Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

The applicant is married and has CARDINAL children . Prior to his application for an earlyretirement pension he had been employed for DATE and had paid social security contributions to the ORG .

NORP In DATE the applicant filed an application with ORG ( ORG ) to be granted the right to an earlyretirement pension for persons raising children who , due to the seriousness of their health condition , required constant care , the socalled “ EWK ” pension .

Along with his application for a pension , the applicant submitted , among other documents concerning his son ’s health condition , a medical certificate issued by a specialist medical centre on DATE . The certificate stated that the child ( born in DATE ) suffered from mild asthma and bronchitis ( astma oskrzelowa lagodna i spastyczne zapalenie oskrzeli ) and that he was in need of his parent ’s constant care .

On DATE ORG ( “ the FAC ” ) issued a decision granting the applicant the right to an earlyretirement pension as of DATE in the net amount of MONEY ( PLN ) .

On DATE the ORG asked ORG doctor ( PERSON ) to inform it whether the applicant ’s son required the permanent care of a parent . On DATE the doctor stated that , on the basis of the medical documents , the child could not be considered as ever having required such care .

On DATE ORG issued simultaneously CARDINAL decisions in respect of the applicant . By virtue of CARDINAL decision , the payment of the applicant ’s pension was discontinued with immediate effect . By virtue of the other decision , ORG reopened the proceedings , revoked the initial decision granting a pension and eventually refused to grant the applicant the right to an earlyretirement pension under the scheme provided for by the DATE Ordinance .

NORP The applicant appealed against the respective decisions divesting him of the right to an earlyretirement pension . He submitted that he should receive the benefit because his child required constant care , as confirmed by the medical certificate attached to the applicant ’s original application for a pension . Moreover , the applicant alleged that the revocation of his retirement pension was contrary to the principle of vested rights .

On CARDINAL DATE ORG ( PERSON ) dismissed the appeal . ORG concluded on the basis of the evidence that the applicant ’s child did not require his father ’s permanent care since his health condition did not significantly impair his bodily functions . The domestic court held that the applicant had been rightfully divested of his right to a pension under the scheme provided by the DATE Ordinance as he did not satisfy the requirement of necessary permanent care .

The applicant further appealed against the firstinstance judgment .

On DATE ORG ( FAC ) dismissed the appeal .

On DATE ORG ( Sąd Najwyższy ) refused to entertain the cassation appeal lodged by the applicant .

Following the social security proceedings the applicant was not ordered to return his earlyretirement benefits paid by ORG , despite the revocation of his right to an earlyretirement pension .

The applicant submitted that after revocation of the EWK pension he remained unemployed until DATE . During this time he received no social or unemployment benefits . His wife had been employed seasonally as a heating system operator in schools . They owned a farm which was too small to qualify them for the social security scheme for farmers and from which they derived no income .

The Government submitted that the applicant took up employment in DATE . They failed to specify the amount of his salary . However , after DATE the family ’s yearly income increased from ORG CARDINAL,CARDINAL ( approx . CARDINAL ( ORG ) ) to ORG CARDINAL ( approx . EUR CARDINAL ) . The applicant ’s wife worked DATE during DATE only . The Government maintained that the applicant ’s wife also owned a small farm which might have constituted an additional source of income .

In addition , the ORG submitted information as regards the various types of social benefits available in GPE . However , they did not specify which of those benefits , if any , were available in the applicant ’s situation .

NORP Under the relevant laws currently in force , it appears that the applicant will qualify for a regular retirement pension in DATE .

CARDINAL applications arising from a similar fact pattern have been brought to the ORG . The majority of the applicants form ORG ( ORG przez ZUS ) ( “ the Association ” ) , an organisation monitoring the practices of ORG in GPE , in particular in the ORG region .

Out of all applications lodged with the ORG , about twentyfour applicants decided not to lodge a cassation appeal against the judgment of ORG given in their case .

One hundredandfour applicants lodged cassation appeals against the final judgments given in their cases . ORG entertained and dismissed on the merits DATE appeals . In eightyone applications ORG refused to entertain cassation appeals on the ground that they did not raise any important legal issues or require ORG to give a new interpretation to legal provisions which raised serious doubts or gave rise to ambiguity in the jurisprudence of the domestic courts . In the remaining CARDINAL cases cassation appeals were rejected for failure to comply with various procedural requirements .

NORP The legal provisions applicable at the material time and questions of practice are set out in the judgment in the case of GPE GPE , no . CARDINAL , § CARDINAL , DATE .

NORP The social security scheme for farmers is regulated by ORG the DATE LAW ; ustawa o ubezpieczeniu społecznym rolników ) .

The reopening of the proceedings concerning the earlyretirement pension is regulated in section CARDINAL ( CARDINAL ) of LAW DATE on the system of social insurance ( Ustawa o systemie ubezpieczeń społecznych ) , which at the relevant time read as follows :

“ The right to benefits or the amount of benefits will be reassessed upon application by the person concerned or , ex officio , if , after the validation of the decision concerning benefits , new evidence is submitted or circumstances which had existed before issuing the decision and which have an impact on the right to benefits or on their amount are discovered . ”

On DATE a new subparagraph CARDINAL ( CARDINAL ) a was added , which reads as follows :

“ Section CARDINAL shall apply respectively , if , after the validation of the decision it is discovered that the evidence that had been submitted did not give the right to a pension , disability pension or its amount . ”

A party to civil proceedings could , at the material time , lodge a cassation appeal with ORG against a judicial decision of a secondinstance court . A party had to be represented by an advocate or a legal adviser .

Article CARDINAL of the Code of Civil Procedure as applicable at the material time listed the grounds on which a cassation appeal could be lodged . It read as follows :

“ The cassation appeal may be based on the following grounds :

CARDINAL ) a breach of substantive law as a result of its erroneous interpretation or wrongful application ;

CARDINAL ) a breach of procedural provisions , if that defect could significantly affect the outcome of the case . ”

Pursuant to LAW , having allowed a cassation appeal , could quash the challenged judgment in its entirety or in part and remit the case for reexamination . Where ORG failed to find nonconformity with the law , it dismissed the cassation appeal . According to Article CARDINAL if the cassation appeal was wellfounded ORG could also amend the impugned judgment and adjudicate on the merits .

On DATE the ORG made an application to ORG , asking for section CARDINAL § CARDINAL of the Law of DATE on retirement and disability pensions paid from ORG ( LOC o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych ) ( “ the DATE LAW ) to be declared unconstitutional in so far as it restricted the application of the DATE Ordinance to persons born before DATE . More specifically , the ORG submitted that the introduction of an agelimit in respect of persons taking care of a child , which in essence amounted to a deprivation of the right to a benefit , constituted a violation of the principle of equality set forth in LAW .

On DATE ORG ( KCARDINAL/CARDINAL ) declared the impugned section CARDINAL § CARDINAL of the DATE Law unconstitutional in so far as it restricted the application of the DATE Ordinance to persons born before DATE . ORG reiterated among other things the constitutional principle of acquired rights which guarantees particularly strong protection for the right to receive social welfare benefits .

On DATE the ORG made an application to ORG , asking for CARDINAL ( CARDINAL)(a ) of the DATE Law to be declared unconstitutional in so far as it allowed the ORG to reopen ex officio proceedings relating to the grant of a pension or a disability pension on the basis of a new assessment of evidence which had already been submitted .

On DATE ORG ( GPE declared the impugned section CARDINAL ( CARDINAL)(a ) of the DATE Law unconstitutional in so far as it allowed the ORG to reopen such proceedings following a new assessment of evidence which had already been submitted .


Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE .

On DATE the applicant arrived at the NORP ORG of GPE to meet with the president of that court . It appears that the applicant attempted to enter the president ’s waiting room ahead of the queue of visitors causing their dissatisfaction . The president ’s assistant called an usher who invited the applicant to leave the waiting room and to wait in the corridor . As the applicant refused to comply , the usher forced him out and drew up a report stating that the applicant had committed an offence punishable under LAW of LAW , that is , disobeyed the usher ’s order aimed at maintaining public order on the court ’s LOC .

According to the applicant , he was unable to meet the president of the court on DATE as a result of those events .

On DATE the applicant lodged a claim against the bailiffs’ service with ORG . It appears that he sought compensation for non - pecuniary damage .

In a decision of CARDINAL DATE the NORP ORG declined to examine the applicant ’s claim , stating that it fell outside its territorial jurisdiction and that the applicant should apply to ORG of GPE . ORG of GPE also declined to examine the applicant ’s claim in a decision of DATE , stating that it fell within the jurisdiction of ORG .

In a letter of DATE the prosecutor ’s office of LOC of GPE informed the applicant that they had examined his complaint and established that the usher ’s actions had been lawful and that he had acted within his competence .

On DATE the applicant again filed a claim with ORG . It appears that he complained that he had endured emotional and physical suffering as a result of the usher ’s actions on DATE and requested that the court hold the usher liable under administrative and criminal law and to award the applicant compensation for non - pecuniary damage .

On DATE the Savelovskiy ORG declined to examine the applicant ’s claim , stating that it could not be examined in civil proceedings , as the applicant had asked the court to hold the usher liable for abuse of power , that is , for a criminal offence . The court noted that the applicant should thus lodge his request with a prosecutor ’s office .

On DATE ORG upheld the above decision on appeal .

Article CARDINAL of LAW of DATE provides that decisions and actions or lack of action of state bodies , bodies of local self - government , public associations and officials may be appealed against in court .

LAW provides for the right to be compensated by the state for damage caused as a result of the unlawful actions ( or omission ) of state bodies and their officials .

Article CARDINAL of the NORP Civil Code provides that compensation in respect of non - pecuniary damage is payable only in the event that physical or psychological damage has been inflicted on a person in violation of his rights .


Remainder inadmissible;Violation of Art. 6-1+6-3-c;Non-pecuniary damage - award

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in GPE .

NORP In DATE the GPE I / ORG charged the applicant with disorderly conduct and vandalism , punishable by DATE of imprisonment .

ORG held hearings on DATE , DATE and DATE . On the latter date it found the applicant guilty of vandalism and fined him MONEY ( ORG ) ( MONEY ( ORG ) ) . ORG relied on documentary evidence , the opinion of an expert , and the testimony of witnesses and the applicant .

The applicant appealed , seeking acquittal on the ground that the judgment was ill - founded , and requested the court to hold a public hearing . The GPE Chief prosecutor also appealed , and requested the court to quash the first - instance judgment and remit the case to ORG because of shortcomings in the finding of facts .

ORG notified the applicant ’s lawyer that it would determine the appeal sitting in camera . In reply , the lawyer put forward supplementary arguments and again requested the court to hold a public hearing .

On DATE ORG held a session in camera and upheld the applicant ’s conviction . The applicant , his lawyer and the prosecutor were absent .

ORG reviewed the entirety of the proceedings and established their lawfulness . Furthermore , it considered that the findings of fact by the first - instance court were not ill - founded within the meaning of section CARDINAL(CARDINAL ) of LAW , and were thus suitable for an appellate review without taking further evidence .

NORP However , ORG , relying on the existing case file , modified the findings of fact as established by the first - instance court . When delivering its judgement , it relied on the modified facts .

Act no . ORG of DATE on the [ New ] Code of Criminal Procedure provides , in so far as relevant , as follows :

“ ... ( CARDINAL ) An appeal may concern questions of fact or law . ”

“ ( CARDINAL ) The second - instance court shall base its decision on the facts as established by the first - instance court unless the first - instance judgment is ill - founded ....

( CARDINAL ) The first - instance judgment is ill - founded if :

a ) the facts have not been explored ;

b ) the first - instance court has failed to establish the facts or the findings of fact are deficient ;

c ) the findings of fact are in contradiction with the contents of the documents ;

d ) the first - instance court has drawn incorrect conclusions from the findings of fact in regard to a further fact . ”

“ ... ( CARDINAL ) In order to eliminate the ill - foundedness of the first - instance judgment , evidence may be taken if the findings of fact have not been established or are deficient . Evidence shall be taken ... at a hearing . ”

“ ( CARDINAL ) Within DATE of receiving the file , the president of the panel in charge shall schedule , in order to deal with an appeal , deliberations in camera ( tanácsülés ) , a public session ( nyilvános ülés ) or a hearing ( tárgyalás ) . ... ”

“ ( CARDINAL ) The second - instance court shall hold a public session , if – the first - instance judgment being ill - founded – the complete and/or correct findings of fact may be established from the contents of the file or through drawing factual conclusions , or if the defendant must be heard in order to clarify the circumstances relevant for imposing the sentence .

( CARDINAL ) The second - instance court shall summon to the public session those persons whose hearing it deems necessary ... ”

“ ( CARDINAL ) The second - instance court shall notify the public prosecutor and DATE if they are not summoned -– ... the defendant and his lawyer of the public session . ... ”

“ ( CARDINAL ) In order to take evidence , a hearing ( tárgyalás ) ... shall be scheduled . ”

“ ( CARDINAL ) The court ’s final decision on the merits is susceptible to a [ ORG ] review ( felülvizsgálat ) if ...

c ) the decision has been adopted amidst procedural irregularities within the meaning of section CARDINAL(CARDINAL ) subparagraphs II to PERSON . ”


George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE .

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

NORP In DATE the applicant married PERSON The couple had a son O. , born on DATE . The family lived together until DATE when the applicant took ORG and moved back to her old house . On DATE , after a scuffle with the applicant , PERSON took ORG from her and from that time onwards maintained the actual custody over the child .

On DATE the applicant filed a petition for divorce . At ORG ( PERSON ) request , on DATE CARDINAL experts of ORG ( Rodzinny Ośrodek PERSON , hereinafter : FAC ) gave an expert opinion , in which they pointed to O. ’s clear entanglement in the strong marital conflict between the applicant and PERSON The experts observed that PERSON was being strongly influenced by his father and that many of his statements were “ induced ” statements deprecating the applicant whom the child perceived very negatively . They found the existing family situation to be detrimental to the child and proposed to separate him temporarily from both parents and place him in a health resort ( sanatorium ) . They moreover advised the court to consider the supervision of the family situation by an appointed court guardian ( kurator sądowy ) .

On CARDINAL DATE the ORG specified the access arrangements , allowing the applicant to visit O. once a week for TIME at PERSON ’s house and under the supervision of a court guardian . On DATE ORG ( Sąd Apelacyjny ) dismissed the applicant ’s appeal , holding that the access arrangements specified by ORG were reasonable .

At the court hearing held on DATE , an expert of ORG recommended that the applicant ’s contacts with O. take place in a neutral place instead of the father ’s house . Consequently , on DATE ORG provisionally changed the access arrangements , allowing the applicant to meet PERSON on DATE in a fast - food restaurant under the supervision of a court guardian . Due to unspecified organisational problems , CARDINAL of the CARDINAL planned meetings took place .

On DATE ORG permanently changed the access arrangements , allowing the applicant to see O. once a week for TIME in a fast - food restaurant under the supervision of a court guardian . On DATE ORG dismissed the applicant ’s appeal , finding that the right of access was primarily the right of the child and not that of the applicant . The ORG noted that the child apparently did not wish to see the applicant and pointed to the applicant ’s lack of patience and her unwillingness to cooperate with the supervising court guardian .

At the hearing held on DATE , the court guardian informed the court that during the meetings in the restaurant ORG had not wanted to see the applicant without his father ’s presence .

At ORG request , on DATE the FAC prepared another opinion . The opinion stated that the reason for O. ’s aversion to the applicant had been his father ’s behaviour . The experts noted that the child was under the strong influence of his father and reacted hysterically to the applicant ’s presence . They urged the court to suspend O. ’s meetings with the applicant and to undertake steps aimed at improving their mutual relations . The opinion moreover recommended placing the child under psychological assistance and stated that the child ’s father should be persuaded to participate in the meetings with a psychologist in order to correct his attitude .

On DATE the applicant requested the court to change the access arrangements and allow her to meet O. at her own home . On DATE ORG dismissed her request , holding it to be premature , on account of ORG recommendation that the applicant ’s contacts with ORG be temporarily suspended . ORG noted that ORG clearly did not wish to see his mother and that it would be contrary to the child ’s best interests if the meetings were to take place at the applicant ’s home .

On DATE ORG dismissed the applicant ’s appeal . ORG observed that ORG should issue appropriate decisions in view of the expert findings indicating the child ’s father ’s incorrect parental behaviour . ORG urged ORG to consider changing the access arrangements and , in particular , to consider the possibility of allowing the applicant to meet her son without the father ’s presence , under the supervision of the court guardian , in order to improve the relations between the applicant and the child . It further noted that it would be detrimental to the child ’s emotional health if the existing situation were to persist .

On DATE the ORG dissolved the applicant ’s marriage without attributing the fault to either party . The court awarded custody rights to PERSON , finding that O. demonstrated strong affection for his father who , in the court ’s view , offered better prospects for the proper exercise of custody . The court restricted the applicant ’s custody rights over O. , holding her to have been an inept mother who in the past had largely neglected O. ’s education . ORG further decided that the access arrangements would be specified by ORG , hereafter : ORG ) in PERSON . The divorce court also held that placing O. in a health resort ( sanatorium ) would only constitute a temporary remedy while putting him in a foster family would be contrary to his best interests , given his affection for , and dependence on , his father .

The applicant did not appeal against the divorce decision and it subsequently became final .

In DATE the Director of ORG informed the applicant that her DATE meetings with O. would be TIME long and take place on the LOC of ORG . It appears that no psychologist has ever assisted in the meetings .

In DATE the Director of ORG requested the court to discharge ORG from the duty to organise the applicant ’s meetings with O. , due to the child ’s and his father ’s visible unwillingness to comply with the access arrangements . The Director explained that from the very outset the meetings had met with difficulties and that from DATE O. had no longer been coming to the meetings .

On DATE ORG ( Sąd Rejonowy ) ordered PERSON to comply with the access arrangements , on pain of a fine in the amount of ORG CARDINAL ( approx . ORG CARDINAL ) being imposed on him . PERSON ’s appeal was dismissed by ORG on DATE . It appears that PERSON has since then complied with the access arrangements and brought O. to the meetings with the applicant .

On DATE the applicant requested the court to fine PERSON once more for his non - compliance with the access arrangements . The applicant argued that ORG would only briefly appear at the meetings and not talk to her , after which he would leave ORG and be driven home by his father or grandfather .

On DATE ORG dismissed her request , finding that PERSON had complied with the access arrangements by bringing O. to the meetings and that he could not be blamed for O. ’s own reluctance to see the applicant . On DATE ORG dismissed the applicant ’s appeal . In passing , ORG expressed a view that the child was clearly being harmed , a circumstance which both parents PERSON and the applicant alike – refused to admit .

On DATE the ORG ex officio issued a temporary order on access arrangements , allowing the applicant to meet O. at her home DATE for TIME and for TIME on GPE DATE . The applicant ’s appeal was dismissed by ORG on DATE .

At LOC request , on DATE ORG in GPE issued another expert opinion . Without giving any excuse , the applicant did not appear at either of the CARDINAL interviews with ORG experts . The experts found that in DATE the applicant had been absent from ORG ’s life and that ORG ’s attitude towards her was hostile . They noted that ORG did not wish to see the applicant and they recommended a temporary suspension of their contacts . The experts moreover recommended that psychological assistance be given to ORG with a view to analysing and rectifying his relations with the applicant . At the same time , they criticised the applicant for her inability to deal with her role as a mother and observed that her motivation for having access to her son appeared to be superficial .

On DATE ORG dismissed the applicant ’s renewed request for changing the access arrangements . It noted that ORG had come to the applicant ’s home on several occasions and invited her out for a walk or for coffee but that the applicant , to O. ’s disappointment , had shown no flexibility and insisted that the meetings only take place at her home . ORG concluded that the applicant ’s inflexible stance did not warrant changing the access arrangements . The applicant ’s appeal was dismissed by ORG on DATE .

At the applicant ’s request filed on DATE , on DATE ORG ordered PERSON to comply with the access arrangements , on pain of a fine in the amount of ORG CARDINAL ( approx . ORG CARDINAL ) being imposed on him , as the applicant had had no effective access to ORG since DATE .

On DATE the ORG ex officio changed the access arrangements , deciding that the venue of the applicant ’s contacts with O. was to be a local café instead of the applicant ’s house . ORG recognised that O. was disappointed with the applicant ’s lack of flexibility as to the venue of the meetings and it acknowledged the findings of an expert psychologist , according to which ORG ’s attitude towards the applicant was now genuinely his own and no longer influenced by his father . The applicant ’s appeal was rejected by ORG on formal grounds on DATE .

On DATE the ORG refused the applicant ’s request to fine PERSON for non - compliance with the access arrangements , finding the applicant to be at fault for the unsuccessful meetings with NORP on account of her bringing other members of her family to the meetings without seeking ORG ’s prior consent . The applicant ’s appeal was dismissed by ORG on DATE .

According to the applicant , ORG , who is now DATE , currently does not come to the meetings with her or appears at the meetings in the café but stays for no longer than half an hour , instead of TIME specified by the access arrangements . On several occasions , the applicant unsuccessfully requested the court to change the venue of the meetings with ORG back to her house .

If the court obliges a parent exercising custody rights to ensure access by the other parent to the child , LAW ( ORG postępowania cywilnego ) is applicable to the enforcement of this obligation .

Article CARDINAL provides , in so far as relevant :

“ CARDINAL . If the debtor is obliged to take measures which can not be taken by any other person , the court in whose district the enforcement proceedings were instituted , on a motion of the creditor and after hearing the parties , shall fix the time - limit within which the debtor shall comply with his obligation , on pain of a fine being imposed on him .

If the debtor fails to comply with this obligation , further time - limits may be fixed and further fines may be imposed by the court . ”


Violation of Art. 8;Non-pecuniary damage - award

Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and is currently in prison in GPE .

On DATE the applicant was sentenced by a ORG to a total of CARDINAL years’ imprisonment for conspiracy to supply Class A drugs and CARDINAL offences of possession of a Class A drug with intent to supply .

On DATE , while on bail pending trial , the applicant suffered a brain haemorrhage for which he underwent surgery . On DATE he underwent further surgery . Following his discharge to prison , he required monitoring and was required to go to hospital DATE for a specialist check - up by a neuro - radiologist .

In DATE the applicant was held in a high - security prison which held Category A ( high - risk ) prisoners as well as Category B prisoners such as himself . As a result , he fell within the provisions of a general order , ORG ( PSO ) CARDINAL , which applied to all prisoners of whatever security category who were being held in a unit which held Category A prisoners ( see paragraph CARDINAL below ) .

The applicant wished to correspond confidentially with his external medical specialist to ensure that he would receive the necessary medical treatment and supervision in prison . He expressed his concerns about his medical correspondence with his external medical specialist being read and applied to the prison governor for a direction that such correspondence should be accorded confidentiality .

On DATE the governor of the prison in which the applicant was being detained agreed to the applicant ’s request . It was decided that the applicant ’s medical correspondence would not be read provided that certain conditions were met . All outgoing and incoming mail was to be marked “ medical in confidence ” . Outgoing correspondence would be checked to ensure that it was being sent to a nominated address and incoming mail was to be marked with a distinctive stamp of the relevant health authority .

NORP The prison governor subsequently reconsidered his decision after seeking advice from ORG . On DATE the prison governor informed the applicant that he had been advised that it was necessary to examine his medical correspondence for illicit enclosures . All correspondence between the applicant and his external medical specialist would be directed , unopened , to the prison medical officer . The latter would examine the content of the envelope in order to ascertain its medical status and then reseal it . Incoming and outgoing correspondence would then be sent to the applicant and his external medical specialist respectively .

NORP The applicant contested the decision to monitor his medical correspondence . He was concerned that his attempts to confirm that he was receiving adequate treatment in hospital might be regarded by the prison medical officer as criticism and that this might inhibit his relationship with his external medical specialist .

On DATE the applicant applied for leave to apply for judicial review of the prison governor ’s decision of CARDINAL DATE . On DATE the presiding High Court judge , Mr Justice PERSON , allowed the applicant ’s claim for judicial review .

ORG had submitted , inter alia , that it would be difficult to make the necessary arrangements to permit medical correspondence to remain confidential . They argued that there were a large number of health bodies with which a prisoner might wish to correspond and that some health bodies might lack franking machines that would enable prisons to identify the authenticity of the sender .

Mr Justice PERSON concluded that there were exceptional circumstances in the applicant ’s case . The exceptional circumstances were said to be the life - threatening nature of the applicant ’s condition and his desire to ensure that his treatment in prison did not affect him adversely . The applicant , understandably , wanted to obtain reassurance from the medical specialist who was involved in treating him and from whom he required continual medical care , in the form of DATE specialist observations . Mr ORG also found that the initial decision of the prison governor to enable the applicant to correspond on a confidential basis with his external medical specialist indicated that it was reasonable to permit such confidential correspondence . The evidence of ORG as to the practical problems involved in making arrangements to enable confidential medical correspondence were not directly material in an exceptional case such as the present one .

In the circumstances , and emphasising that this was a case which turned on its own exceptional facts , Mr Justice PERSON considered it appropriate to quash the prison governor ’s decision of DATE . He granted the applicant a declaration that “ the governor of whatever prison the [ applicant ] resides [ in ] should make a decision in accordance with the principles made in light of this judgment ” .

On DATE ORG allowed the appeal by the Secretary of ORG and the prison governor . Lord Justice PERSON gave the judgment of the court . It was noted that there was no dispute that the reading of ORG correspondence was governed by law , and that it was directed to the prevention of crime and the protection of the rights and freedoms of others . The issue to be decided was whether , in the language of LAW , the reading of the applicant ’s correspondence was proportionate . While the prison governor ’s initial decision to allow confidentiality to the applicant ’s medical correspondence with his external medical specialist strongly suggested that its exemption from LAW would be a perfectly reasonable course , the onus still remained on the applicant to establish that anything more invasive would constitute a disproportionate interference with his LAW .

ORG concluded that although the procedure set out in the prison governor ’s letter of DATE amounted to an interference with the applicant ’s right to respect for his correspondence , the interference was justified and proportionate under LAW . It considered that although it was of course possible to verify the existence , address and qualifications of the applicant ’s external medical specialist ( whose bona fides was not in question ) , there was no way of ensuring that the latter would not be intimidated or tricked into transmitting illicit messages . While the same was true of , for example , the secretarial staff of members of parliament ( MPs ) , the importance of unimpeded correspondence with MPs outweighed the risk . By contrast , as regards correspondence with doctors , the prisoner ’s health was the concern and the immediate responsibility of ORG . Though it may well be the case that allowing the prison medical officer to read the prisoner ’s correspondence with an outside medical practitioner might lead the former to “ encounter criticism of his own performance ” , it was inherently unlikely that this would carry the same degree of risk that might attend the reading by a discipline officer of a letter of complaint to ORG . Moreover , if it related to the prisoner ’s well - being it was probable that the prison medical officer ought in any event to know about it .

ORG concluded that the monitoring of the applicant ’s medical correspondence was a proportionate interference with his Article CARDINAL rights , although it did not exclude the possibility that in another case it might be disproportionate to refuse confidentiality to medical correspondence in the prison context . ORG based its conclusion on the following factors . Firstly , the monitoring of the applicant ’s medical correspondence answered legitimate and pressing policy objectives which were clearly stated in LAW ( see paragraph CARDINAL below ) . Secondly , short of withdrawing all scrutiny , it considered that there was no less invasive measure available to the prison service . Thirdly , the reading of the applicant ’s medical correspondence which was limited to the prison medical officer was not in its view excessive . Fourthly , the process by which the measure had been decided upon was not found to be arbitrary . In particular , it had not been the result of the rigid application of a policy . The withdrawal of monitoring had not only been considered but had been implemented until , upon reconsideration , monitoring had been resumed . The interference in question had not denied the essence of the applicant ’s LAW as it related to CARDINAL correspondent only ( the external medical specialist ) and it confined the interference to a medically qualified reader ( the prison medical officer ) . It was recognised that there was an inescapable risk of abuse , for example , if the applicant ’s prison life or treatment was made more difficult because of what he was observed to be writing . However , the risk , having been minimised by virtue of confining surveillance to the prison medical officer , was outweighed by the above - mentioned factors .

On DATE the applicant ’s petition for leave to appeal was refused by ORG on the ground that the petition did not raise an arguable point of law of general public importance .

NORP Since CARDINAL DATE the applicant has been located in a Category B prison in GPE .

NORP The Secretary of ORG is responsible for the management of the prison system in GPE and GPE ( Prison Act DATE , sections CARDINAL and CARDINAL ) .

Until DATE each prison was required to appoint a medical officer ( Prison Act DATE , section CARDINAL(CARDINAL ) ) . The medical officer was a prison officer who had to be a registered medical practitioner ( Prison Act DATE , section CARDINAL ) . This requirement was removed by section GPE ) of LAW DATE which came into force on DATE . Prison health care is now generally integrated with , and commissioned by , ORG ( ORG ) .

Section CARDINAL(CARDINAL ) of the Prison Act DATE authorises the Secretary of ORG to make rules for the regulation and management of prisons and for the classification , treatment , employment , discipline and control of persons required to be detained therein . Such rules are made by statutory instrument , laid before ORG , and are subject to annulment in pursuance of a resolution of either ORG of ORG ( Prison Act DATE , section CARDINAL(CARDINAL ) and LAW DATE , section CARDINAL ) ) .

Prisoners are classified in accordance with directions of the Secretary of ORG ( Prison Rules SI CARDINAL/CARDINAL rule CARDINAL(CARDINAL ) ) . Prisoners are classified in accordance with ORG DATE . Paragraph CARDINAL of ORG DATE contains the definitions of the CARDINAL categories of prisoner ( A , B , C and D ) . Category A is applied to prisoners whose escape would be highly dangerous to the public or the police or the security of the ORG , no matter how unlikely that escape might be , and for whom the aim must be to make escape impossible . Category B is applied to prisoners for whom the very highest conditions of security are not necessary , but for whom escape must be made very difficult .

Rule CARDINAL of ORG is headed “ Communications Generally ” It provides as relevant :

“ ( CARDINAL ) Without prejudice to sections CARDINAL and CARDINAL of the Prison Act DATE and except as provided by these Rules , a prisoner shall not be permitted to communicate with any person outside the prison , or such person with him , except with the leave of the Secretary of ORG or as a privilege under rule CARDINAL .

( CARDINAL ) Notwithstanding paragraph ( CARDINAL ) above , and except as otherwise provided in these Rules , the Secretary of ORG may impose any restriction or condition , either generally or in a particular case , upon the communications to be permitted between a prisoner and other persons if he considers that the restriction or condition to be imposed DATE

( a ) does not interfere with the Convention rights of any person ; or

( b ) ( i ) is necessary on grounds specified in paragraph ( CARDINAL ) below ;

( ii ) reliance on the grounds is compatible with the Convention right to be interfered with ; and

( iii ) the restriction or condition is proportionate to what is sought to be achieved .

( CARDINAL ) The grounds referred to in paragraph ( CARDINAL ) above are –

( a ) the interests of national security ;

( b ) the prevention , detection , investigation or prosecution of crime ;

( c ) the interests of public safety ;

( d ) securing or maintaining prison security or good order and discipline in prison ;

( e ) the protection of health or morals ;

( f ) the protection of the reputation of others ;

( g ) maintaining the authority and impartiality of the judiciary ; or

( h ) the protection of the rights and freedoms of any person .

( CARDINAL) In this rule –

( c ) references to Convention rights are to the Convention rights within the meaning of LAW DATE . ”

Rule CARDINAL of the Prison Rules deals with correspondence with legal advisers and courts and provides that such correspondence may only be opened , read or stopped by the prison governor in accordance with the provision of that rule , namely when the governor has cause to believe either that the correspondence contains an illicit enclosure or that its contents endanger prison security or the safety of others or are otherwise of a criminal nature .

LAW , which was applicable at the relevant time and which dealt with prisoner communications in connection with those who were in Category A prisons , or who were in prisons which held Category A prisoners , provided as follows :

“ Prison management must provide facilities for prisoners to maintain contact with family and friends . Prisoners’ rights to respect for their private and family life and correspondence are also protected by LAW . ORG duty to protect the public allows us to interfere in this privacy in order to minimise the possibility that , in communicating with the outside world , prisoners :

( i ) plan escapes or disturbances ;

( ii ) jeopardise the security and good order of the prison ;

( iii ) engage in offences against criminal law or prison discipline ;

( iv ) jeopardise national security ;

( v ) infringe the rights and freedoms of others . ”

Chapter CARDINAL of PSO CARDINAL read :

“ All correspondence , other than correspondence protected by GPE [ that is correspondence with legal advisors ] or that with the Samaritans , must be read as a matter of routine in the following cases :

( i ) all prisoners of whatever security category , held in a unit which itself holds Category A prisoners . ”

Chapter CARDINAL continued as follows :

“ Routine reading is necessary in these cases in order to prevent escape and , in the case of Category A prisoners , in the interests of public safety . It is also necessary in preventing crime and disorder , for the protection of the rights and freedoms of others , and , in some cases , necessary in the interests of national security or the economic well being of the country . ”

PSO CARDINAL is entitled “ Prisoner Communications : Correspondence ” . It came into operation on DATE . So far as is material to the present case it reflects the practice and procedure in operation from DATE to DATE .

Special treatment was at the relevant time and still is given to various forms of correspondence apart from that with legal advisers , specifically covered by rule CARDINAL of ORG and that with the NORP , specifically mentioned in LAW . Correspondence with , inter alia , the courts , ORG , ORG , ORG , ORG , ORG , ORG , ORG , ORG and MPs are generally treated as confidential .

PSO CARDINAL introduced a new category of correspondence subject to confidential handling arrangements . LAW includes ORG as CARDINAL of the bodies with which a prisoner is entitled to correspond confidentially . ORG is the independent watchdog for health care in GPE . It assesses and reports on the quality of services provided by the ORG and the independent health - care sector .

Chapter III , paragraph CARDINAL of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) standards published in DATE states the following :

“ While in custody , prisoners should be able to have access to a doctor at any time , irrespective of their detention regime ... The health - care service should be so organised as to enable requests to consult a doctor to be met without undue delay .

Prisoners should be able to approach the health - care service on a confidential basis , for example , by means of a message in a sealed envelope . Further , prison officers should not seek to screen requests to consult a doctor . ”

Paragraph CARDINAL of the ORG standards provides :

“ Medical secrecy should be observed in prisons in the same way as in the community . ... ”


Violation of P1-3;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient

András Baka;Christos Rozakis;David Thór Björgvinsson;Dean Spielmann;Egbert Myjer;Françoise Tulkens;Ireneu Cabral Barreto;Jean-Paul Costa;Josep Casadevall;Lech Garlicki;Nicolas Bratza;Nona Tsotsoria;Peer Lorenzen;Renate Jaeger;Sverre Erik Jebens;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in GPE . He is currently a member of ORG .

On DATE the applicant was elected President of GPE . He took office on DATE , following his inauguration . On that occasion , in accordance with LAW , he took an oath to be loyal to GPE and the LAW , to fulfil the duties of his office conscientiously , and to be equally just to all .

On DATE the applicant issued Decree no . DATE , countersigned by the Minister of the ORG , granting NORP citizenship “ by way of exception ” ( išimties tvarka ) to a NORP businessman , PERSON , who had been awarded the Medal of PERSON and ORG in DATE by the applicant 's predecessor , PERSON , for services to GPE ( he was subsequently divested of the medal following the events outlined below ) .

On DATE the Seimas ( ORG ) requested ORG to determine whether Presidential Decree no . DATE was in compliance with the LAW and LAW . The LAW submitted that the procedure of granting citizenship by way of exception appeared to have been applied inappropriately in this case . In particular , it asserted that ORG had no special merit warranting his exceptional treatment and that the applicant had in fact granted him citizenship as a reward for his substantial assistance by financial and other means to the applicant 's election campaign .

On DATE ORG accepted the request for consideration as case no . CARDINAL . On DATE it held a public hearing and examined witnesses .

On DATE an article was published in a NORP DATE newspaper , PERSON , reporting that the President of ORG had been seen in a coffee bar with the Deputy Speaker of the Seimas , who had been closely involved in the inquiry into the applicant 's activities . The newspaper implied that during this informal meeting the CARDINAL officials had discussed the proceedings taking place in ORG , thus casting a shadow of suspicion over that court 's objectivity . The CARDINAL men had subsequently said that they often met professionally and socially , and denied discussing the merits of the case .

Referring to the above - mentioned newspaper article , the applicant 's lawyers challenged the President of ORG for bias , seeking his removal from the examination of case no . CARDINAL . Their challenge was dismissed on the ground that the mere fact that the CARDINAL officials had met informally did not constitute a basis for the withdrawal of a judge from proceedings before ORG .

On DATE the ORG gave its ruling in case no . CARDINAL , finding that Decree no . DATE was not in compliance with LAW , LAW of the LAW , the constitutional principle of the rule of law and section CARDINAL(CARDINAL ) of LAW .

On the last point , ORG observed that citizenship could be granted by way of exception only to persons who had never been NORP citizens . It noted in that connection that PERSON , a NORP citizen by birth from a NORP military family , had acquired NORP citizenship under LAW of DATE , by which citizenship could be granted , inter alia , to persons who on DATE had had their permanent residence and permanent place of work or source of income in GPE . In DATE ORG had ruled that “ soldiers of GPE who previously served in the NORP occupying military forces unlawfully stationed in the territory of GPE [ could ] not be regarded as permanently residing and working in GPE ” . On DATE ORG ( established in DATE under LAW for LAW ) had found that ORG 's status was unlawful , since he had served in the NORP armed forces . It had nevertheless recommended that his status be regularised in accordance with the above - mentioned section CARDINAL , by which exceptions could be made for persons who had acquired citizenship in good faith before DATE on that unlawful ground . On DATE ORG of ORG had followed that recommendation . However , in DATE PERSON had applied for NORP citizenship , which he had been granted in DATE ; on DATE he had been issued with a NORP passport , thereby losing his NORP citizenship . ORG observed that the applicant had signed Decree no . CARDINAL on DATE even though ORG of ORG had reminded him DATE before that PERSON had previously lost his NORP citizenship .

ORG held that , as a result , Decree no . DATE was also in breach of LAW of LAW – which provides that the President is to grant citizenship in accordance with the procedure established by law – and the constitutional principle of the rule of law .

The Constitutional Court went on to note that , although the NORP authorities had already made an exception in his favour by regularising his status in DATE , ORG had acquired NORP citizenship in DATE . This showed that “ citizenship of GPE was of less value to [ J.B. ] than citizenship of the GPE ” . ORG further noted that ORG had informed the applicant , prior to DATE , that an investigation was being carried out into PERSON 's activities as director of an aviation company and , on DATE , that ORG had threatened to disseminate information discrediting the applicant if the latter failed to keep his promise to appoint him as an adviser . In ORG view , the applicant had knowingly ignored these circumstances , although they were of crucial importance in deciding whether or not to grant citizenship to PERSON by way of exception . Having regard also to the fact that PERSON had made a significant financial contribution to the applicant 's election campaign , it concluded that the decision to grant him citizenship had been “ determined not by any merit rendering [ J.B. ] worthy of becoming a citizen of GPE , but by his significant assistance by financial and other means to [ the applicant 's ] election campaign in DATE ” . Thus , “ the granting of citizenship to [ J.B. ] by way of exception was nothing but a reward by the President of GPE to [ J.B. ] for the aforesaid support ” ; consequently , in issuing Decree no . DATE , the President had heeded “ neither the LAW ... nor the law , nor the interests of the people and the ORG , but purely his own interests ” . The court therefore concluded that the applicant had “ afforded [ J.B. ] exceptional treatment and knowingly disregarded the fundamental principles enshrined in LAW and LAW respectively , whereby all persons are equal before ORG institutions or officials , and the President of the Republic must be equally just to all ” .

In a public speech on DATE , and again in his New Year speech , the applicant declared that “ politics [ had ] taken precedence over the law ” in ORG ruling . In reply , on DATE ORG issued a public statement emphasising its independence and noting , inter alia , that the applicant had attempted to undermine its authority .

On DATE , CARDINAL members of the Seimas submitted a proposal to initiate impeachment proceedings against the applicant . On DATE the ORG set up a special commission to investigate the reasonableness and seriousness of certain allegations about the applicant 's conduct , in order to determine whether such proceedings should indeed be initiated .

On DATE the special investigation commission concluded that some of the charges levelled against the applicant were founded and serious . Accordingly , it recommended that the NORP institute impeachment proceedings . ORG had apparently provided the commission with transcripts of secretly taped telephone conversations involving the applicant . The applicant 's lawyers were not given access to the transcripts by the ORG or by the commission , because it had decided not to rely on them .

Also on DATE the Seimas decided to follow the special investigation commission 's recommendation and requested ORG to determine whether the specific acts of the applicant cited by the commission had breached LAW . The impeachment charges submitted to ORG included the following allegations in particular , involving purely private interests to the detriment of those of the nation , thus discrediting the institution of the presidency :

– that the applicant had undertaken to perform a number of actions in ORG 's favour in exchange for financial and other forms of support during his election campaign , and had later acted under PERSON 's influence ;

– that , as a reward for this support , the applicant had unlawfully granted NORP citizenship to ORG ;

– that he had disclosed a ORG secret by informing PERSON that the secret services were investigating his activities , notably by telephone tapping ; and

– that he had exercised undue pressure on the management decisions of a private company in order to secure pecuniary advantages for certain people close to him .

On DATE ORG accepted the request for consideration as case no . CARDINAL .

The applicant 's lawyers sought the removal of the President of ORG and all its members on grounds of bias , arguing that they had in effect already determined the case in the previous ruling of DATE in case no . CARDINAL . The challenge was dismissed .

In a declaration of CARDINAL DATE the ORG unsuccessfully proposed that the applicant tender his resignation in order to avoid protracted impeachment proceedings . The declaration alleged that his actions had become increasingly unpredictable and represented a danger to the ORG , its citizens and the prestige of the presidency .

On DATE ORG concluded that the applicant had committed gross violations of the LAW and a breach of his constitutional oath on account of the following acts :

DATE unlawfully granting citizenship to J.B. by Decree no . CARDINAL as a reward for the latter 's financial and other forms of support , in breach of section CARDINAL(CARDINAL ) of LAW and LAW § CARDINAL , LAW CARDINAL § CARDINAL of the LAW ;

– knowingly hinting to ORG , in breach of sections CARDINAL(CARDINAL ) , CARDINAL ) and CARDINAL ) of LAW and LAW and LAW , that the law - enforcement institutions were investigating him and tapping his telephone conversations ; and

– exploiting his official status to influence decisions by the ORG keliai company concerning the transfer of shares with a view to defending the property interests of certain private individuals close to him , in breach of section CARDINAL of ORG in LAW and LAW , LAW and LAW .

The applicant sought clarification of these conclusions under section CARDINAL of LAW , but his request was refused by ORG on DATE on procedural grounds .

On DATE the ORG decided to remove the applicant from the office of President on account of the gross violations of the LAW found by ORG . Its decision was taken by CARDINAL votes to CARDINAL for the first breach , CARDINAL votes to CARDINAL for the second and CARDINAL votes to CARDINAL for the third .

The applicant wished to stand as a candidate in the presidential election called for DATE . On DATE ORG ( ORG ) found that there was nothing to prevent him from standing . By DATE the applicant had gathered the required number of signatures in support of his candidacy , and submitted them to the ORG with a view to his registration as a candidate .

NORP However , on DATE the Seimas amended LAW by inserting the following provision :

“ A person who has been removed from parliamentary or other office by the LAW in impeachment proceedings may not be elected President of the LOC if less than DATE have elapsed since his removal from office . ”

Following this amendment , the ORG refused to register the applicant as a candidate in the forthcoming election . The applicant lodged a complaint with ORG on DATE , arguing in particular that that decision thwarted the legitimate expectations of his supporters and ran counter to the principles of the rule of law and the prohibition of retrospective legislation .

On an unspecified date , a number of members of the ORG requested ORG to review the constitutionality of the amendment to LAW , arguing that barring a person who had been removed from office from running for election as President was in itself in breach of the LAW . The request was registered as case no . CARDINAL .

ORG held on DATE that disqualifying a person who had been removed from office from standing in presidential elections was compatible with the LAW , but that subjecting such a restriction to a time - limit was unconstitutional . The court held , inter alia :

“ ... ORG has held that a breach of the oath is , at the same time , a gross violation of the LAW , while a gross violation of LAW is , at the same time , a breach of the oath to the nation ( ORG ruling of CARDINAL DATE ; ORG conclusion of DATE ) ...

A gross violation of the LAW or a breach of the oath undermines trust in the institution of the presidency and in ORG authority as a whole ... Removal from office of a president who has grossly violated the LAW or breached the oath is one of the ways of protecting the ORG for the common good of society , as provided for in the LAW .

It needs to be stressed that , under LAW , a person in respect of whom the Seimas – following a finding by ORG that he , as President , has committed a gross violation of the LAW and breached the oath – has applied the constitutional sanction , namely removal from office , may not evade constitutional liability through fresh presidential elections , a referendum or any other means ...

The LAW does not provide that , after a certain time has elapsed , a president whose actions have been recognised by ORG as having grossly violated the LAW , and who has been found to have breached the oath and has been removed from office by the LAW [ on that account ] ... , may [ subsequently ] be treated as though he had not breached the oath or committed a gross violation of the LAW ... [ A person ] ... who has been removed from office by the Seimas , the body representing the people , will always remain someone who has breached his oath to the nation and grossly violated the LAW , and who has been dismissed as President for those reasons ...

[ A person removed from the office of President ] may never again ... give an oath to the nation , as there would always exist a reasonable doubt ... as to its reliability ...

Impeachment is a form of public and democratic scrutiny of those holding public office , a measure of self - protection for the community , a ... defence against high - ranking officials who disregard the LAW and laws ...

Where a person has been removed from the office of President ... for a gross violation of the LAW or a breach of the oath ... he may never again be elected President of the Republic [ or ] a member of the LAW ; [ he ] may never hold office as ... a member of the Government , [ or ] ORG , that is , [ he ] may not hold an office provided for in LAW for which it is necessary to take an oath in accordance with LAW ... ”

On DATE ORG dismissed the applicant 's complaint against the decision of the ORG , referring , inter alia , to ORG ruling of CARDINAL DATE . It noted in particular :

“ ... It appears from the reasoning of ORG that ... the applicant has forfeited the right to be elected President with effect from DATE . Therefore , he ... can not take part in the election announced on DATE ...

Until it was amended on DATE , LAW did not specify the [ residual ] rights of a person who had forfeited the right to be elected President .

Article CARDINAL § CARDINAL of the LAW provides that LAW is directly applicable ... [ I]t follows that , from the moment ... the applicant submitted his candidacy for the election , his situation was governed by LAW , which , as ORG has found , bars [ a person removed from the office of President ] from standing in presidential elections . In these circumstances ... there has been no breach of the principle of the prohibition of retrospective legislation ... ”

On DATE the Seimas passed an amendment to LAW , to the effect that any official who had been removed from office following impeachment proceedings was disqualified from being a member of parliament .

In DATE the Prosecutor General discontinued the investigation into allegations that while in office , the applicant had abused his authority in relation to a private company ( LAW ) .

On an unspecified date the applicant was charged with disclosing information classified as a ORG secret ( LAW ) . On DATE ORG acquitted him for lack of evidence . On DATE ORG reversed that decision , finding the applicant guilty . It held , however , that owing to new circumstances , namely the applicant 's removal from office as President and disqualification from elected office , it was reasonable to discharge him from criminal liability and to discontinue the criminal proceedings . On DATE ORG quashed ORG judgment , upholding the acquittal delivered by ORG .

On account of his threat to disseminate information discrediting the applicant if he failed to keep his promise to appoint him as an adviser ( see paragraph CARDINAL above ) , PERSON was convicted of having , for his own benefit and “ by means of mental coercion , required a civil servant or person in a position of public authority to carry out or refrain from certain actions ” ( LAW ) . He was fined CARDINAL NORP litai , equivalent to MONEY ( judgments of the GPE City DATE ORG of DATE , ORG of DATE , and ORG of DATE ) .

ORG has jurisdiction to review the constitutionality and lawfulness of the acts of the President ( Articles CARDINAL , CARDINAL and CARDINAL of the LAW ) . Acts of the President cease to have legal effect if ORG rules that they are in breach of LAW ( LAW ) .

Decisions of ORG have statutory force and are final ( LAW ) . The power of ORG to declare a legal act unconstitutional may not be circumvented by the subsequent adoption of a similar legal act ( section CARDINAL of LAW ) .

In addition , ORG may be called upon to determine whether certain acts of a president against whom impeachment proceedings have been instituted are in breach of LAW ( Article CARDINAL of the LAW ) . No appeal lies against the court 's conclusions ( section CARDINAL(CARDINAL ) of LAW ) . However , the final decision on the sustainability of allegations giving rise to impeachment proceedings is taken by the Seimas on the basis of ORG conclusions ( LAW of LAW ; see also below ) .

Article CARDINAL of the LAW provides that , in discharging their duties , the judges of ORG act independently of any other ORG institution , person or organisation , and are guided only by LAW .

Section CARDINAL of LAW provides that a judge of ORG may withdraw or be removed from a case if he or she , inter alia , is a relative of CARDINAL of the parties to the case or has publicly declared how it should be decided .

DATE LAW provides that the President of GPE is immune from any criminal liability while in office . However , LAW , he or she may be removed from office following impeachment proceedings , inter alia for a gross violation of the LAW or a breach of the constitutional oath . The decision is taken by the LAW ( LAW ) .

In accordance with Articles CARDINAL and CARDINAL of the Statute of the Seimas , impeachment is a parliamentary procedure aimed at determining the constitutional liability of the highest - ranking officials , such as the President of the Republic or members of parliament , for acts carried out while in office which undermine the authorities ' credibility . Impeachment proceedings may be initiated by CARDINAL of the members of the Seimas where such an official is alleged to have committed a gross violation of the LAW and/or a breach of the constitutional oath and/or is suspected of committing a criminal offence ( Articles CARDINAL and CARDINAL of the Statute of the Seimas ) . They are to be conducted in accordance with the rules of criminal procedure ( LAW ) .

Having received a petition for impeachment , the ORG sets up a special investigation commission , which sits in private ( LAW ) and hears evidence from the parties to the procedure , witnesses and experts , in accordance with the rules of criminal procedure ( LAW ) . It reports its findings to the LAW as to whether there are grounds to institute impeachment proceedings ( LAW ) . If the Seimas – sitting in public – considers that such grounds exist , it passes a resolution to initiate the proceedings , requesting ORG to determine whether the acts of the person indicated in the impeachment charges are in breach of LAW ( LAW and LAW ) . On the basis of ORG conclusions ( LAW ) , the ORG conducts an inquiry ( likewise observing the basic rules of criminal procedure ) and ultimately decides whether the person against whom the proceedings have been brought should be removed from office for a gross violation of the LAW , on the basis of the available evidence and testimony ( Articles CARDINAL to CARDINAL and CARDINAL of the Statute of the Seimas ; Article CARDINAL and LAW ) .

In its ruling of DATE , in which it set out its conclusions in case no . CARDINAL ( see paragraph CARDINAL above ) , ORG provided the following clarifications :

“ ... The provision of LAW of the LAW whereby decisions of ORG on issues within its competence are final and not subject to appeal also means that when deciding whether or not to remove the President from office , the Seimas may not reject , change or question ORG conclusion that specific acts of the President are ( or are not ) in breach of the LAW . No such powers are assigned to the LAW by the LAW . [ Such a ] conclusion ... is binding on the LAW in so far as the LAW does not empower it to decide whether ORG conclusions are well - founded and lawful ; only the [ Constitutional ] Court can establish that the actions of the President are ( or are not ) in breach of the LAW .

Under LAW , only the Seimas may remove the President from office for a gross violation of the LAW .

Thus , the LAW assigns the LAW and the ORG different functions in impeachment proceedings , and confers on them the respective powers necessary to discharge those functions : ORG decides whether specific acts of the President are in breach of the LAW and submits its conclusions to the LAW ( LAW , point ( CARDINAL ) , of the LAW ) , whereas the LAW , in the event that the President has committed a gross violation of the LAW , decides whether or not to remove him from office ( LAW ) ... Under LAW of LAW , the Seimas is empowered to decide whether to remove the President from office , but not to determine whether his acts are in breach of the LAW .

It should be noted that this constitutional provision whereby only ORG is empowered to decide ( through its conclusions on the matter ) whether specific acts of the President are in breach of the LAW represents a further guarantee for the President that his constitutional liability will not be incurred unreasonably . Thus , if ORG reaches the conclusion that the President 's acts are not in breach of the LAW , the Seimas may not remove him from office for a gross violation of the LAW ... ”

In addition to possible constitutional liability , a person removed from public office may incur ordinary liability ( teisinė atsakomybė ) .

According to ORG ruling of CARDINAL DATE on the compliance of LAW with LAW , “ the constitutional sanction applied in the context of impeachment proceedings is of an irreversible nature ” . In the same ruling ORG also stated that fair - trial principles applied in impeachment proceedings , meaning that the persons charged “ must have the right to be heard and a legally guaranteed opportunity to defend their rights ” .

Article CARDINAL of the LAW provides :

“ Any citizen of GPE who is not bound by an oath or pledge to a foreign State , and who , on the date of the election , is CARDINAL of age and permanently resident in GPE , may be elected as a member of the Seimas .

Persons who have not completed a sentence imposed by a court , and persons declared legally incapable by a court , may not be elected as members of the LAW . ”

As mentioned above , on DATE the Seimas amended LAW by inserting the following provision :

Following ORG ruling of CARDINAL May CARDINAL ( see paragraph CARDINAL above ) , the Seimas passed an amendment to LAW , to the effect that any official who had been removed from office following impeachment proceedings was disqualified from being a member of parliament .

The LAW further provides :

“ ... Newly elected members of the ORG shall acquire all the rights of a representative of the nation only after taking an oath before the Seimas to be loyal to GPE .

Members of the LAW who do not take the oath according to the procedure established by law , or who take a conditional oath , shall forfeit their parliamentary office ... ”

“ Any person who is a NORP citizen by birth , who has lived in GPE for DATE preceding the election , is DATE on DATE of the election and is eligible for election as a member of the Seimas may be elected President of the Republic .

The President of the Republic shall be elected by the citizens of GPE for a DATE term by universal , equal and direct suffrage by secret ballot .

The same person may not be elected President of the Republic for CARDINAL consecutive terms . ”

“ Any citizen of GPE who satisfies the conditions set forth in the first paragraph of Article CARDINAL and has collected the signatures of CARDINAL voters shall be registered as a candidate for the office of President .

There shall be no limit on the number of candidates for the office of President . ”

Article CARDINAL of the LAW provides :

“ The newly elected President of the Republic shall take office ... after swearing an oath to the nation in GPE , in the presence of the representatives of the people , namely the members of the Seimas , to be loyal to GPE and the LAW , to fulfil the duties of his office conscientiously , and to be equally just to all .

A person re - elected President of the Republic shall also take the oath .

The record of the oath taken by the President of the Republic shall be signed by him and by the President of ORG or , in the latter 's absence , by another judge of ORG . ”

Pursuant to section CARDINAL of LAW , the newly elected President takes the following oath :

“ I ( name and surname )

Swear to the nation to be loyal to GPE and the LAW , to observe and enforce the law , and to protect the integrity of NORP territory ;

I swear to fulfil conscientiously the duties of [ presidential ] office , and to be equally just to all ;

I swear to strengthen the independence of GPE , to the best of my ability , and to serve my homeland , democracy and the welfare of the people of GPE ... ”

DATE of the LAW provides that “ [ a]ll persons shall be equal before the law , the courts , and other ORG institutions and officials . ” LAW of the LAW states that the President “ shall grant citizenship of GPE in accordance with the procedure established by law ” .

Section CARDINAL(CARDINAL ) of LAW provides that the President may grant NORP citizenship by way of exception – that is , without applying the usual eligibility requirements – to foreign citizens of special merit rendering them worthy of becoming a citizen of GPE .

Articles DATE and CARDINAL of the LAW read as follows :

“ The right to initiate legislation in the NORP shall be vested in members of the Seimas , the President of the Republic and the Government .

ORG shall also have the right to initiate legislation . A PERSON may be brought before the Seimas by CARDINAL citizens with the right to vote , and the Seimas must consider it . ”

“ Within DATE of receiving a law passed by the Seimas , the President of the Republic shall either sign and officially promulgate the law , or shall send it back to the Seimas , with reasoned observations , for reconsideration .

If a law passed by the ORG is not sent back or signed by the President within the prescribed period , the law shall enter into force after it has been signed and officially promulgated by the Speaker of the Seimas .

The President of the Republic must , within DATE , sign and officially promulgate any laws or other instruments adopted by referendum .

If such a law is not signed and promulgated by the President within the prescribed period , the law shall enter into force after it has been signed and officially promulgated by the Speaker of the Seimas . ”

The relevant passages of ORG adopted by ORG ( “ the GPE Commission ” ) at its CARDINALst session ( DATE ) read as follows :

“ I. Principles of LOC 's electoral heritage

The CARDINAL principles underlying LOC 's electoral heritage are universal , equal , free , secret and direct suffrage . Furthermore , elections must be held at regular intervals .

Universal suffrage

Rule and exceptions

Universal suffrage means in principle that all human beings have the right to vote and to stand for election . This right may , however , and indeed should , be subject to certain conditions :

a. Age ...

b. Nationality ...

c. Residence ...

d. Deprivation of the right to vote and to be elected :

i. provision may be made for depriving individuals of their right to vote and to be elected , but only subject to the following cumulative conditions :

ii . it must be provided for by law ;

iii . the proportionality principle must be observed ; conditions for depriving individuals of the right to stand for election may be less strict than for disenfranchising them ;

iv . the deprivation must be based on mental incapacity or a criminal conviction for a serious offence ;

v. furthermore , the withdrawal of political rights or finding of mental incapacity may only be imposed by express decision of a court of law . ... ”

ORG , adopted by ORG at its CARDINALnd session ( DATE ) , reads as follows ( footnote omitted ) :

“ ... provision may be made for clauses suspending political rights . Such clauses must , however , comply with the usual conditions under which fundamental rights may be restricted ; in other words , they must :

– be provided for by law ;

– observe the principle of proportionality ;

– be based on mental incapacity or a criminal conviction for a serious offence .

Furthermore , the withdrawal of political rights may only be imposed by express decision of a court of law . However , in the event of withdrawal on grounds of mental incapacity , such express decision may concern the incapacity and entail ipso jure deprivation of civic rights .

The conditions for depriving individuals of the right to stand for election may be less strict than for disenfranchising them , as the holding of a public office is at stake and it may be legitimate to debar persons whose activities in such an office would violate a greater public interest . ... ”

NORP The term “ impeachment ” denotes a formal indictment procedure whereby the legislature may remove from office a head of ORG , a senior official or a judge for breaching the law or LAW . The purpose of impeachment is in principle to allow the institution of criminal proceedings in the courts against the person concerned , but in practice it does not necessarily produce such an outcome .

The legal systems of the majority of ORG member GPE with a republican system make specific provision for the impeachment of the head of ORG ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , “ the former GPE ” , GPE and GPE ) . Impeachment proceedings may be instituted on the following grounds ( for GPE , see paragraph CARDINAL above ) : breach of the LAW or undermining of the constitutional order ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , “ the former GPE ” ) ; high treason ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE ) ; breach of the law ( GPE , GPE ) ; an ordinary or serious criminal offence ( GPE , GPE ) ; or immoral conduct ( GPE ) .

In most of these republics , impeachment proceedings have no direct effects on the electoral and other political rights of a head of ORG who is removed from office . However , in GPE , if the Federal President is removed from office following impeachment proceedings , ORG may order the temporary forfeiture of “ political rights ” if there are particularly aggravating circumstances . Similarly , in GPE the special court with competence in such matters may , in addition to removing the President from office , temporarily deprive him or her of certain political rights ( general disqualification from standing for election for a period of DATE , prohibition from occupying certain positions for a similar period and revocation of orders and other honorary titles ) . In GPE and GPE , a person removed from presidential office as a result of impeachment proceedings permanently forfeits the right to stand for election as President but may be a candidate in any other elections ; in GPE he or she is barred only from standing in the presidential elections called as a result of his or her removal from office .


Alvina Gyulumyan;Corneliu Bîrsan;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria

The first applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . The second applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON . The applicants are siblings .

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

As part of the general restitution process by which confiscated land is returned to its previous owners ( or their heirs in title ) , the applicants became the owners of QUANTITY ( ha ) of forestry land . A title deed for CARDINAL ha was issued on DATE and CARDINAL for CARDINAL ha and QUANTITY . m was issued on DATE . These areas of land were included within the boundaries of FAC ( “ the national park ” ) by virtue of a governmental decision of DATE .

The applicants lodged an application with the forestry inspectorate to be granted approval for the exploitation of QUANTITY of timber , using the clear - cutting method ( “ metoda tăierii rase ” ) . Their request was approved on DATE . Subsequently they lodged a similar request with the management authorities of the national park . By letter of CARDINAL DATE their request was denied , with the reasoning that clearcutting was contrary to the legislation governing the management of protected areas .

The applicants lodged a complaint with ORG relying on the provisions of a ministerial order . The order provided that , until the adoption of a management plan for each protected area , some forms of felling were allowed in national parks .

By a judgment of DATE ORG dismissed their action as unsubstantiated . Their appeal on points of law was dismissed by ORG on DATE . The appellate court noted that , up to that date , no management plan had been adopted for the national park . Nevertheless , even if the authorities were at fault for not having adopted the said plan , which should have set conditions for the exploitation of forest applicable to that national park , the applicants could still seek compensation for the restrictions imposed on the use of their land , either on the basis of Government Emergency Ordinance CARDINAL/CARDINAL on the protection of natural areas and the conservation of natural habitats and wild flora and fauna ( “ the Ordinance ” ) or on the basis of common law .

NORP By letter of CARDINAL DATE ORG of ORG and Forests informed the applicants that only CARDINAL ha of their land was in a special protection area . The remaining surface of CARDINAL ha was in a buffer zone and no compensation was provided by law for this type of land . In seeking to exploit the forest resource on their land , the applicants were advised to follow the same procedure as the one they had already used : asking for approval from the forestry inspectorate and then from the management authorities of the national park .

LAW ( PERSON ) was adopted on DATE . It forbids in its LAW the use of the clear - cutting method in the national parks .

Government Emergency Ordinance no . CARDINAL/CARDINAL sets out in its LAW the different protected areas in natural parks and the different activities that are allowed in each of these areas . In the special protection areas , only scientific and educational activities and ecological tourism are allowed , provided that the latter does not require any facilities to be built . PERSON felling is prohibited in these areas but the owners can collect the wood and other resources that derive from ecological reconstruction and rehabilitation of the forest or from natural accidents . In the buffer zones , any tree cutting needs to be carried out in accordance with the restrictions set by the park ’s management plan and by the guidelines for forest management within protected areas . In addition , several other activities are allowed , such as ecological tourism or traditional use of renewable sources .

Article CARDINAL of the GPE provides the following :

“ ( CARDINAL ) NORP forestry land located within a protected natural area which is owned by private individuals [ ... ] , the owners [ ... ] shall receive compensation for complying with the restrictive provisions of the management plan for the relevant protected area . The mechanisms for submitting a request [ for compensation ] and for calculating and granting compensation shall be established by a government decision .

( CARDINAL ) Until the adoption of a management plan [ for their area ... ] , the managers of the relevant protected area have a duty to draw up a set of conservation measures , which may necessitate the granting of compensation , and to submit this information to ORG within DATE from the date of taking over the management of the protected area ... ”

Ministerial Order CARDINAL/CARDINAL of ORG , Forests , Water and the Environment allows some forms of tree felling in the buffer zones of the national parks , even before the adoption of a management plan for the park .

NORP The NORP Minister of Agriculture , Forestry and ORG and the Minister of ORG jointly adopted a ministerial order establishing the methodology for calculating the compensation to be paid to legal persons who own forest land subject to special protective measures . The order provides for compensation for restrictions on the use of forest land included in the special protection areas .

NORP The management plan for ORG was adopted on an unspecified date , in DATE at the earliest .


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

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

The applicant was a driver working for the NORP telecom at the time of the events . On DATE the applicant was arrested by gendarmes at FAC . The applicant claims that he had been beaten during his interrogation at FAC .

According to the medical report drafted and issued by a doctor at ORG on DATE , the applicant did not bear any physical signs of ill - treatment .

On DATE the applicant was transferred over to ORG where he was held for DATE . He alleges that during this time he was subjected to torture , insults and death threats .

On DATE the applicant was taken before a doctor at ORG for a medical examination . According to the medical report he did not bear any physical signs of ill - treatment .

On DATE , the applicant was brought before the Batman public prosecutor where he denied the statements he had given to the gendarmes . He claimed that he had been forced to carry supplies to the ORG because PERSON ORG had threatened his life and that of his children .

On DATE , the applicant appeared before ORG where he denied the statements he had given to the gendarmes and claimed to have signed his deposition under duress . The court ordered his release . The public prosecutor objected to this decision .

The applicant claimed that despite the court ’s order for release , he had been taken back to ORG and was subjected to constant beatings .

On DATE ORG Instance ordered the applicant ’s remand in custody .

According to the medical report of CARDINAL DATE the applicant did not bear any physical signs of ill - treatment .

On DATE the public ORG office at ORG filed a bill of indictment with the latter , accusing the applicant of aiding and abetting an illegal organisation . The public ORG office requested that the applicant be convicted and sentenced under LAW .

On DATE ORG , following the erratic behaviour of the applicant during questioning , ordered the transfer of the applicant to ORG in order to establish whether he was mentally fit . The applicant ’s representative claimed that the applicant ’s state of mental health had suffered as a result of the treatment he had received in custody .

On DATE the applicant was committed to ORG for treatment . According to the medical report drafted by the doctors at ORG , the applicant was diagnosed as suffering from an anxiety reaction .

On DATE ORG issued a report stating that the applicant was suffering from an anxiety reaction . He was released from the hospital DATE .

On DATE the applicant filed a petition with the ORG public ORG office requesting that the gendarmes at the Batman Gendarmerie Commandership be prosecuted for ill - treatment .

On DATE the public ORG office , after having heard a neurology expert , issued a decision of nonprosecution on account of lack of evidence . According to the doctor ’s testimony , it was impossible to determine at what date the applicant ’s disturbance commenced and that it was possible to have this kind of disturbance in healthy persons . Moreover the doctor concluded that similar symptoms could also be found in a football fan whose team had lost a match .

The applicant filed an objection with ORG against the decision of the public prosecutor . He stated that he had lost his mental health as a result of the ill - treatment he had been subjected to during his interrogation . He submitted that the decision of non - prosecution was given without an adequate investigation since the public prosecutor had not heard to some of the witnesses .

On DATE ORG , referring to the time elapsed between the dates of the alleged offence and that of the complaint , the medical report of DATE and testimonies of witnesses and that of the expert , dismissed the applicant ’s objection . This judgment was served on the applicant on DATE .

The criminal proceedings against the applicant were pending at the time of the application . No further information or documents were submitted in respect of these proceedings .

A description of the relevant domestic law at the material time can be found in GPE and others v. GPE ( nos . CARDINAL and QUANTITY , § § CARDINAL , ORG CARDINALIV ( extracts ) ) .