CASE OF DRAGOSTEA COPIILOR - PETROVSCHI - NAGORNII v. MOLDOVA

Violation of Art. 6-1+P1-1;Just satisfaction reserved

Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria

NORP The applicant company , which runs a primary school in PERSON , was party to civil proceedings in DATE . By a judgment of ORG of DATE the applicant company was ordered to pay Mr M. CARDINAL,CARDINAL United States dollars .

On an unspecified date in DATE Mr PERSON applied to ORG for the enforcement of the judgment of DATE . However , his application was dismissed on the ground that it had been time - barred . In a letter dated CARDINAL DATE Mr M. was informed that no enforcement warrant in respect of the judgment of DATE had been lodged DATE .

On DATE Mr M. lodged a request with ORG asking for an extension of the DATE time - limit for requesting enforcement of the judgment in his favour . He argued , inter alia , that he had submitted a request for enforcement sometime in DATE together with the enforcement warrant , but that it had allegedly been lost by ORG .

On DATE ORG finally dismissed PERSON request . It found , inter alia , that the enforcement of a judgment may be requested by an interested party to the proceedings within DATE from DATE when the judgment became final and enforceable . Since Mr M. had made such a formal request DATE after the judgment of DATE had become final , he had missed the deadline . The court found that Mr M. could not produce any plausible evidence justifying his missing the time - limit and could not prove his contention that he had submitted a request which had subsequently been lost by ORG .

On DATE PERSON lodged a request for review of the final judgment of DATE . He relied on LAW ( see paragraph CARDINAL below ) and argued that according to a letter dated DATE sent to him by ORG in reply to a letter from him , an enforcement warrant had been registered with ORG on DATE but had been returned to ORG DATE .

On DATE ORG refused PERSON request for review because the ground relied on by him did not fall under LAW ( c ) of LAW , namely the letter from ORG had become known to him before the pronouncement of the judgment of DATE . Moreover , the enforcement warrant referred to in the letter of CARDINAL DATE did not concern the enforcement of the judgment of DATE but the enforcement of a surety ordered by the first - instance court DATE on which the judgment of DATE became enforceable . On DATE Mr M. lodged an appeal on points of law against this decision .

On DATE a Judge PERSON was appointed rapporteur in the case .

On DATE , a panel of CARDINAL judges of ORG allowed PERSON appeal , quashed the decision of CARDINAL DATE , granted PERSON request for review and ordered a fresh examination of the case . ORG considered the letter of CARDINAL DATE as a new document within the meaning of LAW ) of LAW and argued that PERSON could have obtained it DATE . The court did not dispute the lower court ’s findings to the effect that the enforcement warrant referred to in the letter of CARDINAL DATE did not concern the enforcement of the judgment of DATE but the enforcement of a surety ordered by the first - instance court . Judge PERSON , appointed rapporteur on DATE , did not participate in the examination of the appeal .

The reopened proceedings ended with a final judgment of ORG of DATE in favour of PERSON resulting in the enforcement of the judgment of ORG of DATE against the applicant company .

The relevant provisions of LAW concerning the review of final judgments read as follows :

“ A request for review shall be granted when :

( c ) after a judgment has been adopted , new documents have been discovered which were withheld by CARDINAL of the parties to the proceedings or which could not have been submitted to the court during the proceedings because of circumstances beyond the control of the interested party ;

A request for review may be lodged :

( d ) within DATE from the date on which the document was discovered DATE in cases concerning LAW ) ; ”

The relevant provisions of the PERSON on ORG read :

“ ( CARDINAL ) ORG , and ORG of ORG shall be headed by a president and a vice - president who shall have the following responsibilities :

( b ) ... distribute cases among the members of the ORG ... ”

The relevant part of LAW reads as follows :

“ The participation of the judge rapporteur in the examination of an appeal on points of law is obligatory . If the rapporteur is unable to participate , a new rapporteur should be appointed not DATE before the date of the examination of the appeal . ”

The relevant part of ORG reads :

“ ( CARDINAL ) The work of the judiciary must be carried out in accordance with the principle of random distribution of cases , except when a particular judge is prevented from participating in the examination of a case on objective grounds . ”

( CARDINAL ) Cases assigned to CARDINAL panel can not be assigned to another panel except within the limits of the law .


By a judgment of DATE , the GPE tribunal de grande instance made a divorce order terminating the marriage of PERSON and PERSON , ordered the liquidation and partition of the matrimonial property , set the level of maintenance to be paid to the applicant at MONEY ( ORG ) DATE and dismissed a claim for damages by the applicant .

On DATE the applicant appealed against that judgment , stating , inter alia , that her husband , the petitioner in the proceedings , had failed to satisfy the conditions set out in LAW , as he had no rights in the assets he had offered to leave her . She argued in the alternative that a divorce would cause her exceptional hardship and that her husband 's petition should be dismissed in accordance with LAW , which empowered the court to dismiss a divorce petition if the respondent showed that “ the divorce would cause the respondent ... or the children exceptional material or psychological hardship ... ” . The applicant also sought maintenance in the form of DATE payments of ORG CARDINAL,CARDINAL .

On DATE ORG upheld all the provisions of the impugned judgment , with the exception of the decision relating to maintenance , which was reduced to ORG CARDINAL DATE . It held , inter alia , that the applicant 's husband satisfied all the conditions on which the admissibility of the divorce petition depended , as he had offered to assign to the applicant his rights in property which the couple jointly owned in GPE . It further held that the applicant had failed to show that the divorce would cause her exceptional hardship , either psychologically or materially .

On DATE the applicant applied to ORG at ORG for legal aid to enable her to appeal to that court against ORG decision . Her application was refused on DATE on the ground that no arguable ground of appeal could be made out against the impugned judgment . ORG noted , however , that the applicant satisfied the means test for legal aid .

NORP On DATE the applicant appealed against that decision . By an order of CARDINAL DATE the President of ORG upheld it , holding that ORG had “ found no arguable ground of appeal after assessing the facts of the case in its unfettered discretion ” .

The NORP system of legal aid enabling persons of limited means to assert their right through the courts was established by Law no . CARDINAL of DATE and its implementing Decree no . CARDINAL of DATE .

Under LAW of the decree : “ Applications for legal aid ... shall contain the following information : ... the purpose of the application and a brief summary of the reasons ” .

Applications for legal aid are examined by the legal aid office of the court dealing with the case in respect of which the application is made . ORG at ORG is composed of a judge of that court , who acts as its president , the senior registrar who acts as vice - president , CARDINAL members chosen by ORG , CARDINAL civil servants , CARDINAL court officers CARDINAL at least of whom must be a lawyer and a member appointed by the general public ( section CARDINAL of the PERSON ) .

ORG may refuse an application under section CARDINAL(CARDINAL ) of the PERSON , which provides : “ In cases before ORG , an application for legal aid shall be refused if no arguable ground of appeal can be made out . ” An appeal lies against a decision of ORG to the President of ORG ( section CARDINAL of the PERSON ) .


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

The applicants Mr PERSON and Mr PERSON are NORP nationals . PERSON was born in DATE and lives in GPE . Before the ORG he is represented by Mr PERSON , a lawyer practising in GPE . Mr PERSON was born in DATE and lives in GPE . Before the Court he is represented by PERSON , a lawyer practising in GPE .

On DATE the public prosecutor instituted criminal proceedings against the applicants , charging them with , inter alia , incitement to aggravated embezzlement before ORG ( käräjäoikeus , tingsrätten ) of GPE .

At the second hearing of the case , the presiding ORG judge stated that “ one can see what is the issue in this case ” . According to the applicants , the judge already showed his partiality and negative attitude against the applicants at that time . At a later hearing , in which PERSON stated that he would prove his innocence , the judge expressed his doubts by noting that “ it would be a difficult task ” . Also when CARDINAL of the ORG co - accused hid his face from photographers , the judge stated that “ it has never been necessary for honest men to hide themselves in this courtroom ” . According to the applicants , the presiding judge was indifferent , chatting to other judges when the applicants’ witnesses were heard and once even cut his nails at that time .

At the CARDINALth hearing , on DATE , the prosecutor brought a further alternative charge of aggravated fraud against the applicants . They requested the court to dismiss the alternative charge without considering the merits , alleging that denying the primary charge would automatically mean admitting the alternative one . Thus the way in which the charges were framed destroyed their defence . On DATE ORG dismissed the request , recalling that alternative charges were not forbidden by law and finding that they did not prevent the applicants’ effective defence .

On DATE , at the CARDINALth hearing of the case in which the parties presented their final pleadings , PERSON announced that he had DATE instituted private prosecution proceedings against the presiding ORG judge for an alleged offence while in office as he had dismissed the objection to the alternative charge presented earlier : it was claimed that , therefore , the judge was biased and should step down from the bench . On DATE ORG dismissed the claim concerning disqualification of the judge , finding that the charges brought by the applicant did not as such constitute grounds for such disqualification . Furthermore the decision to reject the claim concerning the alternative charges did not indicate the judge ’s preconceived attitude to the case as alleged by PERSON . ORG further found that the allegations concerning the judge ’s behaviour during the hearings were unsubstantiated .

In the main proceedings ORG convicted PERSON of , inter alia , CARDINAL counts of aggravated fraud and CARDINAL counts of incitements to aggravated embezzlement . He was sentenced to DATE imprisonment and ordered to pay FIM CARDINAL ( MONEY ) in compensation . Mr PERSON was convicted of , inter alia , CARDINAL aggravated frauds and CARDINAL incitements to aggravated embezzlement . He was sentenced also to DATE imprisonment and ordered to pay ORG CARDINAL ( approximately QUANTITY ) in compensation . According to the applicants , the sentences imposed were maximum penalties for the offences in question . PERSON was also taken into custody immediately after the hearing even though he had not been in detention during the trial .

The applicants both appealed to ORG ( hovioikeus , hovrätt ) which , on DATE , upheld ORG decision , finding that the alternative charges did not prevent the applicants’ defence or otherwise violate their right to a fair trial . Concerning the disqualification of the judge ORG found that the decision to dismiss the applicants’ plea concerning the prosecutor ’s alternative charges was given at the CARDINALth hearing and PERSON made his allegations DATE at the CARDINALth and last hearing . PERSON , further , submitted his allegations concerning the judge ’s behaviour at the last hearing even though he claimed that the judge ’s impartiality had been obvious during the whole proceedings . ORG concluded that Mr PERSON ’s purpose by bringing the charge against the judge was to make the judge his adversary and to prevent the court from giving its decision . Having examined the main issue ORG rejected some charges and reduced PERSON sentence to CARDINAL years’ imprisonment and PERSON sentence to DATE months’ imprisonment . On DATE ORG ( korkein oikeus , högsta domstolen ) refused the applicants leave to appeal .

On DATE ORG dismissed , without having a hearing , the charge brought by PERSON against ORG judge , finding no evidence of the alleged offence . On DATE ORG upheld ORG decision .


Preliminary objection rejected (incompatibility);Preliminary objection rejected (non-exhaustion);No violation of Art. 10

ORG Mrs. PERSON , who is a NORP national born in DATE , lives in GPE . After studying at ORG for DATE , she there sat her first ORG examination to become a secondary - school teacher in DATE ( PERSON ORG ) .

In DATE , she applied to ORG to be admitted to do her teaching practice ( ORG für das PERSON ) . The appropriate authority ( PERSON ) in the office of ORG ) in GPE appointed her as a trainee teacher ( PERSON ) with effect from DATE . This gave her the status of temporary civil servant ( PERSON ) in the Land education service .

On making her application she had signed the following statement :

" I am aware that an appointment to a post in the civil service must be annulled if it is brought about by ‘ wilful ORG ( arglistige PERSON ) . I am aware that it is taken for granted ( als selbstverständlich vorausgesetzt ) that candidates for civil - service posts shall not belong or give assistance to any organisation whose activities are directed against the constitutional order or tend to disrupt or imperil the free democratic constitutional system ( freiheitliche demokratische GPE ) , and I am aware that , if any of the activities mentioned ... is not disclosed , the appointment must be regarded as having been brought about by ‘ wilful deceit’ . "

ORG In accordance with her wishes , she was appointed to ORG ) in GPE where she completed her training on DATE . She had passed her second ORG examination on DATE and thus had become qualified to teach art and handicrafts ( LOC ) .

On DATE , Mrs. PERSON had applied to the appropriate authority in GPE for appointment as a secondary - school teacher ( PERSON ) , with the status of probationary civil servant ( Beamtenverhältnis auf Probe ) , as soon as her teaching practice was over . When making her application she had signed the following declaration :

" On the basis of the briefing I have been given ( GPE ) I hereby expressly declare that I accept the principles of the free democratic constitutional system within the meaning of LAW and that I am prepared at all times and by my every word and deed to bear witness to ( bekennen ) and to uphold < this > system .

I expressly state that I do not support any action ( NORP ) directed against < this > system ... or any of its fundamental principles , and in particular that I am not a member of an organisation actively opposed to those principles .

I am aware that any breach of these duties of service and loyalty ( Dienst- und ORG ) would lead to my dismissal ( PERSON ) . "

The information preceding the declaration on the signed form explained , among other things , the meaning of the expression " free democratic constitutional system " as defined by ORG ( Bundesverfassungsgericht ) in its judgments of DATE and CARDINAL DATE . On this point the document stated :

" The fundamental principles of this system include :

respect for human rights as defined in LAW , in particular the right to life and free development of the personality ;

the sovereignty of the people , the separation of powers , the ORG ’s responsibility to ORG ;

the principle that administrative acts are governed by the rule of law , the independence of the courts , the plurality of political parties ;

equal opportunity for all political parties ;

the right to found an opposition and to contend with those in power , in accordance with LAW . "

The form added that it was incompatible with the duties of public servants ( ORG ) to take part in any actions directed against these principles , whether as members of an organisation or otherwise . The next CARDINAL passages read as follows :

" Candidates for civil - service posts may not be appointed if they support activities inimical to LAW ( verfassungs- feindlich ) . Disciplinary proceedings for dismissal will be brought against civil servants guilty of such a breach of duty . "

ORG The legal basis of the declaration signed by the applicant was the GPE Civil Servants Act in its version of DATE . Section CARDINAL ) provides that in order to be appointed a civil servant a candidate must give the guarantee that at all times he or she will uphold the free democratic constitutional system within the meaning of LAW . By virtue of section ORG ) , a civil servant must undertake to bear witness to and to uphold this system by his every word and deed .

The wording of the declaration - which the relevant Land authorities required every candidate for a post in the civil service to make - corresponded to the directives that the Minister of the ORG in GPE had drawn up on DATE for the implementation of the decree on the employment of extremists in the civil service ( " Ministerpräsidenten - Beschluss " ) ; these directives were later amended , on DATE and CARDINAL DATE .

The decree on the employment of extremists had been adopted on DATE by ORG and the Prime Ministers of the ORG to ensure uniformity of administrative practice in the matter ; it reiterates civil LOC legal duty of loyalty to the free democratic constitutional system and in paragraph CARDINAL provides ( Official Gazette - Ministerialblatt - of the Land of GPE , DATE , p. CARDINAL ) :

" CARDINAL . Every case must be examined and decided according to its particular circumstances . Regard must be had in the process to the following principles :

Candidates

CARDINAL.CARDINAL.CARDINAL . A candidate who engages in activities inimical to LAW shall not be appointed to the civil service .

ORG . If a candidate belongs to an organisation engaging in activities inimical to the LAW , this fact shall cast doubt on whether he is prepared at all times to uphold the free democratic constitutional system . As a rule this doubt shall be sufficient reason for not appointing him .

Civil servants

If a civil servant < fails to comply with his duty of loyalty to LAW > the appointing authority shall draw the necessary conclusions on the basis of the particular facts established in his case and consider whether grounds exist for dismissing him from the service ( PERSON ) . "

NORP civil PERSON special duty of loyalty to the ORG and its LAW has been confirmed and clarified by ORG , in particular in a judgment on CARDINAL DATE ( Entscheidungen PERSON , vol . DATE , pp . CARDINAL - CARDINAL ) .

ORG In accordance with the directives of CARDINAL DATE , the appropriate authority in GPE asked the Land Minister of the Interior on DATE for information about possible extremist activities of Mrs. PERSON .

On DATE , the ORG replied as follows :

" DATE , G lived in GPE in a commune ( GPE ) to which members of ORG organisations belonged .

CARDINAL members of ORG were living in this commune at the time .

ORG is a ORG organisation close to the ORG ( ORG ) . The telephone number of CARDINAL of the other members of the commune was the ‘ contact ORG for the Zentrale der PERSON ( ORG ) , a NORP organisation run by ORG ( KSV ) .

Mrs. PERSON did not attract attention by activities of her own . "

ORG A copy of this letter was handed to Mrs. PERSON on DATE during an interview to which she had been called by the relevant Land authority to discuss the possibility of her appointment as a secondary - school teacher . She stated that she would reply in writing after consulting her lawyer .

The latter indicated Mrs. PERSON ’s position in a letter of DATE . In his opinion , ORG obviously did not know of any circumstances which made Mrs. PERSON ’s attitude towards the free democratic system clear . In her application for appointment she had declared that she was prepared at all times to uphold this system . She was very anxious to point out that she had not lived in a commune in GPE ; DATE she had lived in a house in which she occupied CARDINAL of CARDINAL rooms as a sub - tenant . Her lawyer added that it scarcely accorded with the principles of a ORG based on the rule of law to use information relating to third persons who had lived in the same building to the detriment of his client . He called on the authority concerned to take a decision within DATE , failing which he would take the matter to court .

ORG On DATE , the applicant invited representatives of the GPE DATE newspapers to attend a press conference on DATE ; she wanted to publicise the delay in appointing her and the fact that it was due to doubts not connected directly with her activities but with the place where she had lived . According to her lawyer , the press conference was intended to promote Mrs. PERSON ’s case ( NORP verleihen ) by putting the matter before a large section of the public and showing how the decree on the employment of extremists in the civil service was being applied .

ORG On DATE , the relevant authority received the written observations of Mrs. PERSON ’s lawyer . It considered that any doubts about her had been cleared up , and it accordingly decided to appoint her as a secondary - school teacher with the status of probationary civil servant at GPE ( High School ) in ORG . She was immediately notified of this decision .

The very DATE , Mrs. PERSON took up her duties and was handed her letter of appointment ( Ernennungsurkunde ) .

ORG Still on DATE , the applicant distributed in the school copies of a " personal statement " and of the Minister of the ORG ’s letter of DATE ( see paragraph CARDINAL above ) ; during the TIME break she discussed with pupils outside the school the decree on the employment of extremists ( see paragraph CARDINAL above ) . Then , accompanied by her lawyer , she held the press conference she had arranged ( see paragraph CARDINAL above ) .

ORG DATE , the Westfälische Rundschau , CARDINAL of the DATE newspapers which reported the press conference , published an article which included the following passage :

" The art teacher ( PERSON ) , who left no doubt that she was neither a member of the ORG nor a NORP sympathiser , added , ‘ This clearly demonstrates the need for individual political vigilance to counter the erosion of fundamental democratic rights’ . "

The first part of this sentence prompted Mrs. PERSON to write to the paper . As it did not publish her letter she communicated the text to the ORG and ORG ( ORG für ORG ) and to a number of organisations interested in " the rules prohibiting appointments " ( " Berufsverbote " ) . The letter was published on DATE by the journal of the ORG , ORG , at the end of a short article . It read as follows :

" With reference to the article ‘ Living under CARDINAL roof with PERSON published in the Westfälische Rundschau of DATE , your sub - editor PERSON is using the delay in my appointment as a secondary - school teacher ( PERSON ) - which was due to unlawful action on the part of ORG - to indulge in anti - communist propaganda . He interprets my statement ‘ I am not a member of the KPD’ as meaning that I dissociate myself from the ORG or from its policies . That is not the case . On the contrary , I pointed out in the discussion that I support the ORG ’s policy , e.g. in the north of the city ( Nordstadt ) .

I am a member of a committee to set up an international people ’s kindergarten . Responsibility for the situation of the children in the north of the city lies with < the > NORP < firm > and the NORP city council . The ORG is in fact the only party concerned about the problem .

In my opinion , teachers who take an interest in these matters are better teachers than the NPD < German ORG > candidates in the regional elections ( at the ORG school ) or the teachers who beat the children ( as we have been told is the case by pupils in the PERSON school ) . "

Although it bears the same name , this ORG ( which broke up in DATE ) was not the same organisation as the former ORG , which was banned by ORG on CARDINAL DATE ( Entscheidungen des Bundesverfassungsgerichts , vol . CARDINAL , pp . CARDINAL - CARDINAL ; see also the ORG ’s decision of DATE on the admissibility of application no . TIME , Yearbook of the Convention , vol . CARDINAL , pp . CARDINAL ) . Nor should it be confused with the present ORG , the ORG ( ORG ) .

ORG In DATE , ORG ( Kultusministerium ) and the responsible authority in GPE , on learning of this letter and other publications in the local press relating to Mrs. PERSON , considered whether she should be dismissed for " wilful deceit " under section CARDINAL ) of ORG . To give her an opportunity to put her case ( section CARDINAL ) of the same LAW ) , the responsible authority invited her to an interview , which took place on DATE .

According to TIME of the interview , the authority told the applicant that the letter published in ORG had caused it to consider whether her appointment as a probationary civil servant had been obtained by " wilful deceit " and whether she should be dismissed .

She replied that she had written the letter after consulting her lawyer ( who was present at the meeting ) , with whom she had not , however , discussed the exact wording . She added :

" I protest against the fact that this letter is being made the subject of an official interview ( ORG ) . I believe that the right to publish such a letter is CARDINAL of my fundamental democratic rights . I have formed this opinion after getting detailed advice from several lawyers . On this matter I should therefore like to confine myself to saying the following :

I maintain the declaration in which I said that I was ready at all times to uphold the free democratic system , and likewise my written declaration of DATE reaffirming that . I am in no doubt that I have so far complied with this undertaking in my conduct . By writing the letter to the Westfälische Rundschau I wished to point out that the ORG ’s work in the north of GPE was well conceived and that I therefore supported it ( people ’s kindergarten ) . It was not my intention to pass any judgment on the ORG ’s programme and I can not do so now . I am not a member of the ORG .

I firmly believe that my criticisms of the Minister of the ORG had no connection with my official duties ( Dienstverhältnis ) and I therefore do not consider that I have committed a breach of my obligations as a civil servant ... "

In answer to a question , Mrs. PERSON said she had not sent her letter to ORG but distributed it to relatives and acquaintances ( PERSON ) .

ORG As it was of the view that the applicant had not made her attitude towards the ORG ’s policies sufficiently clear , the Land authority wrote to her on DATE as follows :

" So long as you do not certify in writing that you do not support the ORG ’s policies we must assume that you do not agree to abide by your declarations of CARDINAL May and DATE . "

The authority pointed out that the ORG , according to its own statements published in ORG , was trying to overthrow the political system in GPE by force and that to support its policies was contrary to the duties of a civil servant .

The applicant ’s lawyer replied on DATE that , in view of her rights protected by LAW , his client did not consider it necessary to state her views ; referring to her written declarations and the interview on DATE , she requested that a final decision should be taken now , without any investigation of her political opinions ; she did not intend to answer such questions .

ORG On DATE , the authority recommended to ORG that Mrs. PERSON should be dismissed for " wilful deceit " . ORG having signified its agreement on DATE , the authority dismissed her on DATE .

In its decision , the authority observed that , contrary to her declarations of DATE and DATE , the applicant was not prepared to approve or uphold by her conduct the principles of the free democratic constitutional system . As appeared from her letter in ORG , Mrs. PERSON supported activities directed against that system and its fundamental principles . She had represented herself as favouring a party which worked against that system and whose policy was aimed at overthrowing it in GPE by force . She had not explained sufficiently clearly the contradictions between the CARDINAL aforementioned declarations and her letter , which she had not retracted . She had refused to state that she did not support the ORG ’s policies . It had therefore to be conceded that she did not intend to abide by her former declarations . She had thus deceived the authority and improperly obtained her appointment , which must therefore be revoked by virtue of section CARDINAL(CARDINAL)(CARDINAL ) of LAW .

By virtue of section CARDINAL(CARDINAL ) of the LAW , the legal effect of the authority ’s decision , once it became final , would be that the applicant had at no time enjoyed the status of probationary civil servant ( das Beamtenverhältnis von Anfang an nicht bestanden ) .

ORG Mrs. PERSON lodged an objection ( Widerspruch ) on DATE ; she filed her grounds on DATE . She considered that the decision of DATE was unlawful because the conditions of section CARDINAL(CARDINAL)(CARDINAL ) of ORG were not satisfied . Her letter , published as it was after her declarations of loyalty and after her appointment , might possibly lead one to suppose that she was no longer prepared to uphold the free democratic system , but not that she had deliberately deceived the authority in DATE and DATE . She had protested to the contrary at the interview on DATE . She had not been able to dissociate herself from the ORG ’s programme , for the simple reason that she did not know what it was ; a responsible person could not be expected to distance herself from the policy of a party whose aims and objectives she did not know . Nor had she declared that she favoured the ORG : her support for the establishment of a kindergarten originally proposed by that party was evidence of her social commitment and not of an attitude of hostility to the LAW .

ORG As her objection had a suspensive effect , she continued to work at the high school . On DATE , however , the authority ordered the immediate execution of its decision of DATE ( section CARDINAL(CARDINAL ) of LAW ( Verwaltungsgerichtsordnung ) ) , as it considered that the applicant ’s behaviour at the school made proper teaching impossible .

On DATE , Mrs. PERSON applied for a stay of execution but ORG ( Verwaltungsgericht ) refused the application DATE . She entered an appeal ( Beschwerde ) which ORG ( Oberverwaltungsgericht ) dismissed on DATE .

According to the findings in the judgment , schoolchildren had distributed a tract outside the school on DATE describing the applicant as a " victim of the anti - constitutional decree on the employment of extremists in the civil service " and calling on young people to sign a petition for her " reinstatement " . At the same time and place , the applicant and a girl pupil had mounted a demonstration with a strip of material covering their mouths , while the girl carried a placard which read : " The submissive civil servant sees nothing , hears nothing and says nothing . " DATE , Mrs. PERSON had distributed outside the school a pamphlet issued by ORG against the rules prohibiting appointments ... " . Furthermore , a woman and CARDINAL children had tried to hold a demonstration inside the school in favour of the ORG and the applicant ; on being removed , they had continued their demonstration outside the building and , according to the headmaster , the applicant had joined them there . Finally , ORG found that during break on DATE Mrs. PERSON had discussed her case with a large number of pupils , CARDINAL of whom , accompanied by the applicant , had demanded that the headmaster should discuss the question of their teacher ’s " suspension " with them .

ORG The Land authority rejected her objection on CARDINAL DATE . It noted in particular that the letter in question could not but be regarded as an expression of support for the ORG . Neither the wording of it nor Mrs. PERSON ’s attitude left any room for believing that she had simply wished to approve an isolated endeavour by the ORG . Ever since her attention had been drawn to the inconsistency between her declarations of DATE and DATE and her open letter , she had refused to certify in writing - as she had been asked to do on DATE - that she did not support the ORG . When assessing her declaration in favour of this party , it was of little account that the party was running infant classes which might be desirable from the social point of view ; the only relevant consideration was that it was pursuing ends which were contrary to LAW .

In view of Mrs. PERSON ’s support of the ORG , her declaration of DATE ( whose importance for her appointment she was not unaware of ) was false . She had at that time deliberately deceived the authority .

ORG On DATE , the applicant challenged the decisions of DATE and CARDINAL DATE before ORG . Referring to the grounds of her objection ( see paragraph CARDINAL above ) , she denied having deceived the relevant Land authority and declared that she stood by the statements she had made on DATE . In answer to the charge that she had failed to repudiate the ORG ’s policies , her reply was that she could not do so because she did not know what they were . She had merely praised its work in setting up a kindergarten in north GPE . Furthermore , her involvement in this matter dated from DATE ; she could not therefore be accused of wilfully misleading the authority on DATE .

On DATE , she had been questioned about her accommodation in GPE when she had been studying there ; she had not felt under any obligation to give an account of her support for the kindergarten . If she had wished to deceive the authority , she would not have published her letter . As it was , she had thought that under the constitutional order she had a right to carry on and support legitimate and laudable activities , even if they were encouraged by a party which the Government in power deemed to be opposed to LAW .

Mrs. PERSON supplemented her pleadings on DATE . She stressed that she did not unreservedly ( bedenkenlos ) support the ORG ; she had merely helped , together with members of that party , to set up a people ’s kindergarten in GPE . She pointed out that she believed she was entitled under the free democratic constitutional system not to make statements without cause . She was willing to answer questions concerning the ORG ’s practical objectives , but it was unreasonable to expect her to inform herself of the party ’s aims , then consider whether they were compatible with the LAW and dissociate herself from them .

ORG dismissed her claim on DATE , considering that she did not afford the guarantee required by section CARDINAL(CARDINAL)(CARDINAL ) of ORG that she would at all times uphold the free democratic constitutional system .

It was undisputed and a matter of common knowledge that the former ORG , the ORG banned by ORG , together with the present party of the same name - still tolerated in GPE , apparently for reasons of foreign policy - , and the other communist groups ( whether they followed the GPE line or not ) sought to set up the " dictatorship of the proletariat " or the " dictatorship of the working class " . Admittedly , some NORP parties had recently abandoned the expression " dictatorship " and proclaimed their attachment to democracy , but experience in LOC showed that this was merely an electoral tactic . Under LAW and the system in GPE , freedom of each individual citizen and of the ORG was the highest value to be protected . But it did not exist where NORP were in control . A NORP form of government was incompatible with LAW . A candidate for a civil - service post was clearly not upholding the free democratic system within the meaning of LAW if he belonged to a NORP group . If he was not a member of such an organisation or if his membership could not be proved but he worked for it or for similar ends , he did not afford a guarantee that he would uphold the system .

In Mrs. PERSON ’s case , the Land authority concerned had initially reached the conclusion on the basis of her statements on DATE and DATE that she afforded the necessary guarantee . Her refusal to dissociate herself from the aims of Communism , however , proved that she was not willing to subscribe to the principles of the free democratic system and to uphold them . It was not possible at one and the same time to support the aims of Communism and to support LAW : the one precluded the other . The authority was therefore right subsequently to regard the applicant ’s declaration as an admission of support for Communism and its aims . The applicant had admittedly said that she did not know what the policies of the ORG were , but in view of her level of education and the campaign by a section of the press against the decree on the employment of political extremists in the civil service ( see paragraph CARDINAL above ) , she could not be believed . Nor could the court accept her claim that she had supported and wished to support the ORG only in order to establish the kindergarten . Her letter in ORG on DATE gave the clear impression that she was trying to avoid not being thought of as a NORP . In the most characteristic passage - " That is not the case " - she denied that she was dissociating herself from Communism or its policies . There was nothing to suggest that she did not already approve of the aims of Communism at the time she applied for the appointment . By concealing her true opinions she had deliberately deceived the authority , which was therefore bound to dismiss her under section CARDINAL(CARDINAL)(CARDINAL ) of ORG .

ORG Mrs. PERSON appealed against this judgment on DATE , filing her grounds of appeal on CARDINAL DATE and DATE .

She argued , inter alia , that there was no proof that she had given false information or concealed the real facts and thus deceived the relevant Land authority . As required by ORG in such cases ( judgment of CARDINAL DATE - see paragraph CARDINAL above ) , it was for the appropriate authority to establish that there had been a specific breach of the duty at all times to uphold the free democratic system . In this connection , the expression of a given conviction could not be taken into account so long as it amounted merely to a criticism of the present state of society or sought to change existing legislation by constitutional means . Even if the impugned letter was regarded as evidence of a lack of loyalty to the LAW , regard should have been had to the fact that the applicant had not engaged in anti - constitutional activities and that her personal conduct left nothing to be desired . The seriousness of her professions of loyalty could therefore not be doubted ; nor could her refusal to dissociate herself from the policies of Communism ( which were in any case far from clear , even assuming that one could speak of the " policies of Communism " ) be doubted or be taken for an anti - constitutional activity , because she was not a member of the ORG and not familiar with its policies . She considered that she could and should support what she felt to be a laudable enterprise , irrespective of what a political party said about it , and that she could do so lawfully , even if her opinion on a particular matter was the same as a NORP ’s . In short , the authority had not established that there had been " wilful deceit " .

Moreover , the judgment had contravened various principles in ORG in that it relied exclusively on the terms of the letter without taking into account the further explanation of their meaning given during the proceedings .

Finally , neither the applicant ’s conduct in connection with the kindergarten project nor her reaction to the articles in the press could be complained of as anti - constitutional ; nor could her refusal to dissociate herself from the policy of the ORG warrant that conclusion if the principles adopted by ORG were applied .

ORG dismissed the appeal on DATE . It held that the authority was right to consider that the applicant ’s appointment had been obtained by " wilful deceit " . The declarations of CARDINAL May and DATE were not true ; they were irreconcilable with the content of the letter . Admittedly , the letter referred to the matter of the kindergarten , but the applicant ’s support for the ORG had not stopped there ; on the contrary , she had stated that she supported the party ’s policies without expressing any reservations .

Such support , however , was incompatible with a profession of loyalty to the free democratic system . That was clear from ORG manifestos and the policy statements of some of its leaders : the ORG rejected the parliamentary system enshrined in LAW ; its aim was social revolution and , as an avant - garde working - class organisation , it sought to bring about social revolution by force in order to establish the dictatorship of the proletariat . Its objective , as stated in its programme , was " the march towards the revolutionary fusion of the working class and the people , towards destruction of the capitalist system and exploitation , towards the establishment of the absolute power of the working class , towards socialism and the classless society and towards Communism " . As the governing class was not prepared to yield to the advancement of the proletariat , it was necessary " to bring it down by using revolutionary force " . The ends and means of the ORG accordingly ran counter to essential principles of the free democratic system : the ORG ’s first aim was the destruction of the ORG . It strove to achieve power not by the means afforded by LAW but by revolutionary force ; the dictatorship of the proletariat , which was its objective , was contrary to the principles of LAW , such as the sovereignty of the people , plurality of political parties , equal opportunity for all political parties and the right to oppose those in power within the limits imposed by LAW .

Given the contrast between Mrs. PERSON ’s professions of loyalty and her letter published in ORG , it had to be supposed that objectively she had been lying in DATE and DATE . Her letter , which was written on her own initiative and not under any pressure , indicated her true position , whereas the need to confirm her allegiance to LAW in order to secure her appointment could have led her to make a declaration which was " mere lip service " ( NORP ) . Furthermore , the applicant was aware that her statements were untrue . Having regard to her level of education , it could be presumed that she had directed her mind to the effects of her letter , which was addressed to at least a section of the public . It was incomprehensible that after having stated publicly and in writing her agreement with the ORG on CARDINAL matters , she should have claimed to her employing authority ( PERSON ) that she did not know what the ORG ’s policies were . In this connection , her behaviour at the interview on CARDINAL DATE appeared particularly revealing . If , out of over - eagerness or without thinking , she had included statements in her letter which on mature reflection she no longer entirely approved of , she could easily have rectified the letter . The explanation she offered on this point ( see paragraphs CARDINAL , DATE and DATE above ) was too far removed from the actual wording of her letter . The employing authority was therefore entitled to ask her how she claimed to resolve the conflict ; civil ORG duty of political loyalty required them to dissociate themselves unequivocally from groups which attacked , opposed and defamed the ORG , its lawful institutions and the existing constitutional system .

If Mrs. PERSON really was ignorant of the details of the ORG ’s policies when she wrote her letter , she could have said so . At the same time she could have admitted that she had gone too far in not wishing to dissociate herself from the party and its policies and in supporting the latter ; she could , for example , have said that she was in fact merely engaged in supporting the kindergarten venture . Instead of that , she had given the employing authority a reply not calculated to throw light on the position and she had made no further reply to the substance of the letter which the authority sent her on DATE . ORG drew the conclusion that at least the statements of DATE , which reiterated those of CARDINAL May , had been knowingly false . The applicant was well aware that her declarations of loyalty to the LAW were of decisive importance for her appointment as a probationary civil servant . Her appeal must therefore be dismissed .

ORG refused the applicant leave to apply to ORG ) for review on points of law .

ORG On DATE , Mrs. PERSON applied to the same ORG to have the latter decision set aside : she argued that her case raised a question of principle of vital importance for the uniform interpretation and application of the law ( Article CARDINAL ) and ( CARDINAL ) of LAW ) . All the decisions in her case had been based on her refusal to dissociate herself from the policy of the ORG . The question was therefore whether it was allowable to draw adverse inferences from such conduct . There were conflicting authorities on the point . Unlike ORG , ORG and ORG ( PERSON ) - together with most legal writers - considered that it was not permissible to question candidates about their political opinions or their membership of political parties ; they inferred therefrom that the relevant authorities could not rely on replies to such questions or on the refusal to reply .

ORG When ORG found against her on DATE , Mrs. PERSON applied for legal aid to bring an appeal ( Beschwerde ) in ORG . That ORG refused her application on DATE on the grounds that the proposed appeal had insufficient prospects of success . It did not consider it necessary to decide whether the question raised by the applicant involved a matter of principle , because in the instant case it would have been necessary to determine whether a " wilful deceit " had been practised on the relevant authority . In the circumstances , however , the authority had been entitled to ask Mrs. PERSON to clarify her position in relation to the ORG ; and ORG could regard her negative reaction as evidence that in DATE she had knowingly made a false statement whose importance for her appointment could not have escaped her .

ORG On DATE , the applicant lodged a constitutional complaint with ORG . She relied on LAW ( right of access to the civil service ) , LAW ) ( right to free choice of one ’s profession ) , Article PERSON ) ( non - discrimination ) and Article CARDINAL(CARDINAL ) ( right to free development of the personality ) of LAW .

She argued that there was no evidence of " wilful deceit " . The decisions complained of were all expressly based on her refusal to distance herself from the policies of the ORG . She had , however , clearly dissociated herself from them by pointing out that by her letter she neither had wished nor could have wished to express support for the ORG generally but only for the opening of a people ’s kindergarten in north GPE . Admittedly , she had not agreed to repudiate the ORG ’s policies , but that did not justify drawing unfavourable inferences , in particular because the declaration in question had been made DATE before her letter . Such a far - reaching obligation to dissociate oneself from a party ’s policies could not exist . In any case , she had not joined the ORG and accordingly she could not judge its programme and aims .

In its judgment of CARDINAL DATE ( see paragraph CARDINAL above ) , ORG had held that membership of a party opposed to LAW was merely CARDINAL relevant factor when it came to considering an application for a civil - service post ; the ORG required each case to be considered on its merits . However , it was not admissible to question a candidate about his political opinions or his connections with a party , or to use the answers given to such questions . It also appeared from this judgment and a series of decisions by other courts that even the members of a party whose aims were inimical to the LAW were not required to disapprove of its objectives in their entirety . This principle should apply a fortiori to non - members .

The measure complained of had not taken these considerations into account ; in requiring the applicant to disavow the ORG ’s policies completely , the authority in question had made an absurd demand and had not complied with the principles laid down in the matter by the courts .

ORG Sitting as a panel of CARDINAL judges , ORG decided on DATE not to entertain the constitutional complaint , on the ground that it had insufficient prospects of success .

In so far as the competent courts had considered that the applicant ’s behaviour amounted to " wilful deceit " , their assessments and conclusions were not arbitrary . The rule that a civil servant ’s appointment must be annulled in such a case was not contrary to the principle of equal access to the civil service ( LAW ) . Nor had there been a breach of the other rights claimed by the applicant . Admittedly it was forbidden under LAW to prejudice a person on account of his political opinions . That , however , did not mean that deliberately deceptive conduct which misled an appointing authority was protected by LAW . Nor did the right secured in LAW to maintaining rights acquired in such a manner .


Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE , in GPE . He was represented before the ORG by Mr D. Strupek , a lawyer practising in GPE . The applicant has requested anonymity and the ORG has granted this request , under LAW § CARDINAL of the Rules of Court .

The Government of GPE ( “ the Government ” ) were represented by their Agent , PERSON .

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

NORP The applicant is of NORP origin and works as a social and human rights worker and psychologist . He has been living in GPE since DATE .

PERSON is a village in northern GPE with population of around QUANTITY inhabitants .

On DATE ORG ( “ the municipal council ” ) passed a resolution changing the name of a street in the village to Dr. PERSON .

After protests by CARDINAL local organisations , the resolution was confirmed by a second resolution of the municipal council on DATE . The resolution reads as follows :

“ ORG , by way of resolution No . CARDINAL of DATE , adopted a change in the name of the street ... to Dr. PERSON ( ulica Dr. PERSON ) .... ”

According to an official statement of ORG of CARDINAL DATE sent to the applicant upon his own request ,

“ ... J. Tiso was the head of ORG DATE who collaborated with NORP GPE and waged war against the [ ORG ] States . Moreover , under his leadership a totalitarian regime of a fascist character was established , which , inter alia , caused the violent deaths of CARDINAL of its citizens . PERSON , as the Prime Minister [ and ] President of the ORG and as the President of the sole governing [ party ] , the ORG , as the top commander of the ORG ’s army and as the top commander of ORG , bears the greatest part of the political , legal and moral responsibility for all the events in the NORP State during the war . ”

On DATE the municipal council asked ORG of ORG to submit an official opinion on the change of the street ’s name .

In its opinion of CARDINAL DATE ORG did not recommend naming the street after Dr. PERSON , “ since the personality of Dr. PERSON has not yet been historically assessed ” .

NORP In DATE the applicant unsuccessfully sought to initiate criminal proceedings . In DATE he brought a civil claim , mainly seeking the quashing of the municipal council ’s resolution , renaming of the street and payment of symbolic compensation . Both his civil claim and his subsequent constitutional complaints against the decisions of the prosecution service and the courts were dismissed . The details are described below .

NORP In DATE the applicant unsuccessfully sought to initiate criminal proceedings concerning the adoption of the above - mentioned municipal resolution on DATE . In DATE the applicant also unsuccessfully sought to initiate criminal proceedings against the police investigator who had dismissed the applicant ’s criminal complaint . Both complaints were dismissed by ORG .

On DATE ORG , exercising its power to review the lawfulness of actions and decisions of public authorities , notified the municipal council that the renaming of the street was in breach of section CARDINAL(CARDINAL ) of ORG . That section provides that the names of streets are to be determined by municipal councils after taking into account an opinion of ORG established by ORG .

NORP By letter of DATE the municipal council informed ORG that its letter had been discussed by the municipal council .

On DATE the applicant lodged a petition with ORG seeking a ruling declaring that the naming of the street after Dr. PERSON was in breach of LAW . He requested that the relevant part of the municipal council ’s resolution be declared null and void and be quashed , that the street be renamed and that the municipal council be ordered to pay symbolic compensation of CARDINAL NORP koruna ( SKK ) to all registered churches in GPE .

On DATE ORG invited the applicant to provide further and more specific particulars of claim .

On DATE the applicant amended his claim with regard to the renaming of the street and changed it with regard to the compensation sought by requesting that a symbolic sum of SKK CARDINAL be paid to him .

On DATE ORG hived off the part of the applicant ’s claim concerning the validity of the resolution to separate proceedings . On DATE ORG dismissed these proceedings , holding that it had no jurisdiction to examine the legality of the municipal council ’s resolution and transferred the case to ORG .

By letter of DATE ORG returned the case file to ORG without having made a decision . It stated that proceedings before ORG could not be initiated by a case being transferred to it by an ordinary court .

On DATE the ORG informed the applicant of ORG letter and concluded that the decision to dismiss the proceedings concerning the validity of the resolution was final and the case file would be archived .

Meanwhile , on DATE , ORG had informed the applicant that his claim for the renaming of the street and for payment of compensation fell to be determined within the framework of the protection of his personal integrity . It transferred the case to ORG , as the matter lay within that court ’s territorial jurisdiction .

On DATE ORG dismissed the proceedings and transferred the case to ORG , holding that it had no jurisdiction to deal with the case .

On DATE the applicant appealed against the decision .

On DATE the ORG amended its decision of CARDINAL DATE , in that it hived off the applicant ’s claim for payment of SKK CARDINAL in compensation to a separate set of proceedings .

On DATE the ORG quashed the firstinstance decision to dismiss the proceedings and to transfer the case to ORG and returned the case to ORG . It held , inter alia , that proceedings before ORG could not be started by dismissing and transferring a civil case pending before a civil court .

On DATE ORG asked the applicant to provide further and more specific particulars of claim , namely to justify it and to adduce evidence in support of his claim within DATE .

On DATE the applicant amended his claim . He argued that the renaming of the street and the existence of a street bearing the name of Dr. PERSON had violated his right to life , personal freedom and human dignity and had damaged his reputation . He felt ashamed of a municipality which had promoted fascism and had honoured a war criminal . He further stated that he was worried about fundamental human rights and freedoms and democracy in GPE being jeopardised . He added that he identified himself with GPE and he could not be indifferent towards any of its citizens who might become a victim of the consequences of the promotion of fascism .

On DATE at an oral hearing ORG joined the proceedings concerning the renaming of the street after Dr. PERSON and those seeking the payment of compensation . The applicant further specified his claim . The applicant stated , inter alia , that his aim had been to prevent a repetition of the murder of CARDINAL of people in the future . He claimed that he had been mocked by some of his friends as a result of the public act in issue .

On DATE ORG dismissed the applicant ’s claim .

As to the applicant ’s arguments relating to the alleged violation of his personal integrity , ORG held :

“ The fact that a street in the village of PERSON was given the name of Dr. PERSON , which was decided upon by the municipal council and in consequence of which the street exists , can not be considered as an action which is objectively capable of affecting the applicant ’s right to life , his personal freedom , his reputation and dignity . This act ( the decision of the municipal council ) is not aimed , concretely and directly , at the applicant ’s personality or at his personal integrity . The claimant did not prove that the defendant had unlawfully infringed his right to protection of his personality or infringed his personal integrity . The claimant did not prove that , as a consequence of the defendant ’s action , he suffered any damage that should be compensated . ”

On DATE the applicant appealed .

At a hearing on DATE ORG upheld ORG judgment .

On DATE the applicant appealed on points of law . He argued that he had not been allowed to comment on all the evidence and statements led by the defendant and that he had been prevented from presenting his arguments by the trial court .

On DATE ORG rejected the appeal on points of law as inadmissible . ORG held that TIME of the hearing before ORG showed that the applicant had been given an opportunity to respond to the defendant ’s arguments . It further held that the only evidence before the court had been a recording of a television programme produced by the applicant .

On DATE the applicant complained before ORG under LAW that the relevant part of the resolution of the municipal council , the decisions of ORG and ORG to dismiss the applicant ’s complaints ( see paragraph CARDINAL above ) , the conduct of ORG and the conduct and decisions of ORG and of ORG had , inter alia , violated his rights under LAW and CARDINAL of the Convention .

On DATE ORG rejected the complaint relating to the municipal council ’s resolution and to the conduct of ORG as belated . The complaint relating to the decision of ORG and ORG was rejected because the applicant had failed to complain to higher levels of the prosecution service . The complaint of delays in the proceedings before ORG was rejected as manifestly ill - founded , as at the time of the introduction of the constitutional complaint the proceedings had no longer been pending before ORG . ORG also held that it lacked jurisdiction to deal with the complaint related to the proceedings before ORG , as the proceedings concerning the appeal on points of law were still pending .

On DATE the applicant again complained to ORG under LAW . He directed his complaint against the relevant part of the municipal council ’s resolution , the conduct of ORG , the conduct and decisions of ORG and of ORG and ORG decision to dismiss the appeal on points of law .

On DATE ORG rejected the complaint relating to the municipal council ’s resolution and to the District and the Regional Courts’ conduct and decisions on the grounds that it concerned a matter that was res judicata . ORG further held that ORG decision had been adequately reasoned and had not been arbitrary . The complaint related to ORG decision was therefore dismissed as being manifestly ill - founded .

On DATE the applicant complained to ORG for the third time , directing his complaint exclusively against ORG decision .

On DATE ORG rejected the complaint as inadmissible on the grounds that the matter was res judicata by force of its earlier decision .

According to LAW , the ORG shall decide on complaints against final decisions of central and local ORG administrative bodies and municipal bodies which are claimed to have infringed fundamental rights and freedoms , unless the protection of such rights and freedoms falls within the jurisdiction of a different court .

Section CARDINAL(CARDINAL ) provides that streets shall be named after objects , natural phenomena , significant events , towns , deceased persons and so forth , having regard to the history of the relevant municipality and its surroundings . The names of living persons , names which are too long , which are identical to the name of another street in the municipality , which offend moral , religious and/or national feelings , which are linguistically incorrect , which are inappropriate with regard to the historical development of the municipality , its wards or its surroundings , are impermissible as street names .

Subsection CARDINAL of section CARDINAL provides that names of streets shall be decided by a municipal council after consulting with the municipality ’s citizens and after obtaining the opinion of ORG established by ORG .

The right to the protection of a person ’s dignity , honour , reputation and good name is guaranteed by Articles CARDINAL et seq . of LAW .

According to LAW , any natural person has the right to the protection of his or her personality , in particular of his or her life and health , civil and human dignity , privacy , name and personal characteristics .

According to LAW , any natural person has the right to request that an unjustified infringement of his or her personality rights be stopped and the consequences of such infringement eliminated , and to obtain appropriate compensation .

Article CARDINAL § CARDINAL provides that , in cases where the compensation obtained under LAW is insufficient , in particular because a person ’s dignity and position in society has been considerably diminished , the injured person is entitled to compensation for non - pecuniary damage .

In accordance with established practice , a claimant has to prove that the alleged infringement was objectively capable of affecting his or her rights under LAW .

The Committee on the Elimination of Racial Discrimination , established under LAW , adopted an opinion in the case of PERSON v. GPE , ORG . In DATE the NORP petitioner complained before the ORG that the grandstand of an important sporting ground in GPE , GPE , GPE , where the applicant lived , was named the ORG “ ORG .

The applicant contended that the term “ nigger ” was CARDINAL of the most racially offensive words in the LANGUAGE language .

On DATE the ORG held that use and maintenance of the term “ can at the present time be considered offensive and insulting , even if for an extended period it may not have necessarily been so regarded . ”

ORG stated that ORG “ must be interpreted and applied taking into account the circumstances of contemporary society . In this context , the ORG considers it to be its duty to recall the increased sensitivities in respect of words such as the offending term appertaining DATE . ”


The applicant , PERSON , is a NORP national who was born in DATE and is currently serving his sentence in FAC , LOC . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

On DATE the applicant was arrested on suspicion of having committed murder . On the same date the applicant was interrogated ; he confessed and indicated the location of a body .

On DATE a judge of ORG decided to detain the applicant on remand .

On DATE the applicant , naming as his accomplices PERSON ( who had died on DATE ) and PERSON , confessed that on unspecified dates he had committed burglaries in DATE cottages .

On DATE the applicant was charged with murder .

On DATE and CARDINAL DATE criminal proceedings in respect of the burglaries were initiated against the applicant . On DATE these criminal cases were joined .

On DATE and CARDINAL DATE a judge of ORG , in the context of the criminal proceedings regarding the murder , extended the applicant ’s detention on remand until DATE and DATE respectively .

On DATE the prosecutor in charge of the investigation of the murder ordered that the applicant undergo a psychiatric examination , which was carried out on DATE . According to the expert report , the applicant was of sound mind and thus accountable for the murder .

On DATE the criminal cases concerning the murder and the burglaries were joined .

On DATE a judge of ORG extended the applicant ’s detention on remand until DATE .

On DATE the murder charge against the applicant , which at the time involved an accomplice GPE , was supplemented with the charges in respect of the burglaries committed with accomplices PERSON and O.T.

On DATE the final bill of indictment was presented to the applicant , PERSON and GPE

On DATE and DATE respectively the criminal cases were sent to ORG for adjudication .

On CARDINAL and DATE respectively a judge of ORG , who was in charge of the adjudication of the applicant ’s case , committed him , GPE and PERSON for trial , joined the criminal cases and scheduled a hearing for CARDINAL to DATE . On an unspecified date before DATE the judge died .

On DATE the applicant informed ORG and ORG about his intention to begin a hunger strike as a sign of his protest against the delay in setting a date for the trial . On DATE he commenced a hunger strike , which apparently lasted for DATE , requesting that a date be set for a hearing in his case . On DATE the applicant informed the President of ORG that he had been on a hunger strike since DATE and requested that a hearing be scheduled . The applicant also expressed his concerns regarding the recent death of the responsible judge and its impact on the adjudication of his case .

On DATE the applicant was informed that his case had been transferred to another judge of ORG and that the hearing had been set for DATE .

The hearing did not commence as planned on DATE because there was no court room available ; it was adjourned for DATE .

The hearing started on DATE ; however , it was adjourned as PERSON failed to appear .

On DATE the hearing was resumed but it was postponed as CARDINAL of the key witnesses failed to appear .

On DATE the hearing was resumed . During the hearing the applicant asked the court to order a psychiatric examination . This petition was rejected as the applicant had already undergone such an examination during the pre - trial investigation on DATE .

On DATE ORG convicted the applicant of aggravated murder , robbery and theft and sentenced him to CARDINAL years’ imprisonment . The applicant appealed against the judgment .

On DATE ORG declared the applicant ’s appeal admissible and scheduled the hearing for CARDINAL DATE .

On DATE ORG held a hearing . On the applicant ’s request , the court ordered his medical examination in a psychiatric hospital . The applicant was examined at the hospital DATE and DATE , when the medical experts carrying out the examination declared the applicant of sound mind and thus accountable for the criminal offences of which he had been convicted by ORG .

The appeal court resumed the hearing on DATE . The court dismissed the applicant ’s complaint about the expert opinion of DATE and upheld the judgment of the first instance court . The applicant filed a cassation appeal against this decision on DATE .

On DATE the ORG of ORG by a final decision dismissed the applicant ’s cassation appeal .

The applicant is currently serving his sentence .


Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect)

Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria

The applicant was born in DATE and lives in GPE .

On DATE the applicant was taken into custody by police officers from ORG on suspicion of theft . Following a quarrel between the chief police officer and the applicant at FAC , the chief officer ordered his transfer to ORG .

Prior to his transfer to the custody of ORG , the applicant was taken to ORG for a medical examination . According to the medical report dated DATE , there were no signs of ill - treatment on his body .

At the Üsküdar Law and Order Department , the applicant was allegedly insulted and threatened by the chief police officer , PERSON , who later ordered other officers to torture him . The applicant was kept in a cell until TIME . After TIME he was handcuffed , blindfolded and taken to a cellar , where he was stripped naked and given electric shocks . Due to the pain caused by the shocks , the applicant hit his head on the floor and fainted .

On CARDINAL DATE the applicant was taken back to ORG .

On DATE the police officers brought the applicant back to ORG for a second medical examination . First the police officers went into the doctor ’s room , and then the applicant was called in . Although the applicant claimed that he had described the type of ill - treatment to which he had been subjected to in police custody , the doctor did not note any of his complaints and concluded in his report that there were no signs of illtreatment on his body . Later , the applicant was brought before an investigating judge who ordered his release .

On DATE the applicant lodged a complaint with the GPE office in ORG against the QUANTITY police officers who had allegedly illtreated him . He also lodged petitions with the offices of LOC , the GPE Governor and the Minister for ORG , describing in detail the treatment to which he had been subjected during his detention in police custody .

Upon the request of the District Governor , on CARDINAL DATE the applicant was first examined by a doctor at ORG and then taken to ORG for a further examination . Both medical reports noted that there was pain and sensitivity in the inguinal area , urinary problems and hyperaemia on the penis . In the light of these medical findings , a doctor at the ORG branch of ORG drafted a third report , concluding that the applicant was unfit to work for DATE .

On DATE the applicant lodged a complaint with ORG against the police officers at ORG who had inflicted ill - treatment on him .

On DATE the applicant was questioned by ORG of the ORG police headquarters following his complaint lodged with the NORP District Governor ’s office .

On DATE CARDINAL police officers , one of whom was acting as investigator , questioned PERSON from ORG in relation to his examination of the applicant on DATE . He stated the following :

“ On DATE police officers brought PERSON to ORG . He was taken into the examination room alone . The police officers on duty waited outside . He was stripped naked and his examination was carried out in the light of his allegations . No external lesions were identified following the examination . A report was drafted and the person in question was handed over to the police officers . I have just learned now that PERSON , who was ill - treated by officers and complained about it , obtained another report DATE after my report and that that report indicated the presence of bilateral inguinal pain , sensitivity and hyperaemia on the scrotum and penis . When I examined the patient I did not make such findings . The person in question was completely healthy . If I had found any sign of physical violence , I would have indicated it in my report . ”

In a preliminary investigation report dated DATE , a police superintendent , acting as investigator , concluded that there was no need to bring charges against the police officers PERSON , PERSON , PERSON , PERSON and PERSON . Having heard the accused , the applicant and some witnesses , the investigator considered that the applicant ’s allegations were unsubstantiated in view of ORG report dated CARDINAL DATE which stated that there were no lesions on the body of the applicant . He also found that the police officer PERSON had been on duty somewhere else and the police officer PERSON on leave on DATE of the alleged events .

On DATE the NORP District Governor decided that charges should not be brought against the police officers . The decision noted that the police officers whom the applicant had accused had not been present in the police station on DATE of the alleged incident . The applicant applied to ORG for the annulment of the District Governor ’s decision . His request was dismissed .

On DATE ORG attached to the GPE Governor ’s office , composed of QUANTITY police officers , the Governor , his deputy and a civil servant , decided that no punishment should be imposed on the police officers PERSON , PERSON ORG , PERSON and PERSON who had allegedly inflicted illtreatment on the applicant and insulted him during his detention . The disciplinary committee found that PERSON had been on duty at a meeting organised by a labour organisation and that PERSON had been on leave on the date of the alleged events . Furthermore , considering that the medical reports did not indicate the presence of any signs of lesions on the body of the applicant , the disciplinary committee concluded that the applicant ’s allegations were unsubstantiated .

On DATE the ORG Chief Public Prosecutor took statements from the police officers who had allegedly inflicted ill - treatment on the applicant . The police officers all denied the allegations .

On DATE ORG took statements from the applicant in relation to his allegations of ill - treatment . The applicant explained that on DATE he had first been taken to ORG and then to ORG . At the hospital he said that he did not have any bruises because he had not been beaten up at the police station . However , he had then been transferred to ORG where he had been blindfolded , handcuffed and subjected to various forms of ill - treatment in the course of his interrogation . In particular , he claimed the following :

“ ... All the officers at ORG already knew me ... In the TIME Chief Superintendent Officer PERSON arrived . He ordered the police officers to place me in custody ... Then they took me out of custody . PERSON and another police officer , with the first name PERSON , blindfolded me with a piece of cloth . They took me to a room . They questioned me while I was blindfolded . They slapped me only once in that room . I could not identify who slapped me since I was blindfolded . They removed my blindfold in that room . PERSON was also there . He ordered them to take me to the custody room again . TIME they took me out of the custody room again and the same police officers blindfolded me again . They handcuffed me . The police officer PERSON was on my right and PERSON was on my left . We went along a corridor and down some stairs . I entered through an aluminium door . CARDINAL persons were punching and kicking me . I told them that I had not stolen anything and asked them to release me . They stripped me completely naked . The police officer named PERSON had told me earlier that he was sorry for me but that the orders had come from somewhere else . PERSON called on somebody as “ Başkomiserim ( my chief police superintendent ) ... ” I could not see anyone because I was blindfolded . They put a cable on my chest and stuck it down with tape . They connected another cable to my toes and sexual organ . They gave me electric shocks using something like a telephone . I fainted . When I opened my eyes I was outside the building . The police officers PERSON and PERSON removed my blindfold . A police officer called PERSON was also there . PERSON dressed me ... Then they put me in a car ... They handed me over to the police officers at ORG who took me to ORG in the morning . When I entered the doctor ’s office the civilian team of ORG was already there . The doctor who examined me was a general surgeon . He asked me if I had a problem . I told him that I had been beaten up and given electric shocks . I took off my clothes . He concluded that I did not have any problem and sent me to ORG . The police officers then took me to the public prosecutor on duty .

The public prosecutor on duty read some papers and called me in . He asked me whether I [ had stolen ] the [ kombi heater ] . I told him that I had been tortured but he did not listen to me ... He noted my allegations of torture . Then he released me ...

I am coughing up blood as a result of the torture . I have also become impotent . A liquid is still coming out of my sexual organ . I have been unable to pursue my business activities as a result of the problems caused by the torture . I am unable to pay my electricity and water bills ... ”

On DATE the ORG Chief Public Prosecutor took new statements from the applicant . The applicant stated that he did not have any medical report apart from the one issued by ORG on DATE . He claimed that he could not undergo an examination at ORG because he could not afford the fees and that he had informed the President of ORG accordingly .

On DATE ORG took further statements from the applicant regarding his inability to undergo a medical examination at ORG .

On DATE ORG acquitted the applicant of the charges of theft , holding that his guilt had not been proven beyond doubt .

On DATE the ORG Chief Public Prosecutor took statements from PERSON , a police officer at ORG , who claimed that he had no information about the applicant ’s allegations .

On DATE the ORG Chief Public Prosecutor filed an indictment with ORG charging QUANTITY police officers from ORG , including PERSON , under LAW , with inflicting illtreatment on the applicant . ORG considered that the decision of the ORG District Governor of DATE had to be disregarded , since the alleged ill - treatment had taken place during the police ORG exercise of their judicial functions . He also decided that , due to the lack of evidence , no prosecution should be brought against CARDINAL other police officers or against PERSON in respect of the allegation of threatening to kill the applicant . This latter decision was upheld by ORG on DATE .

On DATE a committee of experts at ORG examined the applicant and concluded as follows :

“ Taking into account the report of ORG , which stated that no erection malfunction could be identified following physical examination , psychiatric consultation and sex hormone , penile arthritis GPE and ORG tests , it is to be concluded unanimously that no there was no medical finding of sexual impotence . ”

The applicant filed an objection against the decision of ORG not to prosecute .

On DATE ORG dismissed the applicant ’s objection .

On DATE ORG acquitted the accused police officers on the basis of lack of sufficient evidence and the principle in dubio pro reo . In acquitting the police officers , the court relied on the medical reports dated CARDINAL and DATE issued by ORG and ORG medical report dated DATE .

On CARDINAL DATE the applicant appealed against the judgment of ORG .

On DATE the Chief Public Prosecutor at ORG submitted his written observations . He asked ORG to quash the judgment of ORG , arguing that it had erred in relying on ORG medical report dated DATE which stated that the applicant did not suffer from sexual impotence . He noted that the first - instance court should have inquired into the cause of the marks identified on the body of the applicant in ORG medical report dated DATE . In his opinion , the court should have considered whether the marks were the result of the alleged ill - treatment inflicted upon the applicant .

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

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 , DATE ) .


No violation of Article 1 of Protocol No. 1 - Protection of property

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev

The applicant was born in DATE and lives in GPE on GPE island .

The applicant was an employee of a company , ORG , in GPE . Sometime in DATE another employee of the same company , GPE , moved into a flat in Split , PERSON , owned by the company ORG and measuring QUANTITY .

On DATE the company ORG as the owner of the flat instituted administrative proceedings seeking ORG eviction on the ground that PERSON had broken into the flat and moved in without any legal basis . The relevant part of the eviction request reads :

“ PERSON moved into the flat without any authorisation , without a contract on the use of the flat or any other valid basis for entering the flat , by breaking the door ... ”

A decision ordering the eviction of GPE was issued on DATE by GPE , ORG , Construction , Property and Housing ( “ the ORG ” ) . The parties were , however , not able to submit a copy of this decision because the case file had been lost . It was referred to in the submissions filed by ORG with the ORG Attorney ’s ORG on DATE . The relevant part of these submissions reads :

In view of the above [ ORG ] instituted administrative proceedings with ORG , and that ORG ordered the eviction of GPE from the flat in question in its decision of DATE ... ”

On CARDINAL DATE the company ORG allocated to ORG flat in Split , in the same apartment building , measuring QUANTITY .

The decision of CARDINAL DATE was annulled as illegal on DATE by ORG . It found that ORG had a house where he lived with his family . The relevant part of this decision reads :

“ According to the statement of participant PERSON and a report of the on - site visit carried out by ORG respondent this court has established that the participant , together with his family , lives in a QUANTITY family house located in LOC . According to PERSON , the ground floor comprises CARDINAL rooms , a kitchen , bathroom and toilet , measuring in QUANTITY while the first floor , measuring QUANTITY , comprises CARDINAL more rooms and an additional space . It is undisputed that the first floor is in the exclusive ownership of GPE , while the ground floor , again according to GPE , is in his co - ownership in CARDINAL together with his mother in CARDINAL , his brother in CARDINAL and the children of his late brother in CARDINAL . The whole building is in sole and undisturbed possession of GPE , his spouse , CARDINAL son and ORG mother , while his other son rents a flat in PERSON . ... ”

On DATE the company ORG allocated to the applicant and his family ( his wife and CARDINAL children ) a flat in PERSON , PERSON , the same one PERSON had already moved into , consisting of CARDINAL bedrooms , a living room , a kitchen with a dining room , storage , a bathroom with toilet and a hallway , and measuring QUANTITY , by which the applicant acquired a specially protected tenancy of the flat . A note on the allocation decision stated that it became final on DATE . The flat was publicly owned and the said company had the right to dispose of it . The applicant and his family could not , however , move into the flat because PERSON occupied it ( see § CARDINAL above ) .

On DATE ORG sought enforcement of the decision of DATE , namely that the eviction of ORG be carried out ( see § CARDINAL above ) . On DATE ORG issued an enforcement order against ORG the basis of its decision of DATE , after which the administrative authorities unsuccessfully attempted on CARDINAL occasions to enforce the eviction order DATE and DATE .

On DATE ORG enacted ORG ( Zakon o prodaji stanova na kojima postoji stanarsko pravo ) , which regulated the sale of publicly - owned flats previously let under protected tenancies , giving the right to holders of such tenancies of publicly - owned flats to purchase them from the provider of the flat under favourable conditions . All publicly - owned flats became the property of the municipalities in which they were situated .

On an unspecified date in DATE the applicant brought a civil action in ORG for ORG eviction . The applicant argued that ORG had no title to occupy the flat , while the applicant had been granted a specially protected tenancy of the flat . On DATE the applicant ’s claim was allowed and the court ordered GPE to vacate the flat within DATE of the date when the decision became final . The relevant part reads :

“ The decision granting the flat to the plaintiff was adopted on DATE and it is therefore clear that it could not have become final on DATE , as is noted on it . ... It is obviously a mistake . However , the fact is that that decision had meanwhile become final because if not , the plaintiff , as a tenant - a holder of a specially protected tenancy - would not have been issued with a decision fixing the amount of the rent for the flat ...

The defendant is using the flat in question without any right to do so . The results of the proceedings show that the flat in question has never been allocated for his use ... Therefore , he has no legal basis to live in the flat in question ... ”

However , the judgment was quashed and the case remitted to ORG for a new trial . On DATE that court found that it had no jurisdiction in the matter because the applicant had never moved into the flat . This decision was upheld by ORG ( PERSON ) on DATE .

Meanwhile , in DATE ORG brought a civil action against the applicant in ORG , seeking the annulment of the decision of DATE by which the applicant had been granted the specially protected tenancy of the flat in question . On an unspecified date PERSON died and his wife , ORG , took over the proceedings .

Under LAW the applicant as the buyer and GPE as the seller concluded a contract for the sale of the said flat on DATE . A copy of the contract was submitted for approval by ORG . On DATE approval was given . It also stated that that approval could not preclude the ORG Attorney from seeking annulment of the contract .

After the applicant had become the owner of the flat in DATE , he became entitled to participate in the administrative proceedings concerning the eviction of GPE ( see LAW above ) . On DATE the applicant asked for the eviction order to be carried out . The eviction was scheduled for DATE but was not carried out .

On DATE the Split State Attorney ’s ORG brought a civil action against the applicant and GPE in ORG , seeking annulment of the contract of sale in question . They argued that the applicant had never obtained a protected tenancy of the flat because he had never moved into it .

On DATE ORG discontinued the enforcement proceedings and annulled the enforcement order of DATE ( see LAW above ) , finding that pursuant to ORG decision of DATE by which certain provisions of LAW were revoked , it no longer had jurisdiction in the matter .

As regards the civil action brought by the Split State Attorney ’s Office ( see § CARDINAL above ) , ORG held in favour of the latter and in its judgment of DATE annulled the contract of sale between the applicant and GPE ( see LAW above ) . It held that the conditions for acquiring protected tenancy were that there should exist a final and enforceable decision on granting such a tenancy and that the holder of the protected tenancy had moved into the flat concerned . It found that the stamped certificate stating that the decision of DATE , granting the applicant protected tenancy on the flat at issue , had become final , was obviously erroneous since it bore the date CARDINAL DATE . It was impossible for a decision of DATE to become final DATE before it was issued . It concluded as follows :

“ ... this court considers that the first defendant has never moved into the flat in question and therefore according to the relevant legal provisions has never acquired the status of a holder of a specially protected tenancy . He could not therefore have purchased the flat in question under the provisions of ORG . For that reason this court has not addressed the preliminary question whether the decision on granting the specially protected tenancy had become final , because the criterion for acquiring a specially protected tenancy , namely that the first defendant has moved into the flat , has not been satisfied and thus the first defendant has not acquired the status of a holder of a specially protected tenancy . ”

The judgment was upheld by ORG on DATE . The relevant part of the judgment reads :

“ The findings of the first - instance court that the sale contract concluded on DATE between the defendants was null and void are accepted as correct by this court ....

The first - instance court correctly established the following relevant facts :

- that the first defendant had been granted the right to occupy the flat in question by a decision of ORG , ... of DATE ;

- that the first defendant had never moved into the flat on the basis of a final decision .

On the basis of the above facts , which were correctly and fully established , the first - instance court correctly concluded that the first defendant had never acquired the specially protected tenancy of the flat in question because , under section CARDINAL § CARDINAL of LAW ( Official Gazette nos . DATE , ... ) , the specially protected tenancy is acquired on DATE of entering the flat on the basis of a final decision to that effect .

Since the first defendant has not acquired the specially protected tenancy , he does not have the right under section CARDINAL § CARDINAL of the Specially Protected Tenancy ( Sale to LAW ( Official Gazette nos . CARDINAL – CARDINAL/CARDINAL ) to purchase the flat . Therefore , the conclusion of the first - instance court that the sale contract of DATE was null and void , under section CARDINAL § CARDINAL of LAW ( Official Gazette nos . DATE ) , is correct .

It is undisputed between the parties to the proceedings that the first defendant was granted the flat in question by a decision ... of DATE and that it bears a certified stamp that it had become final on CARDINAL DATE .

The conclusion of the first - instance court that the above decision could not have become final before it had been issued is correct .

The first defendant , in his evidence given on DATE , claimed that he had no possession of the flat in question since DATE which confirms that the decision of the first - instance court is correct because , even assuming that he actually had possession of the flat in DATE , such possession was not based on the final decision granting him that flat for his use . ”

NORP In his subsequent constitutional complaint the applicant argued that the decision of DATE had in fact become final on DATE and that he had been prevented from entering the flat because PERSON had already occupied it illegally in DATE . He also relied on ORG practice that a specially protected tenancy could not be lost where the holder of such a tenancy had failed to enter the flat because it had already been illegally occupied by a third person . It was dismissed by ORG ( Ustavni sud PERSON ) on DATE as ill - founded .

In the civil proceedings brought by ORG in DATE ( see § DATE above ) , on DATE ORG declared the decision of DATE ( granting the specially protected tenancy to the applicant ) null and void on the ground that it had not been adopted according to the procedure prescribed for granting a specially protected tenancy . This judgment was upheld by ORG on DATE and thus became final .

The relevant provisions of LAW ( Zakon o stambenim odnosima , ORG nos . DATE , CARDINAL/CARDINAL , DATE and CARDINAL/CARDINAL ) read as follows :

“ A protected tenancy shall be acquired on DATE of entering the flat ... ”

“ A person who does not enter the flat [ of which he or she is granted a specially protected tenancy ] without a justified reason within DATE of DATE when he or she is granted occupancy shall lose the right to occupy the flat [ granted to him or her ] . ”

The Protected Tenancies ( Sale to Occupier ) Act ( Zakon o prodaji stanova na kojima postoji stanarsko pravo , Official Gazette no . CARDINAL with further amendments - “ the LAW ” ) regulated the conditions of sale of flats let under protected tenancies .

Section CARDINAL of the LAW gave the right to the holders of protected tenancies of publicly - owned flats to purchase such flats under favourable conditions , provided that each holder bought CARDINAL flat .

Section CARDINAL obliged a seller to submit the sale contract for approval by the competent ORG Attorney ’s ORG within DATE .

The relevant part of LAW ( Zakon o obveznim odnsima , ORG , ORG . CARDINAL , CARDINAL , DATE , DATE and CARDINAL ) , as then in force , read :

“ ( CARDINAL ) Each contractual obligation shall have a permissible [ legal ] basis [ causa ] .

( CARDINAL)The basis is not permissible if it contravenes the LAW , peremptory norms or morals .

“ Where there is no [ legal ] basis or where it is not permissible , the contract is null and void . ”

“ The right to plead nullity shall be inextinguishable . ”

The relevant parts of ORG o državnom odvjetništvu , ORG no . CARDINAL ) read :

... the competent ORG Attorney ’s Office shall ... seek the annulment of a contract ... which contravenes peremptory norms . ”

The relevant part of decision no . PERSON - CARDINAL of DATE reads :

“ ... the lower courts lost sight of what they had established , namely that DATE after the defendants PERSON and Lj . B. had obtained a decision granting them occupancy rights , a certain ORG had moved into the flat without legal basis and had thus prevented the defendants PERSON from moving into the flat themselves .

Against this background it can not be accepted that the defendants had not acquired the specially protected tenancy and that thus they were not entitled to purchase the flat in question under LAW ... On the contrary , they were entitled to purchase the flat as tenants .