulations are found in an annex to the DATE Military Equipment Ordinance ( förordningen om krigsmateriel ) .

According to the DATE Act , there is a general prohibition against the manufacture , supply and export of military equipment ( Sections CARDINAL–CARDINAL ) . A special permit or licence is required if an exception to the general rule is to be made . DATE , the ORG decided , directly , in all matters concerning , inter alia , the supply of military equipment . Matters of routine character were determined by the responsible minister . As from DATE , the ORG is the NORP authority that examines applications for permits under LAW . However , in cases where the ORG deems a matter under LAW to be of principle significance or otherwise of special importance , the matter shall be referred to the Government for consideration ( LAW ) .

Permits under LAW to manufacture , supply and export military equipment may be granted only if supported by security or defence policy reasons and provided that such permits are not in conflict with NORP foreign policy ( LAW ) . In the travaux préparatoires to LAW ( cf . Government PERSON No . CARDINAL ) , directives were given on how to apply this rule . The ORG 's earlier decisions in similar matters would serve as guidance in the examination of other , future cases and thus be taken into account by the ORG in its application of the LAW . According to the principles thus emanating from the ORG 's earlier practice , a permit should be granted only if this was necessary for a supply of military equipment and the need for know - how in this area . A further requirement was that the granting of a permit must not be contrary to NORP foreign policy goals and to the principles on which that policy is based .

A permit granted under LAW may , as a main rule , be cancelled at any point in time if the permit holder has disregarded a regulation contained in the LAW , or a regulation , requirement or provision issued LAW or if there are other special reasons for such a cancellation ( LAW ) .

An appeal against a decision by the ORG to cancel a permit in accordance with LAW of the DATE LAW or to determine a fee under its LAW may be brought before the administrative courts . An appeal may not be lodged against any other decision by the ORG under LAW ) .

If the ORG has referred a matter to the Government for consideration in accordance with LAW , an application for judicial review may be lodged with ORG ( Regeringsrätten ) in accordance with LAW ( lagen om rättsprövning av vissa förvaltningsbeslut ) . This is , however , only the case if the Government have decided to cancel a permit to manufacture or to supply military equipment in accordance with LAW .

The issue of appeal was discussed in connection with the establishment of the ORG ( cf . Government PERSON No . DATE ) . Considerations pertaining to national defence , security and foreign policy were the only considerations that were deemed relevant and which were to be decisive for the outcome of a permit matter under LAW . Private interests , such as an applicant company 's interest in disposing of its products on the military equipment market , were to be afforded no relevance . The fact that the authority determining a permit matter should not include such interests in its assessment also motivated that it should not be possible to pursue such interests on appeal or in an application for judicial review . The situation was , however , deemed to be different when the cancellation of a permit was at stake . The starting - point here was that the permit holder was entitled to keep the permit . Considerations pertaining to the legal rights of the individual or the individual company in question were deemed to be of more relevance in this context . It was , however , also stressed that the courts could not be expected to make assessments that were of a pronounced political nature ( ibid . , pp . CARDINAL–CARDINAL ) .


No violation of Art. 6-1 and 6-3-d;No violation of Art. 10

Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

The applicant was born in DATE and lives in GPE .

He is a journalist by profession and on DATE he published in the NORP DATE newspaper ORG an article about Mr PERSON Caselli , who was at that time ORG in GPE . The article was entitled “ PERSON , the judge with the white quiff ” and subtitled “ NORP schooling , communist militancy like his friend PERSON Are the charges against ORG the start of a new PERSON case ? ” .

In the article the applicant , after referring to the proceedings brought by PERSON against PERSON , a very well - known NORP statesman accused of aiding and abetting the ORG ( appoggio esterno alla mafia ) who has in the meantime been acquitted at first instance , expressed himself as follows :

“ In DATE PERSON has told an NORP newspaper that he fears he is to be eliminated .

If I may be permitted to begin with a digression , I wonder why he was talking to a foreign paper rather than the NORP press . He ’s not the only one . It ’s getting to be an epidemic . During the same period the industrialist PERSON chose an NORP newspaper in which to say that GPE is his LOC . Even PERSON , when he feels like uttering threats or complaints , generally does so via the NORP papers . This might be a form of gratuitous snobbery . But it might also be a victimisation syndrome of the type ‘ We ’re foreigners in our own country and are obliged to raise our voices abroad in order to make ourselves heard at home.’

That ’s what ORG is suggesting when he adds that he feels like an exile and the victim of a plot , but he does n’t exactly know what kind of plot . Those who have seen him recently say that he ’s pale , his pointed ears are drooping and he ’s bent forward to the point of being hunchbacked . He ’s worried about his wife PERSON , who ’s been plunged in a kind of cataleptic trance since that DATE . That was DATE when the official notification that he was under investigation – a document running to CARDINAL typewritten pages – turned the most well known NORP politician into the number CARDINAL godfather of ORG . Now ORG is bewildered . He tries to understand but he ca n’t . He thinks there must have been some sort of spur - of - the - moment conspiracy .

But the antibody that ’s eating away at him has been there for some time . It ’s been cultured for DATE in precisely those religious environments that ORG likes best . While he was already dominating GPE in DATE PERSON , ORG in GPE , author of the CARDINAL pages which have annihilated him , was learning his lessons at the school of the PERSON brothers in GPE .

PERSON was a fine , studious boy . GPE is full of people like that because it ’s a rainy city and the houses have no balconies to watch the street from , so there ’s nothing else for a boy to do but get his head down over his books . That ’s why the place specialises in the mass - production of intellectuals . From ORG to GPE , the Minister of Justice . It ’s a puritan brotherhood .

The more PERSON progressed towards self - knowledge the heavier his complex about his father weighed on him . The father was a very worthy man but only the chauffeur of a captain of industry . While driving he breathed in the air of the bourgeoisie and then he blew it out again over his son . The boy decided that when he grew up he would pass over to the other side of the fence . No longer subservient like dad , but keeping the upper hand .

At university , he drew close to the ORG [ ORG ] , the party which exalts the frustrated . When he was admitted to the ORG legal service he swore a threefold oath of obedience DATE to God , to the PERSON and to via PERSON [ formerly the headquarters of the ORG , now those of the PDS – ORG of the Left ] . And PERSON became the judge he has remained for DATE pious , stern and partisan .

But he can not really be understood without a mention here of his alter ego PERSON , PERSON ’s twin brother . Both from GPE ; DATE ; both raised by the NORP teaching orders ; both NORP militants ; both judicial officers ; and a deep understanding between them : when PERSON , the head , calls , PERSON , the arm , responds .

PERSON has always been CARDINAL step ahead of PERSON . In DATE he indicted for an attempted coup PERSON , a former member of the Resistance , but also an anti - communist . It was a typical political trial which led nowhere . Instead of facing a judicial inquiry , PERSON found that his career began to take off . In DATE he was elected as a NORP MP . And ever since then he has been the via PERSON shadow Minister of ORG . DATE he ’s the chairman of ORG ’s anti - Mafia committee , the great choreographer of the to - ing and fro - ing of the pentiti [ criminals - turned - informers ] and the ORG strongman .

While PERSON was climbing the ladder , PERSON had turned into a handsome figure with the shock of prematurely white hair he ’s so proud of . If he goes away anywhere , even on a short trip , he always takes his hairdryer with him . During breaks in proceedings he pats his quiff into place on his forehead and pushes his hair over his ears . Afterwards , as you will have noticed on TV , he moves his head the bare minimum , so as not to ruin his handiwork .

Vain – he ’s vain . When PERSON was a member of ORG , from DATE , his colleagues used to make fun of him , saying ‘ Under his hair there ’s nothing there’ . That ’s true up to a point , as a comment on his narcissism and his ideological blinkers . But it ’s not true as regards his intelligence , which can not be faulted . So far , as can be seen , there ’s nothing to suggest that DATE PERSON ’s and ORG ’s paths would cross .

Apart from his spell at ORG , PERSON continued to live in GPE . He was a judge in the public eye and in the first line of the battle against terrorism . It was he who obtained the confession of PERSON , whose evidence as a witness for the prosecution devastated ORG .

In the meantime , the ORG set in motion its strategy for gaining control of the public ORG offices of every city in GPE . That campaign is still going on , as the ORG has picked up the baton . The whole thing was the product of CARDINAL linked but very very simple ideas PERSON had . The first idea was that if the NORP could not manage to gain power through the ballot box , they could do so through the courts . There was no shortage of material . The NORP and the NORP were nothing but thieves and it would be easy to catch them out . The second idea was more brilliant than the first : the opening of a judicial investigation was sufficient to shatter people ’s careers ; there was no need to go to the trouble of a trial , it was enough to put someone in the pillory . And to do that it was necessary to control the entire network of public ORG offices .

And that was the start of GPE . The FAC , GPE and others were immediately caught with their hands in the till and destroyed . But ORG was needed to complete the picture . More cunning than the rest , or not so greedy , the sly old NORP nearly always avoided getting caught up in corruption cases .

It was at that precise moment that PERSON was getting ready to leave the rain of GPE for the sun of GPE . A campaign of unsubstantiated allegations saw off the incumbent public prosecutor PERSON , who crept away with his tail between his legs . And at DATE the handsome judge was able to take ORG ’s place and finally place ORG seal on the GPE prosecution service .

Before he took up his new post PERSON was summoned to the PERSON [ the President ’s official residence ] . President PERSON , knowing the type , was concerned . When he had PERSON in front of him he said : ‘ Do whatever you think is right , but be objective.’

Once in GPE his fate and ORG ’s , which had remained separate for DATE , became intertwined . DATE the senator - for - life was suddenly accused of belonging to the ORG . The file was an implausible rag - bag containing statements by pentiti , old and new documents and information given by the same old Buscetta [ a pentito ] to PERSON and the anti - Mafia committee , now used by PERSON as evidence in a kind of game of ping - pong between the CARDINAL twins . To cut a long story short , even the most long - lived brontosaurus in the ORG [ i.e. PERSON – the ORG ] was destroyed , thanks to the principle that an accusation is sufficient to destroy anyone .

In DATE PERSON flew off to GPE , where he met PERSON . He offered the informer MONEY DATE to continue to cooperate . PERSON could still be useful to him during the investigation , even if the outcome was no longer of much importance . The result sought had already been achieved .

What will happen next is already predictable . In CARDINAL to CARDINAL months’ time the investigation will be closed . But ORG will not be able to resurrect his political career . What a stroke of luck . PERSON , on the other hand , will be portrayed as an objective judge whose duty obliged him to prosecute but who realised he had been in the wrong . He will become a hero . And that , if there is a God , cries out for vengeance . ”

On DATE , acting on a complaint by PERSON , the judge responsible for preliminary investigations committed the applicant and the manager of ORG for trial in the Monza ORG . The applicant was accused of defamation through the medium of the press ( diffamazione a mezzo stampa ) , aggravated by the fact that the offence had been committed to the detriment of a civil servant in the performance of his official duties .

At the trial on DATE the civil party asked for the report on the evidence given by PERSON to the GPE judicial authorities and a copy of the NORP DATE newspaper ORG which that evidence had been published to be added to the file .

The defence asked for CARDINAL press articles concerning PERSON professional relations with the pentito PERSON to be added to the file and for the complainant to be required to give evidence . In an order made on DATE ORG refused these requests on the grounds that the documents in question were not relevant to the object of the proceedings ( defamation ) and that there was no point taking evidence from PERSON in view of the tenor of the article written by the applicant .

On DATE , applying LAW , LAW and CARDINAL and LAW of LAW and LAW no . CARDINAL of CARDINAL DATE ) , ORG sentenced the manager of ORG and the applicant to fines of CARDINAL and MONEY ( ITL ) respectively , payment of damages and costs in the sum of ITL CARDINAL , payment of the civil party ’s costs and publication of the judgment in ORG . In its reasoning ORG included the following considerations :

The author of this article , taking as his theme the case against Senator PERSON , gave a biography of the complainant in terms which emphasised his cultural background and above all his ideological leanings – allegedly close to the ORG ( now the PDS ) DATE contending that these leanings had decisively influenced [ the complainant ’s ] professional activity to the extent of making him the instrument of a grand design of that party , namely to take control of the judicial organs , particularly the public ORG offices .

Mr ORG stressed the long - standing friendship between the complainant and the MP PERSON , asserting that the latter acted as the head in a strategy where PERSON was the arm . He added to his summary biography phrases with a particularly striking literal meaning such as : ‘ When he was admitted to ORG he swore a threefold oath of obedience – to God , to the PERSON and to via PERSON . And PERSON became the judge he has remained for DATE – pious , stern and partisan.’

He accused PERSON of having managed ‘ the NORP investigation’ in furtherance of a grand political design hatched by PERSON on behalf of the ORG / PDS , which was to break up by judicial process the dominant political class at the time , so that the favoured party could take power by non - electoral means .

He suggested that the charges against Mr Andreotti , the last politician of any standing not to have been laid low by the ‘ clean hands’ [ mani pulite ] inquiries in progress , should be seen in the context of that exploitation of the investigation .

The defamatory nature of the article ... is absolutely manifest , given that the text categorically excluded the possibility that PERSON might be faithful to the deontological obligations of his duties as an officer in the ORG legal service and denied that he possessed the qualities of impartiality , independence , objectivity and probity which characterise the exercise of judicial functions , an activity which the complainant was even alleged to have used for political ends , according to the author of the article .

In the present case exercise of the right to report current events can not be pleaded as an extenuating circumstance , Mr ORG not having adduced the slightest evidence in support of his very serious allegations . Nor can he rely on exercise of the right to comment on them – a right which would certainly be enjoyed by a journalist who , in reporting court proceedings , criticises this or that measure DATE given that the offending assertions in the article amount to nothing more than an unjustified attack on the complainant , which foully besmirched his honour and reputation . ... ”

The applicant appealed . Relying on the freedom of the press , and in particular the right to report and comment on current events , he contended , among other arguments , that what he had written about Mr Caselli ’s political leanings was true and that the court could have verified that by agreeing to take evidence from the complainant himself ; that ORG were indeed friends ; and that it was likewise true that PERSON had used the help of the pentito Buscetta in the proceedings against ORG , and , as the representative of the ORG , had paid him sums of money , all pentiti being remunerated by ORG . Describing himself in addition as an opinion columnist ( opinionista ) , he asserted that he had not intended to give a biography of PERSON but rather to express his critical opinions , in a figurative and forceful way . More precisely , he had made critical judgments , which were admittedly more or less well founded and with which readers might or might not agree , but which were explicitly derived from the factual premise , namely ORG ’s political activity . Lastly , he demanded that evidence be taken from the complainant and from certain journalists and figures in NORP politics who , like PERSON , had been ORG militants . In particular , he asked for evidence to be taken from Mr PERSON and PERSON and for press articles on interviews in which the QUANTITY men had confirmed the complainant ’s active political militancy to be added to the file . In particular , in an interview published in the DATE newspaper ORG on DATE , extracts from which were quoted in the applicant ’s appeal , PERSON had stated , inter alia , that the complainant was a brave man of great integrity but that he was influenced by the cultural and political model of communism , that his relations with the former ORG had been very close and that he had later all but joined the party . In an interview given to another DATE newspaper , ORG , which published it on DATE , Mr PERSON had asserted that he had taken part in CARDINAL of political meetings with ORG among others during DATE in the GPE federation of the former ORG . He had gone on to say that although ORG , a man of integrity , had done good work against terrorism as an officer of the ORG legal service , he was heavily politicised and should therefore avoid speaking like a tribune of the people .

In a judgment of DATE ORG dismissed the applicant ’s appeal , ruling as follows :

“ ... the statements noted in the charges ... are undeniably seriously damaging to the reputation of the injured party . They go further than casting doubt – as the charges say DATE on PERSON loyalty to the country ’s institutions , his faithfulness to the principle of legality , his objectivity and his independence ; they categorically deny that he possesses those qualities and even attribute to him , among other accusations , instances of conduct which constitute disciplinary and criminal offences . ”

ORG held that it was evident that the article essentially referred to facts , some of which were not in the least defamatory and were therefore not relevant to the decision to be taken .

“ In particular , the following elements are undeniably facts ( not judgments ) , and CARDINAL of the appeal pleadings ( from lawyer PERSON ) refers to them as such :

( i ) PERSON political leanings ;

( ii ) the friendship between Mr PERSON and MP PERSON ;

( iii ) the information that as public prosecutor in GPE Mr Caselli used the statements of the criminal - turned - informer Buscetta in the investigation concerning Mr Andreotti , and the information that the same Buscetta , like other pentiti , is paid by the ORG .

Those elements are facts and in itself merely stating them is not in the least defamatory ; they are therefore not relevant to the decision this ORG has to take . That seems quite obvious as regards the last CARDINAL pieces of information above , but is also true of the first ( PERSON political leanings ) , since the ORG guarantees not only freedom of thought and the freedom to express thoughts but also the freedom of association in political parties .

It is therefore not relevant to try to ascertain what political beliefs PERSON holds and whether or not he expressed them in specific circumstances ( and at all events outside the judicial sphere and the performance of his duties ) since that information could not in any case be considered defamatory in itself ...

There is therefore no basis for the request that the proceedings be reopened , firstly so that PERSON can be heard as a witness , and secondly to obtain the production of the press articles of PERSON and PERSON , but also so that witness evidence can be taken from them , once again on the subject of [ PERSON ’s ] political militancy or at any rate of [ his ] ... political participation in the ORG / PDS . First of all , that information , as has already been said , is barely touched upon in the article , and in the second place it can not in any event be regarded as damaging to the complainant ’s reputation and accordingly does not need to be verified . ”

Other facts imputed to the complainant were , on the contrary , undeniably defamatory . First of all , there was the oath of obedience , which , beyond its symbolic import , bore the precise accusation that PERSON had given a personal and lasting undertaking to “ obey ” , in the course of his duties , the law , his religious beliefs and “ the instructions of the leaders ” of a political party .

ORG continued :

“ The remainder of the article , which gives a highly defamatory account of Mr ORG ’s alleged obedience to ORG , confirms that the journalist was not expressing judgments or personal opinions but imputing specific conduct to PERSON .

Further on the article asserts

( i ) that PERSON is PERSON twin brother , ...

( ii ) that the ORG ... set in motion a strategy of seizing control of all the public ORG offices in GPE by applying CARDINAL of the MP ’s ideas , the first being to gain power ... by using the judicial machine and the second to resort simply to opening a judicial investigation ... in order to destroy the careers [ of political opponents ] since there was no need to go to the trouble of a trial , it was enough to put someone in the pillory .

It is in that context that the journalist referred to CARDINAL actions by PERSON : his request for a transfer to the GPE public prosecutor ’s office and subsequent appointment to the post of public prosecutor there and his notification to Mr Andreotti that he faced prosecution for belonging to a ORG - type organisation .

The journalist ORG did not therefore express opinions or judgments but attributed to the complainant PERSON in a highly defamatory manner conduct and acts about which – and here we can only repeat what ORG said DATE he did not adduce a scrap of evidence ; he did not even seek to prove his case , as his lawyers argue that he was merely expressing opinions .

... The journalist [ having ] attributed specific acts to public prosecutor PERSON without verifying his assertions in any way and in a totally gratuitous manner , his conduct can not be explained by errors or misunderstandings , but only as a deliberate act .

That is confirmed by the literal content of the whole article , in which the person of PERSON is constantly and subtly denigrated , even though a few positive remarks are skilfully mixed in with the attacks . ...

The content of the whole article shows that there was no unintentional fault on the defendant ’s part but that he was fully aware that he was damaging another ’s reputation and even that he intended to do so . ”

In a judgment of CARDINAL DATE , deposited with the registry on DATE , ORG upheld ORG judgment , ruling that it was quite correct both as regards the merits and from the procedural point of view .

Contrary to what has been alleged , the requests for leave to adduce evidence filed by the defence were interpreted in accordance with their exact significance and probative value and were rightly refused because they were totally devoid of relevance to the decision .

The appeal written and signed jointly by the defendant ORG and his lawyer Mr ORG contains a request for the proceedings to be reopened , with a view , firstly , to ‘ taking witness evidence from the civil party’ , in particular ‘ about the forms and modalities of his militancy , or at least of his political participation in the activities of the ORG / PDS during the period when he was already a public prosecutor , and about all the other points which offended the complainant’ . The absolutely vague and irrelevant nature of the request is manifest in the light of the tenor of the phrases used by PERSON ( in whose article the allusion to Mr PERSON ’s militancy is by no means limited , as Mr PERSON argued in the grounds of appeal , to the assertion that Mr PERSON associated himself with ORG while he was at university , an assertion which would , incidentally , not constitute an insult ) ; the article set out to give a detailed account of the forms taken by that militancy by imputing certain acts to PERSON with the aim of proving that his militancy existed . Consequently , either this point remains vague or the problem is resolved by trying to make the complainant admit the facts noted in the charges , with the result that the burden of proof is shifted away from [ Mr ORG and Mr GPE ] . ...

Moreover , the ‘ direct witnesses’ , PERSON and PERSON , are mentioned in connection with the above point [ the forms taken by the complainant ’s militancy ] ; what has just been said about the vagueness and irrelevance of that point therefore applies equally to those persons . Furthermore , giving further details about facts of which they had direct knowledge would have had no bearing on the trial since these were assertions which the trial court did not consider offensive and to speak of this as exculpatory evidence is accordingly meaningless .

Lastly , Mr PERSON ’s militancy within the ORG has nothing to do with the specific facts attributed to him , and therefore with his alleged oath of obedience to via PERSON ( to which , however , this ground of appeal makes no allusion ) , with the relations between PERSON and PERSON and above all with an alleged link with PERSON .

Apart from the procedural aspect of the question , it should be stated at the outset that even the argument that the content of the article was not objectively offensive is absolutely devoid of foundation , as the judgment given by the trial court was justified in every respect as regards the offensive nature , for a man even more than for an officer of the ORG legal service , of imputations of specific facts implying a lack of personality , dignity , independent thought , coherence and moral honesty , and conduct signifying explicitly that there have been instances of dereliction of professional duty . ...

The trial court ’s reasoning on the extenuating circumstances of the right to report current events and the right to comment on them is also correct , as evidenced by an appropriate statement of the reasons which was free of mistakes in law and errors of logic .

No link can be established , and moreover no link was established by ORG , between the personality [ of PERSON ] and an alleged right to report current events exercised through the offensive imputation of facts which have not been proved to be true and play no informative role .

The essential point in the judgment is its categorical exclusion of the idea that the article expressed a critical judgment , hence the rejection of the plea that the right to freedom of expression constituted an extenuating circumstance . And in fact it is precisely by virtue of this comparative parameter and of its accessory powers of cognition that this court must repeat that the reasons given [ by ORG ] are immune to criticism : the article is quite clearly a bare list of acts and conduct imputed to PERSON in which there can not be seen , even in veiled form , the slightest contribution to thought which might be regarded as a critical judgment , or even the attempt at irony which is said to be hidden in the elusive ‘ caustic ORG referred to in the grounds of appeal . As ORG concluded , this case was not about respect for the limits of formal propriety .

It follows from all of the foregoing considerations that , as it is impossible to speak of critical comment , there is no cause to expatiate about exercise of the right to comment , still less about the extenuating circumstance of gross negligence in the exercise of the right to comment or about the hypothetical exercise of that right .


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

Elisabeth Palm;Feyyaz Gölcüklü;Gaukur Jörundsson

On DATE police officers from ORG arrested the applicant on suspicion of membership of an illegal armed organisation , the Dev - Yol ( NORP Way ) .

On DATE ORG ( sıkıyönetim mahkemesi ) ordered the applicant ’s detention on remand .

On an unspecified date in DATE ORG filed a bill of indictment with ORG against the applicant . ORG accused the applicant , inter alia , of membership of the Dev - Yol , whose object was to undermine the constitutional order and replace it with a NORP - Leninist regime . The prosecution sought the death penalty under LAW of LAW . It was further decided that this indictment should be joined to the indictment of CARDINAL DATE lodged against CARDINAL other ORG - PERSON defendants .

On DATE ORG ordered the applicant ’s release pending trial .

In a judgment of DATE ORG convicted the applicant on account of his involvement in the LAW . It sentenced the applicant to CARDINAL years’ imprisonment under LAW of LAW .

The applicant appealed to ORG ( askeri yargıtay ) .

Following promulgation of the PERSON of DATE , which abolished the jurisdiction of ORG , ORG ( yargıtay ) acquired jurisdiction over the case and on DATE the case file was transmitted to it .

On DATE ORG upheld the above judgment .

Article CARDINAL § § CARDINAL and CARDINAL of LAW provides :

“ Whosoever shall attempt to alter or amend in whole or in part LAW or to effect a coup ORG formed under LAW or to prevent it by force from carrying out its functions shall be liable to the death penalty .

Accomplices to the crime specified in paragraph one , other than those specified in paragraph CARDINAL , shall be punished by heavy imprisonment for not less that DATE and be disqualified to hold public office for life . ”


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

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

Until DATE the applicant and his family lived in the NORP village , a hamlet of the GPE village in the district of GPE in GPE , where he owned property . The applicant submitted documentary evidence , proving his ownership of the property which bears the stamp of the relevant municipality of DATE . He submitted another document proving ownership of properties belonging to his father , bearing the stamp of the relevant municipality of DATE .

In DATE security forces forcibly evacuated the NORP village on account of disturbances in the region . They also destroyed the applicant ’s property . The applicant and his family then moved to ORG where they currently live .

In DATE the applicant filed petitions with the offices of the public prosecutor in GPE , ORG and GPE , requesting redress for the damage he had suffered and sought permission to return to his village . However , he did not receive any response from these authorities .

On unspecified dates , he filed petitions with ORG and ORG requesting permission to return to his village and compensation for the damage he suffered .

On DATE he lodged petitions with the offices of the District Governor , the Presidency of ORG , the Prime Minister ’s office and the President ’s office in order to be provided with government aid . He further asked the authorities to permit him to return to his village .

On DATE , the applicant filed a petition with ORG NORP Governor regarding the alleged forced evacuation .

On DATE ORG NORP Governor replied to the applicant ’s petition , stating that the applicant ’s request would be considered under the scope of the “ Return to GPE and that he would be informed of the developments .

On DATE the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by ORG and entered into force on DATE ( “ Compensation Law ” ) . That PERSON provided for a sufficient remedy capable of redressing the LAW grievances of persons who were denied access to their possessions in their villages .

In that connection , Damage Assessment and Compensation Commissions were set up in QUANTITY provinces . Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation .

The Government further maintained that there are already CARDINAL of applications lodged before these ORG seeking compensation and that any villagers had already been awarded compensation for the damage they had sustained .

A description of the relevant domestic law can be found in the ORG ’s decision of PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and in its judgment of ORG and Others v. GPE ( nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL - CARDINAL/CARDINAL , § § DATE , ECHR CARDINAL ... ) .


No violation of Art. 3;No violation of Art. 8;Failure to comply with obligations under Art. 34;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

Giovanni Bonello;Javier Borrego Borrego;Jean-Paul Costa;Josep Casadevall;Lech Garlicki;Nicolas Bratza;Stanislav Pavlovschi

The applicant was born in DATE in GPE , where he currently lives .

The applicant arrived in GPE with his parents in DATE . He has CARDINAL brothers and sisters , all of whom were born in GPE and have NORP nationality .

On DATE he was convicted of burglary and handling stolen goods by ORG . He was given an DATE suspended prison sentence and was ordered to pay a fine of MONEY ( FRF ) .

On DATE he was sentenced by the PERSON tribunal de grande instance to DATE imprisonment for burglary . The court also activated the suspended sentence he had been given previously . On DATE ORG upheld the activation of the suspended sentence , which was the only point on which the applicant had appealed .

On DATE the ORG tribunal de grande instance sentenced the applicant to DATE imprisonment and ordered his permanent exclusion from NORP territory for offences under the legislation on dangerous drugs .

On DATE the applicant married a NORP national . The marriage was dissolved on DATE . He has CARDINAL daughter , who was born in DATE .

On DATE ORG raised the sentence to DATE imprisonment and upheld the permanent exclusion order for offences under the legislation on dangerous drugs . It noted in particular that the applicant had been arrested on his arrival at the home of a drug - addicted prostitute and had been in possession of a small bag containing QUANTITY of heroin , which the police laboratory described as being “ of good quality ” . The court moreover considered that the applicant could not have been unaware that he had been acting as intermediary between a supplier and his principal client and accordingly that he had possessed , transported and dealt in heroin . It concluded that his role in such deals had been confirmed by the discovery at his home of precision scales and lactose .

ORG further found that , at the material time , the applicant had been on day release from prison and that he had preferred to act as intermediary between a drug supplier and his clients rather than doing a job that he had abandoned for DATE . It held that “ the conduct of this foreign national , who present[ed ] a risk to public safety and health , [ was ] incompatible with his continued presence in GPE ” .

On DATE ORG declared that his right to appeal on points of law was forfeit .

On DATE ORG tried CARDINAL individuals on drugs offences .

It noted that during a search of the applicant 's home investigators had found CARDINAL small transparent plastic bags containing traces of white powder , a book of matches on which a number of accounts were noted , CARDINAL syringes and a spoon with a blackened underside , CARDINAL forged identity cards and a forged driving licence . On the basis of various statements , including that of the applicant 's wife , and the results of telephone tapping and shadowing , the court concluded that the applicant had played a key role as a supplier in the drug trafficking .

The court ordered the applicant to serve prison sentences of DATE for the drugs offence , DATE for forgery of administrative documents and DATE for residing in GPE in breach of an exclusion order .

In DATE the applicant was diagnosed as suffering from active chronic hepatitis .

In a judgment of DATE , ORG dismissed an application by the applicant for the lifting of the exclusion order . It noted that the applicant had had CARDINAL convictions DATE and DATE , with prison sentences ranging from DATE , and that the offences of which he had been convicted on DATE concerned heroin deliveries , including CARDINAL of QUANTITY of very high - quality heroin , and had been committed while he was on day release from prison . The court also found that the authenticity of the applicant 's marriage to a NORP national had not been confirmed by the slightest evidence , and that the order for his removal did not constitute a disproportionate interference with his rights under LAW .

On DATE the Minister of the ORG issued a deportation order in respect of the applicant . An appeal by the applicant to ORG was dismissed on DATE .

On DATE the applicant was released from prison and taken into administrative detention pending his removal from GPE .

On DATE the prefect ordered the applicant 's removal to GPE .

On DATE the applicant lodged an application with ORG seeking the annulment and stay of execution of that order , together with a request for its immediate suspension .

On DATE ORG dismissed the request for immediate suspension , finding that

“ it is not apparent from the evidence , and in particular from the medical certificate produced by [ the applicant ] , that his state of health entails a short - term imperative need for the treatment of hepatitis C with CARDINAL associated drugs that are not currently available in GPE ; accordingly , [ the applicant ] is not justified in seeking the suspension of execution of the decision taken by the prefect of the département of GPE ordering his removal to that country ” .

On DATE the applicant applied for asylum , which was denied on DATE by the OFPRA ( NORP authority for the protection of refugees and stateless persons ) on the ground that “ his application , which was not lodged in a timely manner , [ did ] not contain any established or individual elements to substantiate the merits of his fears of persecution by the current NORP authorities ” .

A doctor serving as a public - health inspector for the health and social services department for the département of GPE sent CARDINAL letters to the prefect of GPE region on CARDINAL and DATE . In the first of those letters the doctor stated , inter alia :

“ I observe that Mr PERSON has not produced any medical documents subsequent to DATE , that he has not asked to see a doctor since his arrival at the detention centre and that he is not currently undergoing any treatment . I am thus entitled to consider that his current state of health is of no immediate cause for concern .

The medical certificate mentions that Mr PERSON 's state of health may justify treatment involving a combination of interferon and ribavirin ; ...

I have contacted the laboratory ... which produces ribavirin . According to the information I received , ribavirin is not yet available on the NORP market . The drug may be imported with the authorisation of ORG further to a request by the central pharmacy of ORG . A procedure has been initiated with a view to exporting the molecule to GPE . ... ”

In his second letter the doctor indicated :

“ I refer to the second medical certificate that you sent to me , for my opinion , concerning the state of health of Mr PERSON , issued by ORG on DATE .

Supplementing the previous certificate that you brought to my attention , this second certificate confirms that Mr PERSON medical condition may be treated with a combination of interferon and ribavirin . The indications on the certificate concerning the availability of ribavirin in GPE do not correspond to those given to me verbally by the laboratory ...

I should point out that ribavirin is available in GPE under temporary authorisation ( ORG – autorisation PERSON ) for use in hospital pharmacies alone and that the marketing authorisation ( AMM – autorisation de mise sur le marché ) is to be issued shortly . ”

On DATE the applicant was put on a boat for GPE .

On DATE ORG set aside the prefect 's removal order of CARDINAL DATE , holding as follows :

“ It is apparent from the evidence and in particular from the medical certificate issued by the prison hospital and health - care service on DATE , as produced by the applicant , that he suffers from hepatitis C. His state of health is such that he requires imperative treatment with CARDINAL associated drugs , interferon and ribavirin , which were not available in GPE on the date of the impugned decision . Accordingly , having regard to the exceptionally serious consequences that the measure taken against him may entail , the decision by the prefect of the département of GPE whereby GPE was designated as the country to which Mr PERSON was to be removed in execution of the deportation order issued against him on DATE must be set aside . ”

That judgment was irrevocable .

On DATE the applicant 's lawyer indicated that his client had encountered difficulties in obtaining a passport . The lawyer enclosed with his letter an attestation to that effect issued on DATE by the chief of NORP district .

On DATE the applicant 's lawyer explained that his client could not return to GPE because the NORP authorities would not issue him with a passport and he could not obtain a laissez - passer from the NORP authorities . He added that , according to the information he had received through the applicant 's family , his health was continuing to decline and he had not been receiving the necessary medical treatment .

In a letter of CARDINAL DATE he provided the ORG with a copy of the visa refusal issued by ORG in GPE on DATE .

According to a medical certificate issued by an NORP doctor on DATE , the applicant is suffering from the following complaints :

“ ulcer - related condition , only treatable with omeprazole ,

erythematous gastropathy , intestinal functional disorder and chronic constipation ,

chronic viral hepatitis type C , for which interferon was prescribed in GPE DATE and which has not been treated or checked for DATE . ”

On DATE the President of the Third Section decided to indicate to the Government , pursuant to Rule CARDINAL of ORG , that it was desirable in the interests of the parties and the proper conduct of the proceedings before the ORG not to expel the applicant to GPE prior to the forthcoming meeting of the appropriate Chamber on DATE . Under Rule CARDINAL § CARDINAL ( a ) the Government were also requested to submit information , in particular concerning treatment available in GPE .

The competent authorities decided to stay the execution of the removal until DATE in order to obtain an expert medical opinion ( see paragraph CARDINAL above ) .

On DATE the applicant was removed to GPE .

On DATE the Government submitted answers to the questions put to them .

The applicant 's representative submitted his answers on DATE .

On DATE the ORG decided to request the ORG to submit their observations on the admissibility and merits of the application , and on the fact that the applicant had been expelled notwithstanding the application of Rule CARDINAL .

The Government submitted their observations on DATE and those of the applicant 's representative were submitted on DATE .

On DATE the ORG decided to adjourn its examination of the case pending the ORG judgment in PERSON and PERSON v. GPE ( [ ORG ] , ORG . CARDINAL and CARDINAL , ORG CARDINALI ) .

On DATE the ORG requested the parties to provide information about the applicant 's state of health , his administrative situation , and any action taken further to ORG judgment of DATE . They were also requested to address once again the possibility of a breach of LAW , in the light of the PERSON and PERSON judgment ( cited above ) , which had been delivered on DATE .

The parties submitted their observations on DATE .

Article L. CARDINAL - CARDINAL , sub - paragraph CARDINAL , of LAW , as worded at the material time , provided :

“ Without prejudice to the application of Articles CARDINAL et seq . of Ordinance no . ORG of DATE , the courts may make an order excluding an alien convicted of an offence under PERSON , PERSON , PERSON , PERSON or L. CARDINAL from NORP territory for DATE . They may make an order permanently excluding an alien convicted of an offence under LAW .

An exclusion order shall automatically entail removal of the convicted person at the end of his sentence . ... ”

Former Article L. CARDINAL of LAW provided :

“ Anyone who has contravened the provisions of the public - administration regulations laid down in the preceding Article concerning toxic plants or substances classified under the regulations as narcotics shall be liable on conviction to DATE imprisonment and a fine of between FRF CARDINAL,CARDINAL and ORG CARDINAL , or CARDINAL only of those penalties . The sentence for offences of importing , producing , manufacturing or unlawfully exporting the said substances or plants shall be between DATE imprisonment ...

Penalties for attempts to commit any of the offences referred to in the preceding paragraph shall be the same as for the completed offence . A like rule shall apply to criminal association or conspiracy to commit such offences . ...

The following persons also shall be liable to imprisonment of DATE and a fine of between FRF CARDINAL,CARDINAL and FRF CARDINAL,CARDINAL,CARDINAL , or to one only of those penalties :

( CARDINAL ) Anyone who has facilitated the use by another of the said substances or plants by procuring LOC or by any other means , and whether or not for consideration . ...

Where the person whose use of the said substances has been facilitated is a minor DATE ... the term of imprisonment shall be DATE . ... ”

As regards the question of compliance with LAW , see PERSON and PERSON , cited above , § § CARDINAL - CARDINAL .


Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in PERSON .

On DATE the applicant was injured in a car accident . The perpetrator of the accident had taken out insurance with the insurance company ZT .

On DATE the applicant instituted civil proceedings against ZT in ORG ( Okrožno sodišče v PERSON ) seeking damages in the amount of CARDINAL tolars ( MONEY ) for the injuries sustained .

DATE and DATE the applicant lodged CARDINAL preliminary written submissions and/or adduced evidence .

On DATE he also requested that a date be set for a hearing .

On DATE the presiding judge was appointed to ORG and the case was assigned to a new judge .

Of the CARDINAL hearings held DATE and DATE none was adjourned at the request of the applicant .

During the proceedings the court appointed CARDINAL medical experts .

At the last hearing the court decided to deliver a written judgment . The judgment , upholding the applicant ’s claim in part , was served on the applicant on DATE .

On DATE the applicant appealed to ORG ( PERSON v PERSON ) . ZT cross - appealed .

On DATE the court allowed the applicant ’s appeal in part and dismissed the ORG ’s appeal .

The judgment was served on the applicant on DATE .

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

The proceedings are still pending .


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

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

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

On DATE the applicant was placed in pre - trial detention in the course of criminal proceedings against him .

On DATE a bill of indictment was filed with ORG against QUANTITY persons including the applicant . After the bill of indictment had been filed , PERSON , the applicant 's commonlaw wife , was allowed to visit him in prison .

On DATE PERSON applied to be allowed to visit the applicant in prison . On DATE the court refused her request .

The trial began on DATE .

On DATE the applicant 's lawyer asked the court to allow the applicant to have prison visits from PERSON On DATE ORG refused the request and informed the applicant that at this stage of the proceedings he could not receive prison visits . The refusal was motivated by the need to secure the proper conduct of the proceedings . The proceedings concerned several co - accused and the process of gathering evidence had not been finished . Even though PERSON was not a witness in the proceedings it was not possible to allow her to visit the applicant , at least until the key witnesses in the proceedings had been heard .

On DATE the applicant 's lawyer complained to ORG and to the Ombudsman . He stressed that the applicant was being refused all prison visits and that ORG had not specified the duration of this prohibition .

On DATE , on the applicant 's appeal , ORG informed him that ORG was competent to decide on prison visits for the applicant .

PERSON 's further applications for permission to visit the applicant in prison of DATE , DATE , DATE and DATE were dismissed .

On DATE the ORG informed the applicant that the refusal of family visits in prison was due to the complicated nature of the proceedings and the fact that several co - accused were involved . It would further appear that as soon as all the witnesses in the proceedings had been heard , the applicant would be allowed prison visits .

At the hearing held on DATE the court allowed PERSON 's motion and agreed that she could visit the applicant in prison . The applicant states that she visited him on DATE .

Subsequently , PERSON was allowed to visit the applicant on numerous occasions .

On DATE ORG convicted the applicant as charged . On DATE the ORG quashed the firstinstance judgment and remitted the case .

The applicant was released on bail on DATE .

The proceedings are pending before the court of first - instance .

The relevant domestic law and practice concerning detainees ' right to receive visitors in remand centres are stated in the ORG 's judgment in the case of ORG v. GPE , no . CARDINAL , LAW , DATE .


Preliminary objection dismissed (Article 37-1 - Striking out applications);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property);Pecuniary and non-pecuniary damage - award

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

In DATE the applicant took part in the emergency operations at the site of the GPE nuclear plant disaster . As a result the applicant suffered from extensive exposure to radioactive emissions . In DATE and DATE the applicant underwent medical examinations which established the link between the applicant ’s poor health and his involvement in the GPE events . The applicant was awarded compensation , to be paid DATE .

In DATE the applicant brought proceedings against ORG of LOC of GPE ( PERSON социальной защиты населения Лиманского района PERSON области - “ the defendant ” ) for an increase in the compensation , for backdating the increase and recovering of the unpaid amount . The applicant considered that the amount of compensation had been determined incorrectly .

On DATE the ORG of the LOC established , upholding the applicant ’s claim , that the applicant was entitled to a DATE compensation of MONEY ( ORG ) . The court established that the debt accrued as a result of previous underpayment was ORG . It also awarded the applicant RUR CARDINAL as a penalty payment .

By a decision of DATE ORG , acting on appeal , upheld the judgment as to the amount of the DATE payment and the principal debt , but reversed the penalty award . The judgment entered into force and enforcement proceedings were instituted . Both parties lodged requests for supervisory review of the courts’ decisions .

On DATE ORG stayed the enforcement proceedings , pending the consideration of the defendant ’s request for supervisory review .

The defendant ’s request for supervisory review was refused by ORG of GPE on DATE .

On DATE the ORG of LOC resumed the enforcement proceedings .

By a decision of CARDINAL DATE the President of ORG refused the applicant ’s request for supervisory review .

On DATE the ORG of LOC granted a request by ORG ( ORG областной центр по начислению и выплате пенсий и пособий ) to suspend the enforcement proceedings . The enforcement was stayed until DATE to allow the authorities to “ decide how to finance the court awards involving the recalculation of compensation to the victims of the GPE catastrophe ” .

On DATE ORG of GPE refused the applicant ’s request for supervisory review of the suspension order .

On an unspecified date , following a request made by ORG , the President of ORG brought an extraordinary appeal against the judgments of DATE and DATE .

On DATE the ORG of ORG examined the appeal and quashed both the judgment of ORG of GPE dated DATE and the judgment of ORG dated DATE . The ORG decided that the subordinate courts had wrongly determined the amount of DATE compensation . In particular , they had based all the calculations on the applicant ’s salary as of DATE . The ORG held that the calculations should have been based on the applicant ’s average earnings over DATE prior to the date on which the medical examination had established his disability . The case was remitted to the same ORG for a fresh examination .

On DATE ORG of GPE , in response to the applicant ’s complaint , refused to conduct a supervisory review of the decision of DATE .

By a judgment of DATE the ORG of LOC , acting as a first instance court , awarded the applicant the DATE payment of ORG FAC and established that the debt accrued was RUR PERSON . No penalty was awarded .

On DATE the ORG acting as an appeal instance reversed the judgment of LOC of GPE of DATE . It pointed out that ORG had applied the calculation mode incorrectly and that the amounts due had to be recalculated . The case was remitted to the same ORG for a new decision .

On DATE the applicant filed a complaint with ORG concerning the length of proceedings . He complained in particular that no decision had been taken in his case since DATE .

NORP In reply dated DATE , the applicant was informed that on DATE , on his request , the proceedings had been stayed pending ORG decision in a similar case . He was informed that the proceedings had been resumed after ORG ruling of DATE , and that a hearing had been fixed for DATE . He was also informed that the hearings had not been fixed until DATE on the applicant ’s request due to his counsel ’s absence .

On DATE the ORG of GPE decided that the compensation payable to the applicant by the welfare authorities was ORG . The applicant was also awarded legal costs of ORG CARDINAL,CARDINAL and non - pecuniary damages of RUR CARDINAL,CARDINAL .

The applicant appealed against this decision . He challenged the principal amount , the amount of non - pecuniary damages and the refusal of the penalty .

By an appeal decision of DATE ORG reversed the first instance judgment and remitted the case for fresh examination by the same court .

On DATE the ORG of GPE awarded the applicant RUR CARDINAL,CARDINAL.CARDINAL of the principal debt , future DATE payments of RUR CARDINAL,CARDINAL.CARDINAL and the legal costs of RUR CARDINAL .

Both parties appealed against this judgment .

On DATE ORG upheld the first instance judgment .

On DATE the awarded sums were transferred to the applicant ’s bank account .

Section CARDINAL of LAW of DATE provides that a bailiff ’s order on the institution of enforcement proceedings must fix a time - limit for the defendant ’s voluntary compliance with a writ of execution . The time - limit may not exceed DATE . The bailiff must also warn the defendant that coercive action will follow , should the defendant fail to comply with the time - limit .

Under LAW of the LAW , the enforcement proceedings should be completed within DATE of the receipt of the writ of enforcement by the bailiff .

Under LAW of DATE , which was in force at the material time , judgments became final as follows :

“ Court judgments shall become legally binding on the expiration of the time - limit for lodging a cassation appeal if no such appeal has been lodged . If the judgment is not quashed following a cassation appeal , it shall become legally binding when the higher court delivers its decision ... ”

The only further means of recourse was the special supervisory - review procedure that enabled courts to reopen final judgments :

“ Final judgments , decisions and rulings of all NORP courts shall be amenable to supervisory review on an application lodged by the officials listed in LAW . ”

The power of officials to lodge an application ( protest ) depended on their rank and territorial jurisdiction :

“ Applications may be lodged by :

The Prosecutor General – against judgments , decisions and rulings of any court ;

The President of ORG – against rulings of the Presidium of ORG and judgments and decisions of ORG of ORG acting as a court of first instance ;

Deputy Prosecutors General DATE against judgments , decisions and rulings of any court other than rulings of the ORG of ORG ;

Vice - Presidents of ORG – against judgments and decisions of ORG of ORG acting as a court of first instance ;

ORG , Deputy Prosecutor General , the President and Vice - Presidents of ORG – against judgments , decisions and rulings of any court other than rulings of the Presidium of ORG ;

The President of ORG of an autonomous republic , regional court , city court , court of an autonomous region or court of an autonomous district , ORG of an autonomous republic , region , city , autonomous region or an autonomous district DATE against judgments and decisions of district ( city ) people ’s courts and against decisions of civil chambers of , respectively , ORG of an autonomous republic , regional court , city court , court of an autonomous region or court of an autonomous district that examined the case on appeal . ”

The power to lodge such applications was discretionary , that is to say it was solely for the official concerned to decide whether or not a particular case warranted supervisory review .

Under Article CARDINAL officials listed in LAW who considered that a case deserved closer examination could , in certain circumstances , obtain the case file in order to establish whether good grounds for lodging an application existed .

Article CARDINAL of the Code empowered the relevant officials to stay the execution of the judgment , decision or ruling in question until the supervisory review proceedings had been completed .

Courts hearing applications for supervisory review had extensive jurisdiction in respect of final judgments :

“ The court that examines an application for supervisory review may :

Uphold the judgment , decision or ruling and dismiss the application ;

Quash all or part of the judgment , decision or ruling and order a fresh examination of the case at first or cassation instance ;

Quash all or part of the judgment , decision or ruling and terminate the proceedings or leave the claim undecided ;

Uphold any of the previous judgments , decisions or rulings in the case ;

Quash or vary the judgment of the court of first or cassation instance or of a court that has carried out supervisory review and deliver a new judgment without remitting the case for re - examination if substantive laws have been erroneously construed and applied . ”

The grounds for setting aside final judgments were as follows :

wrongful application or interpretation of substantive laws ;

significant breach of procedural rules which led to delivery of unlawful judgment , decision or ruling ... ”

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 .


Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by Mr I. GPE , a lawyer practising in Vinkovci . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

Until DATE the applicant lived in GPE , GPE . Some time in DATE he went to GPE and in DATE he was called up by ORG . On DATE he returned to ORG .

On DATE an investigation was opened in respect of the applicant and CARDINAL other persons of NORP origin on suspicion of having taken part in the armed conflict against GPE in DATE . ORG ordered the applicant ’s detention . However , this order was not enforced .

In DATE the investigation was stayed because the majority of the defendants and witnesses lived in the occupied territories . The investigation was continued in DATE before ORG .

On DATE ORG revoked the applicant ’s detention order but ordered that the applicant ’s passport be withdrawn . On DATE the court terminated the investigation under LAW . However , on DATE the same court set aside its previous decision and decided to continue the investigation in respect of the applicant . On DATE the investigation gave reasons to belive that the applicant was guilty of a war crime against the civilian population and in particular for having participated in the attacks on the town of ORG .

On DATE the measure of withdrawing the applicant ’s passport was extended by a decision of the investigating judge of ORG . This decision is still in effect and the criminal investigation against the applicant is still pending .

The relevant part of LAW ( Ustav PERSON , ORG no . CARDINAL of DATE ) reads as follows :

“ In the determination of his rights and obligations or of any criminal charge against him , everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law . ”

“ Everyone lawfully within the territory of GPE shall have the right to liberty of movement and freedom to choose his residence .

Every citizen of GPE shall be free to leave the ORG ’s territory at any time ...

The right to free movement within the territory of GPE and the right to enter and exit that territory may be exceptionally restricted by law where it is necessary for the protection of the legal order or for the protection of health , rights and freedoms of others . ”

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

“ CARDINAL . Anyone may lodge a constitutional complaint with ORG if he or she deems that the individual act of a state body , a body of local and regional self - government , or a legal person with public authority , which has determined his or her rights and obligations , or a suspicion or accusation of a criminal act , has violated his or her human rights or fundamental freedoms or his or her right to local and regional self - government guaranteed by LAW ( hereinafter : constitutional right ) ...

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

“ ( CARDINAL ) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the applicant ’s rights and obligations or a criminal charge against him or her within a reasonable time ...

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

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

The relevant part of LAW ( Zakon o sudovima , ORG nos . CARDINAL and CARDINAL ) , which entered into force on DATE , reads as follows :

“ ( CARDINAL ) A party to court proceedings who considers that the competent court failed to decide within a reasonable time on his or her rights or obligations or a criminal charge against him or her , may lodge a request for the protection of the right to a hearing within a reasonable time with the court at the next level of jurisdiction .

( CARDINAL ) If the request concerns proceedings pending before ORG of GPE , ORG of GPE or ORG , the request shall be decided by ORG .

( CARDINAL ) The proceedings for deciding the request referred to in paragraph CARDINAL of this section shall be treated as urgent .

( CARDINAL ) If the court referred to in section CARDINAL of this LAW finds the request well - founded , it shall set a time - limit within which the court before which the proceedings are pending must decide on a right or obligation of , or a criminal charge against , the person who lodged the request , and shall award him or her appropriate compensation for the violation of his or her right to a hearing within a reasonable time .

( CARDINAL ) The compensation shall be paid out of the ORG budget within DATE from the date the party ’s request for payment is lodged .

( CARDINAL ) An appeal , to be lodged within DATE with ORG , lies against a decision on the request for the protection of the right to a hearing within a reasonable time . No appeal lies against ORG decision but a constitutional complaint may be lodged . ”

The Government submitted ORG decisions ORG . U - IIIA-CARDINAL/CARDINAL of CARDINAL DATE ; U - IIIA-CARDINAL/CARDINAL of CARDINAL DATE ; and ORG of DATE where ORG examined the length of the criminal proceedings against the defendants in those proceedings and took into account the duration of the entire proceedings , including the investigation .

The relevant part of LAW ( Zakon o kaznenom postupku , ORG nos . CARDINAL/CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL and CARDINAL ) provides as follows :

“ ( CARDINAL ) A person whose rights have been infringed in a decision adopted by an investigating judge ... may always lodge an appeal where this LAW has not expressly excluded the right to an appeal .