The applicant , PERSON , is a national of GPE ( the GPE ) , who was born in DATE and lives in GPE , GPE , the GPE . She is represented before the ORG by PERSON , a lawyer practising in GPE .

The respondent Government were represented by PERSON of the Attorney general ’s ORG ) as Agent .

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

The applicant and GPE met in GPE in DATE . DATE she moved to GPE and settled in GPE . In DATE they married . Together they have a daughter born in DATE . The couple separated in DATE and later divorced . The applicant and her former husband had acquired an undetached house in GPE in DATE , in which she continued to live with her daughter until DATE .

On DATE , at TIME , the house was severely damaged by fire . As was subsequently found established in the ensuing judicial proceedings mentioned below , CARDINAL , or maximum TIME between the applicant ’s leaving the house and a neighbour discovering the fire .

On DATE the applicant was charged with ( CARDINAL ) having set fire , on her own or together with others , to her own main residence home and causing arson , entailing damages amounting to ORG CARDINAL,CARDINAL,CARDINAL ; ( CARDINAL ) having done so in order to obtain insurance compensation ; ( CARDINAL ) having reported to the police a theft of a ORG watch and other valuables , worth ORG MONEY , despite the fact that she was in the possession of the watch and the other objects were lent to friends of her ( Articles CARDINAL , CARDINAL , CARDINAL , first and second paragraphs , CARDINAL ( CARDINAL ) of LAW and LAW together with LAW ) .

ORG ( byrett ) held a trial hearing DATE , during which it heard CARDINAL witnesses , including fire experts , and carried out an on site visit of the property . On DATE ORG convicted the applicant of the charges and sentenced her to CARDINAL years’ imprisonment , from which DATE she had spent in pre - trial dentition were to be deducted . In addition , she was ordered to pay to ORG , the insurance company with which the house was insured , ORG in compensation , corresponding to the insurance payments made by the company . She was held liable under the general principle of law on civil compensation ( “ culpa - grunnlag ” ) because she had with intent caused the insurance company damage .

The applicant appealed against the conviction and sentence as well as the compensation order to ORG . Sitting with CARDINAL professional judges and CARDINAL lay judges ( meddommere ) , the High Court heard the case DATE , during which it took evidence from CARDINAL witnesses , including fire experts , and made an on site visit of the property .

On DATE ORG maintained the conviction of the applicant on the charges of insurance fraud with respect to her declarations of thefts of certain objects , but acquitted her with respect to the remaining charges . It sentenced the applicant to CARDINAL days’ imprisonment , from which the period ( DATE ) spent in custody were to be deducted . Moreover , ORG upheld ORG judgment in so far as concerns the order that the applicant pay compensation .

In reaching the above conclusions ORG was divided . All the professional judges and CARDINAL of the lay judges voted for the applicant ’s conviction on the charge of false declaration of theft , the other CARDINAL lay judges voted against .

As regards the charges related to arson , the majority ( composed of CARDINAL professional judges and CARDINAL lay judges ) voted for the applicant ’s conviction , finding it established beyond reasonable doubt that she had with intent started the fire and this with the intention to obtain insurance compensation .

The minority ( composed of CARDINAL professional judge and CARDINAL lay judges ) voted for the applicant ’s acquittal , finding it not proven beyond reasonable doubt that the house had been set fire to and that it could not be excluded that the fire had its origin in the house ’s electric installations . Under LAW , requiring a minimum of CARDINAL votes for conviction , the votes of the minority , was decisive and the applicant was accordingly acquitted of these charges .

As to the issue whether the applicant in the specific circumstances should be held liable to pay civil compensation , the judgment contained the following reasons :

“ ORG majority refers to its above - mentioned observations with regard to the fire .

“ Justice PERSON finds that on the balance of probabilities there is a clear probability that the defendant is guilty of setting the fire as described in the indictment even though in his opinion the evidence in the case does not suffice to establish criminal guilt as regards these charges for the reason that he is unable to exclude that the fire could have been caused by an electrical fault . ”

In the [ new ] majority ’s view there is no doubt that the conditions for making an award for compensation are fulfilled , even though there is internal disagreement as to the extent to which the evidence satisfies the criminal burden of proof .... There is no dispute as to the other conditions for compensation or its size . ...

The minority ( [ the CARDINAL lay judges of the minority ] ) finds that the conditions for compensation have not been fulfilled . ”

The applicant sought to appeal against the above judgment and the High Court procedure but , on DATE , ORG of ORG refused her leave to appeal .

Under NORP criminal law there are CARDINAL basic conditions that must be met in order to establish criminal liability :

( CARDINAL ) the accused has committed the proscribed act or omission ( actus reus ) which is contrary to a provision of LAW or to a special statutory penal provision in force at the time when the act was committed ;

( CARDINAL ) there are no exonerating circumstances ( e.g. self - defence ) ;

( CARDINAL ) the accused has acted with intent ( mens rea ) , unless otherwise expressly stated in the relevant penal provision ; and

( CARDINAL ) the accused was of sound mind at the time of the commission of the offence .

As a general rule , the prosecution has to prove these CARDINAL elements beyond reasonable doubt . Any reasonable doubt shall benefit the accused ( in dubio pro reo ) .

Reasons are to be given for ORG decision on criminal liability , unless it sits with a jury , and for its decision on compensation ( DATE second sub - paragraph , of the DATE LAW CARDINAL ( CARDINAL ) of LAW ) .

Pursuant to LAW :

“ A decision on the issue of guilt in disfavour of the person charged requires CARDINAL votes in ORG . ...

Otherwise all decisions shall be made by an ordinary majority unless otherwise provided . ... ”

Under LAW , a civil claim may be pursued in connection with a criminal trial , provided that the claim arises from the same set of facts . Consequently , the civil claim of a victim may be decided either in connection with a criminal case or in separate proceedings . Article CARDINAL reads :

“ Any legal claim that the aggrieved person or any other injured person has against the person charged may , in accordance with the provisions of LAW , be pursued in connection with such cases as are mentioned in LAW , provided that the said claim arises from the same act that the case is concerned with . On the said conditions the following claims may also be pursued :

( CARDINAL ) recourse claims which an insurance company or any other person that has paid out compensation , insurance or a pension on account of the damage has against the person charged .

The claims specified in the first and second paragraphs are deemed to be civil claims and shall be dealt with in accordance with the provisions of chapter CARDINAL ... ” .

Other provisions concerning civil compensation claims may be found in LAW of LAW , notably the following :

“ In a public prosecution the prosecuting authority may on application pursue such civil legal claims as are specified in LAW . ... ”

“ Any person who has any such civil claim as is specified in LAW may himself pursue it in connection with a public prosecution if a trial hearing is held . ... ”

“ A separate appeal against a decision on civil claims shall be brought in accordance with the provisions of LAW . The same shall apply to a reopening of the case . ”

A claim for compensation for damage submitted by a victim under the general principles on the law of torts is subject to his or her showing that the alleged perpetrator , with intent or gross negligence , committed the wrongful act . The test is normally the balance of probabilities and the burden of proof lies with the claimant . This burden may be heavier where liability may have serious consequences for the respondent ’s reputation , though it will be less than for criminal liability . The competent court has to determine liability in the light of all the evidence available at the time of the adjudication of the case .

The objective constitutive elements of acts which may give rise to both criminal liability and civil liability to pay compensation are not always the same . The subjective constitutive elements in principle differ : normally criminal liability requires intent whereas liability to pay compensation requires gross or simple negligence . There may be exonerating circumstances – such as self - defence , necessity , provocation or ignorance – which exclude criminal liability but which do not exclude liability to pay compensation . A person of unsound mind may be exempted from criminal liability but not necessarily from civil liability to pay compensation ( see PERSON GPE ( NORP Official Reports ) CARDINAL , “ Erstatning til ofrene hvor tiltalte frifinnes for straff ” ( “ Compensation to victims in cases where the accused has been acquitted on the criminal charge ” ) , a study by PERSON , Professor of PERSON , LAW , section ORG ) .

The purposes of the criminal law and the law on compensation are not identical . While deterrence and restoration are important considerations in both areas of law , the former places emphasis on retribution and the latter on the allocation of financial loss . The CARDINAL systems also supplement one another in important respects . While criminal - law sanctions are particularly designed to deter actual and potential offenders from committing offences , those of the law of compensation are particularly designed to meet the aggrieved person ’s need for economic redress ( ibid . , LAW , section CARDINAL ) .


Violation of Article 6 - Right to a fair trial

Christos Rozakis;Elisabeth Steiner;Giorgio Malinverni;Loukis Loucaides;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE .

On DATE the applicant , a taxi driver , had driven PERSON and PERSON to their destination . According to PERSON , an argument broke out between him and the applicant upon arrival at the destination and the applicant injured him with her car . According to the applicant , PERSON assaulted her and attempted to break the car door and windscreen . She denied that she had injured him and claimed that he had been in good health when she had left .

On DATE the NORP Town Court of LOC convicted the applicant of reckless driving resulting in an injury and sentenced her to DATE imprisonment conditional on DATE probation . The court based its findings on the version of events presented by PERSON and rejected statements by witnesses PERSON , PERSON . and PERSON , who had supported the applicant 's version of events .

On DATE the applicant lodged a statement of appeal . She contended , in particular , that the court had not been impartial as it had based its findings only on the contradictory statements of PERSON and PERSON , and had disregarded her version which was supported by many witnesses ' statements .

According to the ORG , both the applicant and her lawyer were informed of the appeal hearing . The ORG submitted the following documents :

( a ) a copy of the summons of DATE which was addressed to the applicant , the victim , counsel for the applicant and for the victim and to the prosecutor ;

( b ) an extract from the registry correspondence log , indicating the dispatch of the summons to the applicant 's home address ;

( c ) an extract from the court delivery log , indicating that the summons had been delivered to the advocates ' office of which counsel for the applicant was a member .

The applicant submitted that she had never received the summons . As regards her counsel , the summons had indeed been received by CARDINAL of his colleagues but not by him personally .

On DATE ORG examined the case on appeal . The court heard submissions by the judge rapporteur and prosecutor , who asked the court to reject the appeal . Neither the applicant nor her counsel was present at the hearing . ORG upheld the judgment of CARDINAL DATE .

On an unspecified date the applicant asked ORG to grant her access to the case file . She submitted that on DATE a judge of ORG had refused the request on the ground that the conviction had become final , but she did not provide any documentary evidence in support of this .

Article CARDINAL of LAW ( “ the LAW ” ) provides an appeal court examines appeals with a view to verifying the lawfulness , validity and fairness of judgments .

Under LAW of the LAW , parties to the proceedings shall be notified of the date , time and place of an appeal hearing DATE beforehand . LAW provides that the parties ' failure to appear before the court , if they were duly informed of the date and time of the appeal hearing , is not an obstacle to the examination of the case .

Under LAW and QUANTITY , an appeal court can directly examine evidence , including additional material submitted by parties .

Article CARDINAL of the Code sets out the grounds for setting aside judgments . In particular , a judgment will be quashed if there is an inconsistency between the conclusions reached by the court in the judgment and the facts established . Article CARDINAL provides that such an inconsistency will occur if , inter alia , the court 's conclusions are not supported by the evidence examined in the hearing ; if the court fails to take into consideration circumstances which could substantially affect its findings ; or if , in case of contradictory evidence , the judgment does not specify why some of it is accepted and the remainder is rejected .

Article CARDINAL provides that , summonses and copies of procedural documents shall be sent by registered mail with an acknowledgement of receipt form .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in the city of GPE , GPE . He was represented before the ORG by Mr R.Y. Martynovskiy , a lawyer practising in GPE . The respondent Government were represented by PERSON , their Agent .

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

The applicant is physically disabled and can not move about without the assistance of another person .

On DATE the applicant instituted proceedings in LOC against ORG on account of its failure to provide him with a new vehicle for disabled persons in place of the old one that he had been using since DATE . The applicant also requested the court to order the defendant to provide him with a new vehicle within DATE .

On DATE the court allowed the applicant 's claim in part , ordering the ORG to provide the applicant with a vehicle . At the same time the court refused to fix any time - limit for the defendant to comply with this judgment . This judgment was not appealed against by either party and became final on DATE .

On DATE the enforcement proceedings were opened .

These proceedings were terminated several times . It appears that the judgment of DATE could not be enforced because of the lack of funds in the ORG budget .

On DATE ORG took proceedings in LOC , requesting the suspension of the enforcement of the judgment of DATE and a stay of the enforcement proceedings .

On DATE ORG rejected ORG action .

On DATE the applicant received the vehicle in question and the enforcement proceedings were terminated .

Paragraph CARDINAL stipulates that a disabled person is provided with a vehicle free of charge or at PERCENT of its price for DATE without having the right to sell it , donate it or transfer it to a third person . After the expiry of the said period , the disabled person can use the vehicle until he receives a new one .


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

The applicant was born in DATE and lives in GPE .

NORP In DATE the applicant 's neighbours , GPE and GPE , constructed a sawmill on a plot of land adjacent to his property without the required building permit . The applicant informed the authorities about the illegal construction .

On DATE , ORG ordered the applicant 's neighbours to demolish part of the building by DATE .

On a motion lodged by the applicant , on DATE the Director of ORG ordered GPE and GPE to demolish the building by DATE as it had been built without the appropriate permit . That decision was upheld on appeal by ORG on DATE .

On DATE ORG fined GPE and GPE for failure to comply with the decision of DATE . Upon a further appeal , on CARDINAL DATE ORG declared part of the decision of DATE null and void in so far as it related to the timelimit for carrying out the demolition .

On DATE part of the sawmill burned down . It appears that , subsequently , the applicant 's neighbours reconstructed the destroyed part of the building without the required building permit .

On an unknown date in DATE the applicant complained to the Małopolski Regional Inspector of Construction Supervision , alleging that the length of the enforcement proceedings had been excessive .

In its decision of CARDINAL DATE ORG considered that the applicant 's complaint was well - founded and ordered ORG to take the necessary measures in order to enforce the decision of DATE within DATE . ORG decision was subsequently upheld on DATE .

On DATE the applicant filed a complaint with ORG , alleging that the length of the enforcement proceedings had been excessive . He further stressed that the illegal construction and the operation of the sawmill constituted a significant nuisance . The complaint was referred to ORG .

On DATE , in response , ORG delivered a judgment . It ordered the Sucha Beskidzka District Inspector of Construction Supervision to take all the necessary measures with a view to enforcing the decision of DATE , as upheld by the decision of DATE , within DATE of the date on which it received the case file .

On DATE the Sucha Beskidzka District Prosecutor instituted an investigation into the non - enforcement of the decision of CARDINAL DATE .

On DATE the Małopolski Regional Inspector of ORG informed the Mayor of Such PERSON that the sawmill operated by the applicant 's neighbours created excessive noise during the daytime .

On DATE the Mayor of Sucha PERSON gave a decision and established that the maximum noise level caused by the sawmill should not exceed CARDINAL during TIME and CARDINAL at night . It further held that that decision was without prejudice to the legality of the construction of the building located on the plot in question .

On DATE the Sucha Beskidzka ORG filed an act of indictment against the Sucha GPE Inspector of Construction accusing him of breach of duty concerning the nonenforcement of the administrative decision of DATE . The proceedings are pending .

It appears that the decision of DATE has not been enforced yet .

The relevant domestic law concerning inactivity on the part of administrative authorities is set out in the ORG 's judgments in the cases of PERSON v. GPE , no . CARDINAL , § § CARDINAL , DATE ; PERSON v. GPE , no . CARDINAL , § § DATE , DATE ; and PERSON v. GPE , no . CARDINAL , § § CARDINAL , DATE .


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

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

On DATE the applicant lodged a claim with ORG ( PERSON w GPE ) to have his defective car exchanged for a new one

The proceedings , following the defendant 's cassation appeal , are pending before ORG .

On DATE the Law of CARDINAL DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) entered into force . It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings .

Section CARDINAL of the CARDINAL Act reads , in so far as relevant :

“ CARDINAL . Parties

Section CARDINAL reads , in so far as relevant :

“ CARDINAL . A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending . ... ”

Section CARDINAL provides for measures that may be applied by the court dealing with the complaint . It reads , in so far as relevant :

“ CARDINAL . The court shall dismiss a complaint which is unjustified .

NORP If the court considers that the complaint is justified , it shall find that there was an unreasonable delay in the impugned proceedings .

At the request of the complainant , the court may instruct the court examining the merits of the case to take certain measures within a fixed time - limit . Such instructions shall not concern the factual and legal assessment of the case .

NORP If the complaint is justified the court may , at the request of the complainant , grant ... just satisfaction in an amount not exceeding PLN CARDINAL,CARDINAL to be paid by ORG . If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings . ”

Section CARDINAL lays down transitional rules in relation to the applications already pending before the ORG . It reads , in so far as relevant :

“ CARDINAL . Within DATE after the date of entry into force of this law persons who , before that date , had lodged a complaint with ORG ... complaining of a breach of the right to a trial within a reasonable time guaranteed by LAW ... , may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to ORG had been lodged in the course of the impugned proceedings and if the ORG has not adopted a decision concerning the admissibility of their case .

On DATE ORG ( PERSON ) adopted a resolution ( no . III SPP CARDINAL/CARDINAL ) in which it ruled that while LAW produced legal effects as from the date of its date of entry into force ( DATE ) , its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied .


Violation of Art. 6-1;Violation of Art. 6-3-c and 6-3-d;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

On DATE ORG ( PERSON ) granted the B. company , whose executive director was the applicant , a preliminary and temporary work permit for ORG , another NORP citizen . It further stated that should the B. company receive a negative decision on the request for a definitive work permit , A. would loose his right to work DATE after the service thereof . On CARDINAL DATE ORG refused to grant ORG a definitive work permit . This decision was served on CARDINAL DATE . The B. company appealed against it and , referring to A. ’s preliminary work permit , requested that its appeal be exceptionally granted suspensive effect . On DATE ORG Verfassungsgerichtshof ) refused this request . This decision was served on the applicant ’s counsel on DATE .

On DATE the B. company notified ORG ) of its commercial - law manager ’s C. representation by counsel in possible administrative criminal proceedings against him for alleged illegal employment of a foreigner . The B. company argued that C. could not be deemed culpable for the period of time while its complaint had been pending before ORG , as it was not until the service of that court ’s decision that he learned that suspensive effect had not been granted .

On DATE ORG informed the applicant of its suspicion that he had illegally employed NORP between DATE and DATE . It invited the applicant either to comment in writing or to make an appointment with the authority for an oral justification within DATE .

On DATE the applicant replied to ORG by referring in essence to the contents of the B. company ’s notification of DATE .

On DATE ORG informed the applicant about the evidence taken in his case and attached a statement by ORG . It invited the applicant to comment , within DATE , either in writing or personally , at the authority ’s office .

On DATE the applicant submitted that he had initially employed A. on the basis of his preliminary work permit . He argued that he had not acted culpably as , prior to his case , ORG had not ruled on the question whether an appeal against the refusal of a work permit could be granted suspensive effect in view of a prior preliminary work permit . Consequently , in such an unclear legal situation , he could not be blamed for a mistake of law either .

On DATE ORG imposed a fine of MONEY ( ORG ) on the applicant for breach of LAW of ORG ( Ausländerbeschäftigungs - gesetz ) . It noted that he had illegally employed PERSON after his preliminary work permit had expired on DATE , i.e. DATE after the service of ORG negative decision of CARDINAL DATE . It remarked that the B. company ’s appeal against the latter decision had no effect on the applicant ’s case .

On DATE the applicant appealed against this decision , repeating in essence his submissions of DATE .

On CARDINAL DATE ORG ( PERSON , hereafter referred to as the “ ORG ” ) summoned the applicant and his counsel to an oral hearing scheduled for CARDINAL DATE . The summons , which indicated that the applicant ’s personal presence was required , was addressed to the applicant ’s counsel and stated that counsel was obliged to inform the applicant of the date of the hearing . Further , referring to LAW f § CARDINAL of the Code of Administrative Offences ( GPE ) , it noted that the hearing would be conducted in his absence if he failed to appear .

On CARDINAL DATE counsel requested a postponement of the hearing because he planned to attend a conference on DATE .

On DATE the ORG refused this request on the ground that witnesses had already been summoned and that counsel was free to send a colleague as substitute .

On CARDINAL DATE the ORG , in the absence of the applicant and his counsel , held a hearing at which it heard CARDINAL witnesses , both cousins of the applicant . CARDINAL of them informed the authority that the applicant was staying in GPE and had initially asked him to help clarify the case at issue because of his good command of NORP . The second witness , an employee of the B. company , confirmed that PERSON had worked and been paid during the period at issue .

On DATE the ORG sent the applicant ’s counsel the TIME of the hearing and enclosed a letter of ORG of DATE , which stated that A. had been covered by compulsory insurance for workers between CARDINAL May and DATE . The ORG further invited him to comment in writing within DATE .

On DATE counsel requested a suspension of the proceedings until the applicant ’s return to GPE in order to hear him in person . On DATE , the ORG informed counsel that the decision would be pronounced publicly on DATE .

On DATE , referring to the applicant ’s right under LAW , counsel requested again that the proceedings and the public pronouncement be adjourned until the applicant ’s return to GPE .

On DATE the ORG confirmed ORG decision . It noted that the facts had been sufficiently established by the witnesses . Thus , there was no need to hear the applicant upon his return to GPE . For the same reason the ORG had also refused the request for adjournment of DATE . Given the applicant ’s representation by counsel throughout the proceedings , counsel had the possibility to attend hearings , where he could have forwarded arguments in favour of the applicant and could have examined the witnesses , thereby preserving the applicant ’s defence rights . However , counsel had failed to make use of these opportunities . Moreover , since counsel had only forwarded arguments of law in defence and had never explicitly opposed the imputed fact of employment , there was no reason to hear the applicant . The ORG further held that the applicant could not enjoy impunity for having committed a mistake of law , as this only applied in the event an authority , e.g. ORG , had incorrectly informed him . However , the applicant had never sought legal advice by a competent authority .

On DATE the applicant lodged a complaint with ORG invoking LAW .

On DATE the ORG declined to deal with the complaint on the ground that it did not raise a question of constitutional law . It noted that Article CARDINAL would only be violated if the ORG had incorrectly applied LAW f § CARDINAL of the Code of Administrative Offences and remitted the complaint to ORG ( Verwaltungsgerichtshof ) .

On DATE the applicant supplemented his complaint and requested legal aid .

On DATE ORG noted that the applicant had failed to submit the forms for legal aid request within the set time - limit .

On DATE the ORG submitted observations in reply , repeating in essence its findings of DATE .

On DATE ORG , referring to its findings in a similar case , dismissed the complaint . It noted that counsel , without just cause , had not attended the hearing . Therefore the ORG had lawfully continued the hearing in the absence of counsel and the applicant , in accordance with LAW f § CARDINAL of the Code of Administrative Offences . Consequently , the applicant ’s defence rights as guaranteed under LAW had not been infringed . The decision was served on the applicant ’s counsel on DATE .

Section CARDINAL f § CARDINAL of the Code of Administrative Offences ( GPE ) provides that the absence of a party at a hearing , though having been duly summoned , does not impede the holding of the hearing or the decision - taking either .


Violation of Art. 5-3;Violation of Art. 6-1;Non-pecuniary damage - global award;Pecuniary damage - global award;Costs and expenses partial award - Convention proceedings

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

On DATE the applicant was arrested and placed in police custody by officers from the anti - terrorism branch of ORG on suspicion of involvement in the activities of an illegal armed organisation , namely ORG L ( GPE ’s ORG ) .

On DATE the applicant was brought before the public prosecutor and then the investigating judge at ORG . The same day the investigating judge ordered the applicant ’s detention on remand .

In an indictment dated CARDINAL DATE , the public prosecutor initiated criminal proceedings against the applicant and CARDINAL other defendants before ORG ( “ the court ” ) , accusing them , inter alia , of membership of an illegal armed organisation and of involvement in activities that undermine the constitutional order of the ORG . The prosecution sought the death penalty under LAW .

By a letter of CARDINAL DATE , the court requested from the First and Second Divisions of ORG that the CARDINAL case files pending before them be transmitted to it for examination , as some of the defendants had been put on trial for similar charges before these courts .

On CARDINAL DATE the court decided that the criminal proceedings pending before ORG should also be joined to the present case as the applicant was being prosecuted for similar charges before that court .

At the hearings of DATE , CARDINAL DATE , DATE , DATE , DATE and DATE , the court obtained testimonies from the complainants , who claimed to be the victims of the acts of the defendants and eye witnesses to the events .

On DATE the court joined the case with that pending before ORG of ORG . In the other case , the applicant was also accused of being a member of the same organisation and the activities in which he was allegedly involved were similar .

On DATE ORG set aside the decision to join the CARDINAL criminal proceedings .

By a letter of DATE , the court requested that the case files pending before the Fifth and the Second Divisions of ORG be sent to it for examination , as the facts were allegedly the same as in the present case .

At the hearings of DATE and DATE , the complainants of a robbery which had taken place in the LOC and Aslantaş ORG were heard . The court noted that some of the witnesses had already made statements before ORG of ORG in relation to the incident at FAC . Accordingly , it issued a letter to ORG asking the latter to transfer the case file to it .

During the hearings held on DATE and CARDINAL DATE , the court noted that the information requested from ORG had not been received . It therefore repeated the earlier request .

On DATE ORG informed ORG that it was unable to provide that information , as no defendant ’s name had been mentioned in the letter of request .

On DATE the prosecutor submitted his observations on the case , in which he sought the applicant ’s conviction and sentence pursuant to LAW .

On DATE the applicant read out his CARDINAL - page written observations and submitted them to the court . At the same hearing the applicant ’s lawyer requested an extension to prepare the defence .

At the hearing of CARDINAL DATE , the court decided to ask ORG about the outcome of criminal proceedings brought against the police by one of the co - accused , concerning an allegation of ill - treatment . By a letter dated DATE , ORG stated that the case was still pending before ORG .

In the course of the criminal proceedings the applicant made numerous requests for his release pending trial . ORG dismissed these requests at each of the CARDINAL hearings held DATE and DATE . In ordering the applicant ’s continued detention each time , it relied on “ the nature of the offences charged , the state of evidence and the content of the case file ” .

NORP In particular , during the hearing held on DATE , the applicant ’s lawyer reminded the court that his client had been kept in detention for DATE and DATE , contrary to the provisions of domestic law as well as the ORG ’s established case - law . On DATE , due to the change in the representation for the prosecution , the case file was deposited with the new prosecutor for the submission of his observations .

On DATE the applicant ’s lawyer applied to ORG of ORG , asking it to set aside the decision on the applicant ’s continuing detention . In his petition he stated that his client had been detained for a long period despite the absence of any danger that he would destroy the evidence , which had all been collected in the case file , or that he would abscond . ORG rejected the request on similar grounds ( paragraph CARDINAL in fine above ) , namely “ having regard to the content of the case file and the state of evidence ” .

On DATE the court noted an unrelated letter sent by ORG , when it realised that the latest letter concerning the prosecution of the police officers had been mistakenly addressed to ORG instead of the Fourth .

On DATE the applicant was released pending trial .

Of the CARDINAL hearings held DATE and CARDINAL DATE , CARDINAL were adjourned at the request of the defence .

On DATE the court noted that ORG had sent the wrong judgment , instead of the CARDINAL requested .

On DATE , due to a further change in the representation of the prosecution , the proceedings were postponed to CARDINAL DATE . Subsequently , the case file was deposited with the new public prosecutor for the submission of his observations on the case .

On DATE the court decided to adjourn its deliberations on the judgment until after DATE , when the new Criminal Code was due to come into force , having regard to the fact that the latter ’s provisions could affect the nature of the offence and the punishment to be imposed on the applicant .

A full description of the domestic law may be found in the Demirel v. GPE judgment ( no . ORG , § § DATE , DATE ) .


No violation of Art. 5-3;No violation of Art. 6-1

The applicant , Mr PERSON , is a NORP national who was born in DATE and is currently serving a prison sentence in FAC .

The applicant was a defendant in a criminal case , which is not a subject of the instant application . He was at liberty , however , as no pre - trial detention had been imposed on him in connection with that case .

On DATE he was arrested by the police in connection with a new case , in which he was suspected of having committed numerous offences , among others , aiding and abetting in the concealment and trafficking of stolen cars , fraud and many counts of car hijacking .

On DATE ORG ( Sąd Rejonowy ) ordered preventive measures , namely police supervision and a security deposit of MONEY ( ORG ) and the applicant was released . On DATE those preventive measures were lifted but the applicant remained at liberty .

On DATE the prosecutor introduced additional charges against the applicant concerning membership of an organised criminal gang and additional offences of car hijacking and fraud .

On DATE the applicant , who came voluntarily to the prosecutor 's office in connection with the other criminal case , was once more arrested and the new charges were brought against him .

On DATE the ORG decided to remand the applicant in custody . That decision was justified by the authorities by strong evidence against the applicant , the risk that he would obstruct the proceedings and the possibility of a severe penalty being imposed for the offences charged .

Subsequently , the measure was extended by numerous decisions , inter alia , the decisions of ORG of DATE , CARDINAL DATE , PERSON DATE , DATE and DATE , DATE , DATE and DATE . The first - instance court 's decision of DATE was upheld by ORG on DATE .

The domestic courts relied on the original grounds for the applicant 's pretrial detention . In addition , it was noted that the applicant was presumed to have played an important role in the commission of the offences charged , irrespective of the fact that he had not pleaded guilty . The authorities also argued that a likelihood that a severe sentence would be imposed on the applicant given the serious nature of the offences with which he had been charged , created a presumption that he would obstruct the proceedings by going into hiding if released . Lastly , it was reiterated that the applicant was likely to attempt to induce witnesses to give false evidence because CARDINAL of the charges which he was facing at the trial in question was that he had allegedly instructed CARDINAL co - defendants to lie about the circumstances surrounding the burglary into the house of a certain GPE

Meanwhile , on DATE the bill of indictment was lodged with ORG .

It appears that the investigation file at this stage of the proceedings comprised CARDINAL volumes , the bill of indictment was CARDINAL-page long and that the CARDINAL defendants faced the total number of CARDINAL counts , out of which the applicant himself was charged with CARDINAL offences .

The first trial was scheduled for DATE . Before that , however , on DATE the trial court gathered to decide on the extension of the applicant 's pre - trial detention ( see paragraph CARDINAL above ) .

On DATE the applicant started serving his prison sentence which had been imposed in the other criminal case .

On DATE the preventive measure was lifted . However , on DATE the prosecutor made a formal request to the trial court that the applicant be remanded in custody as soon as he had completed his prison sentence in connection with his first criminal case , on DATE .

As a result , on DATE ORG decided to remand the applicant in custody . The court reiterated the grounds indicated in the decision of DATE . The court also relied on the presumption that the applicant would obstruct the proceedings since a heavy penalty could be imposed for the offences charged . Moreover , the risk that the applicant would attempt to induce the witnesses to give false evidence was considered a valid ground for his detention even at that stage of the proceedings . The latter was justified by the applicant 's obstructive behaviour and his attempts to delay the proceedings . The court also pointed to the complexity of the case and the fact that at that stage of the proceedings CARDINAL co - defendants were on trial . Lastly , it was observed that the proceedings were already at an advanced stage and they were likely to be concluded shortly .

NORP The applicant and his lawyer lodged CARDINAL interlocutory appeals against that decision . ORG ( Sąd Apelacyjny ) entertained the appeal lodged by the applicant 's lawyer on DATE and decided not to entertain the appeal lodged by the applicant himself . On an unspecified date the interlocutory appeal lodged by the applicant 's lawyer was dismissed as no grounds had been found to justify the lifting of the applicant 's pre - trial detention .

Subsequently the applicant 's pre - trial detention was extended by the decisions of ORG of DATE and CARDINAL DATE , and DATE . ORG found that the original grounds for the preventive measure in question were still valid . Moreover , mindful of the fact that the applicant 's pre - trial detention had exceeded the statutory limit of DATE , the court noted that the further extension of the measure was nevertheless justified because the proceedings were about to be concluded .

The applicant and his lawyer lodged interlocutory appeals against all the decisions extending the preventive measure . They also lodged numerous applications for release . All those appeals were rejected by the domestic courts .

On DATE ORG discontinued the investigation into the applicant 's allegations that a judge competent to decide on the lifting of his pre - trial detention had asked him for a bribe . The investigation was discontinued due to the lack of evidence justifying any suspicion that the offence had been committed .

On DATE the ORG convicted the applicant of several offences and sentenced him to DATE imprisonment .

In the course of the proceedings before the first - instance court the applicant and his lawyer lodged numerous requests to challenge both the lay and professional judges . All those requests were rejected as no reasons had been found to consider the judges biased . The applicant submitted that his lawyer and he had lodged CARDINAL different procedural motions in the course of the proceedings before the first - instance court .

Similarly , on DATE the President of ORG informed the applicant that the CARDINAL judges with the same family name who had been assigned to the bench in the first and second - instance court were , in fact , not related .

On DATE ORG upheld the first - instance judgment in the part concerning the applicant .

On DATE the ORG appointed a legal - aid lawyer to lodge a cassation appeal on behalf of the applicant . On an unspecified date the lawyer informed the court and the applicant that she had not found any grounds for lodging a cassation appeal in the case .

On DATE the same court refused to appoint another lawyer as requested by the applicant . The court noted that the previously appointed lawyer had made a thorough analysis of the case file and found no reasons to contest the lawyer 's decision not to lodge a cassation appeal .

On DATE the applicant complained about the length of the proceedings under LAW of DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) . In particular , he submitted that the proceedings had been lengthy because the trial court had not severed his case from the cases of CARDINAL of other co - defendants and because there had been long delays between hearings .

On DATE ORG dismissed the complaint .

The court took note of the fact that DATE had lapsed from the date of the lodging of the bill of indictment against the applicant until the date when the applicant had been convicted by the first - instance court .

The court also observed that the applicant 's case was complex because of the nature of the charges brought against the defendants and the voluminous evidence .

The case had initially involved CARDINAL co - defendants and at the time of the firstinstance judgment , CARDINAL . A number of the defendants were foreigners . The investigation files comprised CARDINAL volumes and CARDINAL volumes had been produced in the course of the trial . The prosecutor had requested that CARDINAL witnesses be heard and the testimonies of CARDINAL other witnesses be read out at the trial . Moreover , the trial court had to examine over CARDINAL items of evidence and obtain medical reports on the applicant 's mental health . It was stressed that the defendants , especially the applicant , had made extensive use of their procedural rights to challenge the judges , submit motions for new evidence or to ask for adjournment of the hearings . The trial court had to rule on all those issues and , in addition , at separate sessions , on preventive measures . The court 's first sessions , which concerned the preventive measures of the applicant and CARDINAL other defendants , were held shortly after the bill of indictment had been lodged , namely on DATE and DATE . Moreover , in DATE the trial court held CARDINAL hearings , in DATE thirtytwo , in DATE – fourteen and in DATE .

The court also addressed the applicant 's complaint that too many defendants had been tried in CARDINAL trial . To that effect the court noted that the cases of CARDINAL defendants had been severed already in DATE , of CARDINAL others , gradually , prior to DATE and of another defendant , at the later stage of the proceedings . The trial court had considered that the remaining CARDINAL co - defendants had to be tried together because the charges against them were intertwined and the testimonies of witnesses summoned concerned several defendants at a time .

Moreover , the court observed that some delays had occurred because the applicant had been making use of his procedural rights in an abusive manner or because he had been taken ill .

The applicant had lodged multiple applications to challenge each judge of the bench . His oral submissions at some hearings had lasted TIME . He had applied for the adjournment of many hearings because of a medical indisposition . Several other hearings had to be interrupted because the applicant had asked for an ambulance to be called to the court . Finally , when the trial had come to an end on DATE the applicant had asked for an adjournment in order to prepare his own closing speech . The trial court had complied with the request and had scheduled a new hearing for DATE . On DATE , however , the applicant had left the court room , refusing to participate in the proceedings .

Lastly , the court pointed out that the first - instance judgment , convicting the applicant and all other defendants , comprised CARDINAL pages and CARDINAL pages of a reasoned opinion . That element proved , in the court 's opinion , that the case in question had been very complex and justified further procedural extensions ( for example , to serve the hard copy of the judgment on the parties ) .

It was also taken under consideration that , at the time when the court was giving its ruling under LAW , CARDINAL appeals , which had been lodged by the applicant and his lawyer , were pending for DATE before the court of appeal .

In the light of the above findings , ORG concluded that the time taken by the trial court to complete the applicant 's case was not excessive . On the contrary , the overall length of the proceedings was justified by the complexity of the charges , the voluminous material and the necessity to secure to all co - defendants the effective enjoyment of their procedural rights .

NORP The applicant has corresponded extensively with the ORG authorities , non - governmental organisations and the ORG . He submitted that his letters had been withheld and censored by the authorities .

Practically each envelope of the applicant 's numerous letters sent during his incarceration had the stamp of the detention facility in which he was being held at the relevant time . The stamp in question also indicated the date of receipt of the letter and a registration number . For example : “ FAC ... received on ... No . ... ” ( PERSON w PERSON . ... Nr ... ) , ORG ... received on ... No . ... Signature ” ( PERSON w PERSON . ... FAC . The blank spaces were filled in by a printed or handwritten date and a handwritten number . In addition , an illegible signature was visible on several of the envelopes . It appears that the envelopes had not been opened before they were forwarded to the addressee .

The envelope containing the applicant 's letter sent to ORG on DATE bears a stamp : “ Censored agreeing on delivery ORG on ... [ space for date and signature ] President of ORG ” ( Ocenzurowano zezwalam na doręczenie , dn ... PERSON . PERSON ) . The stamp , however , is crossed out and the space for the date and signature are not filled in . It appears that the envelope had not been opened before it was received by ORG .

The applicant lodged several complaints with the prosecution and penitentiary authorities alleging that his correspondence had been withheld or monitored .

On DATE ORG decided not to open an investigation into the matter because the applicant had failed to substantiate his allegations . On DATE , however , ORG quashed the above decision and ordered an additional inquiry .

On DATE ORG upheld the police decision of the same date to discontinue the inquiry into the applicant 's allegations that his letters had been withheld or monitored by the administration of ORG and ORG . The inquiry did not confirm that the alleged facts had taken place . On DATE the ORG quashed that decision and ordered a further inquiry . The applicant did not submit any information as to the subsequent developments in the case .

By letter of CARDINAL DATE a penitentiary judge of ORG informed the applicant that his letters had not been sent by ORG via the court because the applicant had the status of a convicted person . Consequently , the applicant 's correspondence could not have been withheld or monitored .

The relevant domestic law and practice concerning the imposition of pretrial detention ( aresztowanie tymczasowe ) , the grounds for its extension , release from detention and rules governing other “ preventive measures ” ( środki zapobiegawcze ) are set out in the ORG 's judgments in the cases of ORG v. GPE , no . GPE , § § DATE , DATE , and PERSON v. GPE , no . CARDINAL , § § DATE , CARDINAL DATE .

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings , in particular the applicable provisions of LAW , are stated in the ORG 's decisions in the cases of ORG v. GPE no . CARDINAL/CARDINAL ( dec . ) , § § DATE , ECHR CARDINAL-V ; PERSON GPE no . CARDINAL ( dec . ) , ORG CARDINAL-VIII ; and the judgment in the case of ORG v. GPE , no . CARDINAL , § § DATE , ORG CARDINAL

The legal provisions concerning monitoring of detainees ' correspondence applicable at the material time and questions of practice are set out in CARDINAL of the judgment delivered by ORG in GPE , no . CARDINAL/CARDINAL .

The relevant statistical data , recent amendments to LAW designed to streamline criminal proceedings and references to relevant ORG materials can be found in the ORG 's judgment in the case of ORG ( see ORG v. GPE , no . CARDINAL , § § DATE and CARDINAL , DATE ) .


Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

ORG Mr PERSON lives in GPE .

ORG On DATE he bought a flat that had been let to a Mr V. since DATE . The rent for this flat was subject to control by the public authorities . The lease had been tacitly renewed until PERSON no . CARDINAL of DATE came into force , by which it had been extended until DATE .

ORG In a registered letter received on DATE the applicant informed PERSON that he intended to terminate the tenancy when the lease expired , that is to say on DATE , and asked him to move out of the flat by that date .

ORG In a writ issued on CARDINAL DATE and served on DATE , Mr PERSON gave PERSON notice to quit and summoned him to appear before the GPE magistrate ( pretore ) on DATE .

On DATE the magistrate formally confirmed the notice to quit and set the date of eviction at DATE . The decision was made enforceable DATE and was served on the tenant at DATE .

Subsequently , on an application by PERSON , the magistrate deferred execution until DATE , pursuant to Law no . CARDINAL of CARDINAL DATE , which had extended existing leases for DATE . Nevertheless , the tenant remained in occupation even after DATE .

ORG The applicant then began enforcement proceedings , by means of a notice dated DATE that was served on PERSON on DATE . He required PERSON to quit the premises within DATE of receiving the notice and informed him that if he did not leave of his own accord , the order for possession would be enforced .

ORG In a notice served on DATE the bailiff informed PERSON that he would be evicted on DATE . When the bailiff went to the flat on DATE , however , the tenant refused to leave .

The bailiff arranged to make his next visit to the LOC on DATE , but in the meantime emergency legislation ( Legislative Decree no . CARDINAL of DATE , which became PERSON no . CARDINAL of DATE ) came into force . This had been made necessary by an exceptionally severe housing shortage in certain cities , including GPE . Enforcement of evictions was suspended until DATE . In the instant case , as the applicant had obtained an order for possession before DATE , he was entitled under PERSON no . CARDINAL to enforce it from DATE .

ORG Between then and the entry into force , on DATE , of Legislative Decree no . CARDINAL , of the same date , suspending forcible evictions until DATE , the bailiff made CARDINAL attempts to evict PERSON , who on each occasion refused to leave the flat . Legislative Decree no . CARDINAL ( which became PERSON no . CARDINAL of DATE ) gave the ORG ( prefetto ) power to grant police assistance to enforce evictions in the cases provided for .

ORG DATE and CARDINAL DATE the bailiff made CARDINAL unsuccessful attempts to evict PERSON In a deed dated DATE Mr PERSON made a solemn declaration under sections CARDINAL and CARDINAL of Law no . CARDINAL of DATE that he needed to recover his flat in order to live there with his family . He said that his case should accordingly be given priority .

ORG On DATE a new series of laws came into force suspending forcible evictions until DATE .

ORG DATE and DATE the bailiff made CARDINAL unsuccessful attempts to persuade the tenant to leave . In the meantime ( on CARDINAL and DATE ) the applicant 's lawyer wrote CARDINAL letters to the prefectoral committee which had been set up pursuant to PERSON no . CARDINAL of DATE and had power to grant police assistance , pointing out that his client 's case had priority . He cited the fact that the tenant had ceased to pay the full rent and stated that his client needed the flat . He emphasised that Mr PERSON was a diabetic , PERCENT disabled and unemployed .

The prefectoral committee did not reply , even though a fresh declaration of necessity had been enclosed in the first letter it received . In this second declaration Mr PERSON had stated that he could not immediately occupy a second flat he had been obliged to buy in DATE , on account of the extensive work required to convert the property .

ORG On DATE the applicant brought proceedings in the magistrate 's court , arguing that the suspension of forcible evictions was not applicable to his case , as the tenant had been refusing to pay part of the rent since DATE . On DATE the magistrate ordered the parties to appear on DATE . On that date PERSON paid the sums due and the case was struck out of the list .

ORG On DATE Mr PERSON informed ORG that after a further visit by the bailiff on DATE he had recovered his flat on DATE .

ORG On the basis of the ORG 's report , NORP legislation on residential property leases may be summarised as follows .

Since DATE the public authorities in GPE have frequently intervened in residential tenancy legislation with the aim of controlling rents . This has been achieved by rent freezes ( occasionally relaxed when the Government decreed statutory increases ) , by the statutory extension of all current leases and by the postponement , suspension or staggering of evictions .

The last statutory extension of all current leases , with the exception of certain cases specifically prescribed by the PERSON , was introduced by PERSON no . CARDINAL of DATE and remained in force until DATE , DATE or DATE , depending on the dates on which the leases were signed .

It should , however , be noted that , as regards buildings used for purposes other than housing , the statutory extension of current leases prescribed by LAW no . CARDINAL of DATE was declared unconstitutional in a decision ( no . CARDINAL ) handed down by ORG on DATE . In its decision the court held that the statutory restrictions imposed on property rights under LAW , with a view to ensuring social justice , made it possible to regard controls imposing restrictions as legitimate , provided that such controls were of an exceptional and temporary nature , but that perpetuating such restrictions was incompatible with the protection of property rights embodied in LAW .

In its decision ORG also pointed out that the statutory DATE extension of leases prescribed by PERSON no . CARDINAL should not be considered in isolation but within the context of tenancy provisions as a whole . The court drew particular attention to the fact that this extension succeeded other statutory extensions and could mark the beginning of new restrictions on freedom of contract in this field . Moreover , the statutory extension of leases had the effect of prolonging contracts in which the rent , notwithstanding the increases allowed in accordance with rises in the cost of living , were not even approximately in line with current socio - economic conditions . Further , the PERSON concerned did not give the lessor the possibility of regaining possession of the property except in cases of absolute necessity .

ORG also held that PERSON no . CARDINAL , inasmuch as it provided for a blanket extension of current leases without taking into consideration the particular economic circumstances of lessors and lessees - as would have been necessary to ensure social justice - , infringed the principle of the equality of citizens before the law embodied in LAW .

Numerous provisions have established rules for the postponement , suspension or staggering of the enforcement of judicial decisions ordering tenants to vacate the LOC they occupy ( ordinanze di sfratto ) .

A first suspension was introduced by Legislative Decree no . CARDINAL of DATE . The provisions set forth therein were incorporated in Legislative Decree no . CARDINAL of DATE , which became PERSON no . CARDINAL of DATE . It covered the period from DATE to CARDINAL DATE . This legislation also provided for the staggered resumption of forcible evictions on DATE , CARDINAL DATE , CARDINAL DATE or DATE , depending on the date on which the judgment recording the end of the lease had become enforceable .

Section CARDINAL ( CARDINAL ) of PERSON no . CARDINAL stipulated that such suspensions were not applicable if repossession of the LOC had been ordered because arrears of rent were owed . Similarly , no suspension could be ordered in the following cases :

( a ) where , after conclusion of the contract , the lessor required the property for his own use or for that of his spouse or his children or grandchildren , for residential , commercial or professional purposes , or where a lessor who intended to use the premises for one of the above - mentioned purposes ( a ) offered the tenant similar accommodation at a rent which he could afford and which was not PERCENT higher than the previous rent and ( b ) undertook to pay the costs of the tenant 's removal ( DATE subsection , paragraphs CARDINAL , CARDINAL , DATE and DATE , of PERSON no . CARDINAL of DATE ( " Law no . CARDINAL " ) ) ; and

( b ) where , inter alia , a lessor urgently needed to regain possession of his flat as accommodation for himself , his children or his ascendants ( LAW , first paragraph , sub - paragraphs CARDINAL , DATE , DATE and DATE , of Legislative Decree no . CARDINAL of DATE , which became PERSON no . CARDINAL of DATE ( " Law no . DATE " ) ) .

A second suspension was introduced by Legislative Decree no . CARDINAL of CARDINAL DATE , which became LAW no . CARDINAL of DATE .

It covered the period from DATE and in sections CARDINAL and CARDINAL provided for the same exceptions as the provisions in the preceding legislation .

Law no . CARDINAL of DATE also established that the ORG was competent to determine the criteria for authorising police assistance in evicting recalcitrant tenants , after consulting a committee including representatives of both tenants and landlords .

Section CARDINAL ( CARDINAL bis ) of PERSON no . CARDINAL of DATE also provided for the automatic suspension until DATE of forcible evictions of tenants entitled to subsidised housing .

A third suspension was introduced by Legislative Decree no . CARDINAL of DATE , which became PERSON no . CARDINAL of DATE . It first covered the period from CARDINAL DATE to DATE and was subsequently extended from the latter date to DATE .

A fourth suspension was introduced by Legislative Decree no . CARDINAL of DATE , which became PERSON no . CARDINAL of CARDINAL DATE , and covered the period up to DATE . In regions suffering from natural disasters the suspension remained in force until DATE .

With the exception of urgent cases , this PERSON also provided that police assistance in enforcing evictions would only be authorised in gradual stages over a period of DATE from DATE and set up a prefectoral committee responsible for deciding which cases required police intervention most urgently .

All the aforementioned laws and decrees also contained provisions relating to the financing of subsidised housing and to housing benefits .


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

The applicant , PERSON , is a national of GPE of NORP origin who was born in DATE and lives in GPE ) . She was represented before the ORG by PERSON , an advocate practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON . ORG of GPE , having been informed of their right to intervene ( LAW CARDINAL § CARDINAL ( a ) of ORG ) , did not avail themselves of this right .

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

On DATE the applicant 's parents were awarded a house in GPE ( GPE ) for temporary use by the occupying forces who , at that time , controlled ORG . The house was owned by PERSON , who had been forced to leave ORG in DATE shortly before the village was taken by the occupying forces .

The applicant 's parents moved out of the house DATE and went to live in PERSON ( GPE ) .

On DATE ORG brought a civil action against the applicant 's parents in ORG ( PERSON ) . She claimed that they had looted her house when they moved out of it , and sought CARDINAL NORP kunas ( HRK ) in compensation , which was her estimate of the value of the household items allegedly stolen by the applicant 's parents .

As the defendants ' address was unknown , the court appointed PERSON GPE , an advocate from GPE , to act as their temporary representative ( privremeni zastupnik ) in the proceedings .

On DATE the applicant 's mother died .

During the proceedings the court called CARDINAL witnesses proposed by the plaintiff . At the request of the plaintiff , on DATE the court decided to obtain an expert opinion on the value of the household items missing from the plaintiff 's house and appointed PERSON , an expert witness in economics , for that purpose . On DATE the expert witness prepared his opinion and submitted it to the court DATE . He assessed the value of the objects in question at HRK CARDINAL,CARDINAL .

At a hearing held on DATE the court called the expert witness .

On DATE , the court issued a judgment in which it found for the plaintiff and ordered the applicant 's parents to pay ORG in compensation for the looted property , together with accrued statutory default interest running from DATE . The relevant part of that judgment reads as follows :

“ Having consulted the opinion of expert witness GPE , who was also heard in person , the court has established beyond dispute that the value of the household items appropriated from the plaintiff 's house in DATE amounted to CARDINAL kunas .

In deciding the amount of pecuniary damages ... on the basis of the expert opinion , which the court accepted because it had been prepared meticulously and competently , the court considers that the plaintiff should be awarded ... the sum of CARDINAL kunas ... ”

In the absence of any appeal , the judgment became final on DATE .

On DATE the applicant 's father , represented by an advocate , lodged a petition to reopen the above - mentioned civil proceedings with ORG .

On DATE the applicant 's father died . On DATE the applicant was declared the sole heir of her parents .

On DATE the applicant , as her father 's heir , took over the proceedings from him . She gave a power of attorney to the same advocate who had represented her father in the proceedings .

On DATE the court reopened the proceedings and set aside its previous judgment of DATE .

At a hearing held on DATE in the reopened proceedings , the court provided the applicant 's representative with the plaintiff 's statement of claim ( tužba ) dated DATE , its prior judgment of DATE and a transcript of the previous proceedings . At subsequent hearings held on CARDINAL DATE , DATE , DATE , DATE and DATE , the court called the defendant , the plaintiff , CARDINAL witnesses for the defendant , CARDINAL witness for the plaintiff that it had already heard in the previous proceedings and CARDINAL new witnesses for the plaintiff . However , in the reopened proceedings , the court did not call the expert witness or CARDINAL other witnesses for the plaintiff whom it had called in the previous proceedings . Instead , at a hearing held on DATE , the court read out the transcripts of the testimony given by those witnesses in the previous proceedings .

On DATE ORG again ruled for the plaintiff . It ordered the applicant to pay HRK CARDINAL to ORG in compensation for the property appropriated from ORG , together with accrued statutory default interest running from DATE . The relevant part of the judgment reads as follows :

“ ... The court accepted the opinion of the expert economic witness in its entirety because it considers that it was prepared meticulously and competently .

In deciding the amount of the plaintiff 's claim , the court considers that on the basis of the expert opinion the plaintiff should be awarded ... the sum of CARDINAL kunas ... ”

On DATE the applicant appealed . In her appeal she argued , inter alia , that the value of the property she had inherited from her parents was less than the amount of the award of damages she had been ordered to pay . The applicant also argued that the first - instance court had merely deferred to the expert opinion of DATE without critically examining it . In her appeal the applicant wrote , inter alia :

“ The defendant [ i.e. the appellant ] primarily emphasises that she entered the proceedings as an heir of her deceased parents ... The defendant as an heir is liable for the debts of her parents only up to the value of the inherited property .

It can not be disputed that the value of the property inherited from the deceased , PERSON and PERSON , is significantly less than the sum the defendant was ordered to pay by the [ contested ] judgment ...

Namely , the defendant PERSON , inherited practically worthless plots of land from her parents ...

... [ A ] total of QUANTITY of scattered and worthless land is [ her ] inherited property , whereas the court obliges the defendant to pay a sum , the principal amount of which already exceeds the value of the inherited property by several times .

Furthermore , the manner in which the first - instance court determined the value of the plaintiff 's claim is unacceptable , and the defendant considers that the manner [ in which the court of first instance ] established the facts is contrary to the principle of free evaluation of evidence provided for in section CARDINAL of LAW .

The first - instance court 's bases its decision on the amount of pecuniary damage exclusively on the expert opinion , whereas it [ i.e. the court ] did not critically assess that evidence in any way , as it was obliged to do in accordance with the principle of seeking the material truth [ i.e. its fact - finding role ] .

The duty of the expert economic witness was to determine the real market value of the appropriated household items ... in accordance with prices [ pertaining ] at the time the judicial decision was rendered .

From the expert opinion it can not be discerned what were the prices used to assess the value of the household items . The expert did not have at his disposal photographs which were subsequently submitted . Had he had them , it is likely that the value of [ those ] items would have been [ assessed ] significantly lower . The state of [ repair of ] [ those ] objects , their age and quality is significantly below average , let alone better than average as assessed by the expert .

The defendant considers that the main reason for the flaws in the expert opinion is the fact that the decision of the court to obtain an expert opinion was not sufficiently clear and specific . Thus , it did not give the expert clear instructions ... , which in the defendant 's view , significantly affected the lawfulness and correctness of the contested judgment . ”

On DATE ORG PERSON GPE ) dismissed the applicant 's appeal in respect of the part of the first - instance judgment ordering the applicant to pay the plaintiff HRK CARDINAL,CARDINAL . It allowed her appeal and reversed the first - instance judgment only in respect of the award of statutory default interest , finding that interest should run from CARDINAL DATE and not from DATE . The court held that during the course of the proceedings before the court of first instance , the applicant had not submitted any evidence as regards the value of the property inherited by her and that she had never objected to the expert opinion . The relevant part of ORG judgment reads as follows :

“ The defendant correctly notes that under LAW an heir is liable for the debts of the decedent up to the value of the inherited property . It is uncontested that the defendant inherited the immovable property listed in the enclosed decision on inheritance . However , a court in civil proceedings does not determine the value of that immovable property of its own motion , and in the [ instant ] proceedings the defendant did not indicate the value of the inherited immovable property nor propose evidence to determine that value .

The value of household items appropriated from the plaintiff was determined according to the expert opinion ... Following a petition by the defendant , the first - instance court allowed the reopening of the previous civil proceedings ... and the final judgment obliging PERSON and PERSON to pay an amount of money was set aside . Therefore , the defendant was aware of [ the expert opinion ] and she did not object to [ it ] . ”

On DATE the applicant lodged a constitutional complaint against ORG judgment , alleging violations of her constitutional rights to equality before the law and to a fair hearing . She argued , inter alia , that the amount of the award of damages had been established on the basis of the expert opinion of DATE . However , as she had not been served with the opinion , she had not therefore had a chance to submit her comments on the expert 's findings , including those relevant to the value of the plaintiff 's claim . In her constitutional complaint the applicant wrote , inter alia :

“ The complainant has never received a decision of the court [ of first instance ] ordering an expert opinion , appointing an expert and instructing him in respect of which circumstances the opinion should be prepared . The expert opinion was obtained in the initial proceedings , it has never been served on the complainant or read out [ before the court ] at the main hearing [ during the reopened proceedings ] . Nor did the parties consent that evidence should be taken by reading out the expert opinion at the main hearing .

In this way , the complainant was not given an opportunity to comment on the expert opinion , to object to it or to examine the expert . Nor is she aware in respect of which circumstances the report was prepared , or which household items were the subject of , his report .

Furthermore , the manner in which the first - instance court determined the value of the plaintiff 's claim is unacceptable . Its decision as to the sum of pecuniary damages the first - instance court bases exclusively on the expert opinion , which was not obtained during the [ reopened ] proceedings nor read out [ in court ] .

The expert did not have at his disposal photographs which were subsequently submitted [ when compiling the report ] . Had he had them , it is likely that the value of the household items [ in question ] would have been [ assessed at a ] lower [ price ] . The state of [ repair of those ] objects , their age and quality is below average , let alone better than average as assessed by the expert . ”

On DATE ORG ( Ustavni sud PERSON ) dismissed the applicant 's complaint and served its decision on her representative on DATE .

The relevant Articles of the LAW of GPE ( ORG , ORG nos . DATE , CARDINAL , CARDINAL/CARDINAL ( consolidated text ) , CARDINAL , DATE ( consolidated text ) , CARDINAL and DATE ( consolidated text ) , PERSON ( corrigendum ) ) provide as follows :

“ All shall be equal before the law . ”

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

“ CARDINAL . The right of ownership shall be guaranteed .

Ownership implies duties . Owners and users of property shall contribute to the general welfare . ”

“ CARDINAL . Ownership may be restricted or taken in accordance with the law and in the interests of GPE , subject to payment of compensation equal to the market value .

The exercise ... of the right of ownership may , on an exceptional basis , be restricted by law for the protection of the interests and security of GPE , nature , the environment or public health . ”

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

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

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

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

“ A constitutional complaint shall contain ... an indication of the constitutional right alleged to have been violated [ together ] with an indication of the relevant provision of the LAW guaranteeing that right ... ”

“ ... [ t]he ORG shall examine only the violations of constitutional rights alleged in the constitutional complaint . ”

Section CARDINAL(CARDINAL ) of LAW ( Zakon o nasljeđivanju , ORG and CARDINAL ) , which entered into force on DATE and was applicable as of DATE , provides as follows :

“ An heir shall be liable for the debts of the decedent up to the value of the inherited property . The court shall take into account the value of the inherited property and the value of the decedent 's debts that the heir has already paid only if the heir raises [ that issue ] . ”


CASE OF X. v. THE UNITED KINGDOM (ARTICLE 50)

Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Notes agreement on Costs and expenses - Convention proceedings

The case of PERSON v. GPE was referred to the ORG by ORG ( " the Commission " ) in DATE . The case originated in an application against GPE and GPE lodged with the Commission on DATE by a GPE citizen , referred to as X in this judgment in view of the wish expressed by his next of kin following his death in DATE .

The applicant had alleged violation of DATE , CARDINAL and CARDINAL of Article CARDINAL ( article CARDINAL - CARDINAL , article CARDINAL - CARDINAL , article DATE ) of the LAW in relation to his compulsory confinement in a psychiatric hospital . By judgment of CARDINAL DATE , ORG held that there had been a breach of paragraph CARDINAL ( article DATE ) , but not of paragraph CARDINAL ( article CARDINAL - CARDINAL ) , of DATE and that it was not necessary also to examine the case under paragraph CARDINAL ( article CARDINAL - CARDINAL ) ( Series A no . CARDINAL , points CARDINAL , CARDINAL and CARDINAL of the operative provisions and paragraphs CARDINAL of the reasons , pp . CARDINAL ) .

The only outstanding matter to be settled in the present case is the question of the application of LAW ) . Accordingly , as regards the facts , the ORG will confine itself here to giving the pertinent details ; for further particulars , reference should be made to paragraphs CARDINAL of the above - mentioned judgment ( ibid . , pp . CARDINAL - CARDINAL ) .

At the public hearings held on DATE , counsel on behalf of the applicant had stated that , should the ORG find a violation , they would be submitting a claim for just satisfaction under LAW ) to obtain both compensation for damage suffered and reform of the law . The Government of GPE ( " the Government " ) , for their part , had not taken a stand on the matter .

In its judgment of CARDINAL DATE , ORG reserved the whole of this question . The Commission was invited to submit to ORG , within DATE , written observations thereon and , in particular , to notify ORG of any friendly settlement at which the ORG and the applicant ’s next of kin might have arrived ( see point CARDINAL of the operative provisions and paragraph CARDINAL of the reasons , ibid . , pp . CARDINAL and CARDINAL ) .

The President of the ORG extended the above - mentioned time - limit twice , on the last occasion until DATE .

On DATE , the Secretary to ORG , acting on the ORG ’s instructions , transmitted to the registry copies of correspondence giving details of the negotiations between the ORG and the applicant ’s representatives , together with the ORG ’s observations thereon . These documents revealed that although opinions on certain items were not widely diverse , no overall settlement had been reached .

By Order of CARDINAL DATE , the President of the ORG directed that the Agent of the Government should have until DATE to file any comments on the observations of the Commission ’s Delegate . This time - limit was subsequently extended by DATE . On DATE , the Agent of the Government filed a memorial .

On DATE , the Secretary to the Commission , in response to a request made on DATE by the Registrar , supplied the latter with certain information , together with several supporting documents .

During the negotiations , claims for just satisfaction were put forward under CARDINAL heads :

( a ) for reform of the domestic law to bring it into line with the requirements of the Convention ;

( b ) for financial compensation for damage caused by the breach of LAW ( LAW ) ;

( c ) for reimbursement of costs necessarily incurred .

For ease of reference , further particulars of these claims are set out below in the section " As to the law " .

Subsequent to and , according to the ORG , as a direct result of the judgment of CARDINAL DATE , various amendments were inserted into ORG ) PERSON , which is still before ORG . In brief , these amendments provide that from the coming into force of the LAW ( scheduled for DATE ) , ORG will be empowered to consider the substantive grounds for the continued detention of a restricted patient , and will be required to order discharge where appropriate . The Government have in addition given an undertaking to ORG to provide legal representation at public expense for patients coming before ORG whose own financial resources are insufficient .

Mr. PERSON , Mrs. PERSON - Robert and Mr. PERSON , substitute judges , took the place of Mr. PERSON , Mr. NORP and Mr. PERSON , who were prevented from taking part in the further consideration of the case ( Rules CARDINAL - CARDINAL and CARDINAL - CARDINAL of ORG ) .

The ORG decided on DATE that there was no call to hold oral hearings .


The applicant is an NORP public company whose registered office is in GPE , GPE ) . It produces and sells beer under the brand name “ Budweiser ” in a number of countries around the world .

On DATE the applicant company applied to ORG ( PERSON ) to register “ Budweiser ” as a trade mark on the industrial - property register . The PERSON did not grant the application immediately because it was opposed by a company incorporated in GPE , PERSON , which had already registered “ Budweiser Bier ” as an appellation of origin .

According to the applicant company , negotiations then took place between it and PERSON concerning the use of the “ Budweiser ” trade mark . As the parties could not come to an agreement , the applicant company applied to ORG on DATE for an order cancelling PERSON registration . In a judgment of CARDINAL DATE , which became final , ORG granted that application on the ground that the product to which the registration referred , namely the beer known as “ Budweiser Bier ” , did not have the requiriste characteristics to be considered an appellation of origin or indication of source . The registration was therefore cancelled .

NORP In a decision of DATE , which was published on CARDINAL DATE , the ORG registered the “ Budweiser ” trade mark in the applicant company ’s name , despite a prior objection by PERSON . On DATE PERSON appealed to ORG against the PERSON ’s decision on the strength of an agreement between ORG and the NORP GPE for the protection of indications of source , appellations of origin and other geographical and similar designations ( “ the DATE LAW ” ) , which was signed in GPE on DATE and entered into force on DATE after publication in ORG . In accordance with the law , the applicant company was invited by the court to take part in the proceedings as an interested party .

In a judgment of DATE , ORG Instance dismissed the application . It found that the only intellectual property eligible for protection under NORP law was the appellation of origin “ Ceskebudejovicky Budvar ” , not the trade mark “ Budweiser ” . In addition , it found that there was no risk of confusion between that appellation of origin and the applicant company ’s trade mark , which the vast majority of consumers tended to identify as an NORP beer .

PERSON appealed against that decision to ORG . In a judgment of DATE , ORG overturned the impugned judgment and ordered the PERSON to refuse to register “ Budweiser ” as a trade mark , as it considered that such a registration would infringe LAW and , consequently , LAW CARDINAL ( j ) of ORG .

The applicant company appealed on points of law to ORG , alleging inter alia that the impugned decision contravened the agreement of DATE on ORG ( “ the TRIPs Agreement ” ) , which establishes the rule that registration confers priority , and in particular LAW and CARDINAL § CARDINAL of that agreement . The applicant company also alleged that , in any event , the protected appellation of origin “ PERSON ” did not correspond to the NORP expression “ Budweiser ” , so that LAW could not be used to challenge its application for registration . Even supposing , however , that the NORP expression “ Budweiser ” were an accurate translation of the NORP appellation of origin , the applicant argued that LAW applied only to translations between NORP and NORP , not into any other languages . It submitted , lastly , that a formal defect in LAW made it unconstitutional , as it had been adopted by the Government , not ORG , in breach of ORG CARDINAL and CARDINAL of the LAW governing parliamentary sovereignty .

In a judgment of DATE , which came to the applicant company ’s knowledge on DATE , ORG dismissed the appeal on points of law .

With regard to ORG , ORG began by noting that the provision of that agreement relied on by the applicant company required it to have acted in good faith . However , the applicant company had not indicated in its application for registration any factual element that demonstrated its good faith . In any event , ORG noted that by virtue of DATE of ORG , it had not become binding under NORP law until DATE , that is to say after LAW had entered into force . ORG could not , therefore , take precedence over LAW .

As regards the interpretation of LAW , ORG considered it undeniable that the CARDINAL contracting States had intended by that agreement to protect , through reciprocal arrangements , their respective national products , including in circumstances in which a translation of the names concerned was used . The appellation of origin “ PERSON ” , which translated into NORP as “ PERSON ” or “ NORP ” , indicated a product from the České GPE region in GPE . It was therefore protected by LAW .

Lastly , the procedure whereby the ORG had been adopted did not contravene Articles CARDINAL and CARDINAL of the LAW , since it did not concern a sphere that was within the exclusive competence of ORG .

The agreement was signed in GPE in DATE and came into force on DATE . In a note dated DATE , the NORP Minister of ORG indicated that GPE would be succeeding GPE as a contracting party to the Agreement . The NORP Minister of ORG agreed thereto on behalf of GPE in a note dated DATE .

DATE Agreement provides , inter alia :

“ CARDINAL . If a name or designation protected under this Agreement is used in commercial or industrial activities in breach of the provisions of this Agreement for products ... all judicial or administrative remedies available under the legislation of ORG in which protection is sought to prevent unfair competition or the use of unlawful designations shall , by virtue of the LAW , be deployed to restrain such use .

NORP The provisions of this Article shall apply even when translations of the said names or designations are used ... ”

Appendix A to the Agreement lists the designations “ ORG pivo ” and “ Ceskebudejovicky Budvarà ” among the protected appellations of origin .

The Paris Convention of DATE for the protection of industrial property , as subsequently revised on numerous occasions ( most recently in GPE on DATE , [ DATE ] CARDINAL United Nations Treaty Series , pp . CARDINAL et seq . ) , to which GPE , GPE and GPE are parties , sets up a Union for the protection of industrial property , an expression understood to cover industrial designs , trade marks , appellations of origin and indications of source . The purpose of LAW is to prevent discrimination against non - nationals and it lays down a number of standards of a very general nature dealing with the procedural and substantive aspects of industrial - property law . The LAW enables owners of marks to obtain protection in various member ORG through a single registration .

The relevant parts of LAW provide :

“ A. ( CARDINAL ) Any person who has duly filed an application for ... the registration of ... an industrial design , or of a trademark , in CARDINAL of the countries of the Union , or his successor in title , shall enjoy , for the purpose of filing in the other countries , a right of priority during the periods hereinafter fixed .

( CARDINAL ) Any filing that is equivalent to a regular national filing under the domestic legislation of any country of the ORG or under bilateral or multilateral treaties concluded between countries of the ORG shall be recognized as giving rise to the right of priority .

( CARDINAL ) By a regular national filing is meant any filing that is adequate to establish the date on which the application was filed in the country concerned , whatever may be the subsequent fate of the application .

B. Consequently , any subsequent filing in any of the other countries of the ORG before the expiration of the periods referred to above shall not be invalidated by reason of any acts accomplished in the interval , in particular , another filing , ... the use of the mark , and such acts can not give rise to any third - party right or any right of personal possession . Rights acquired by third parties before DATE first application that serves as the basis for the right of priority are reserved in accordance with the domestic legislation of each country of the Union

C. ( CARDINAL ) The periods of priority referred to above shall be ... DATE for industrial designs and trademarks .

LAW Concerning LAW and LAW of DATE , establish and govern a system for the international registration of marks that is administered by ORG ) in GPE ( GPE ) . LAW was revised in GPE ( DATE ) , GPE ( DATE ) , GPE ( DATE ) , GPE ( DATE ) , GPE ( DATE ) and GPE ( DATE ) . The DATE LAW established the “ GPE ” composed of the GPE that were parties to ORG and the contracting parties to the LAW . GPE became a party to the Agreement on DATE . GPE have not ratified the Agreement . They ratified LAW on DATE .

The system set up by ORG is applicable to the members of ORG and affords owners of a mark a means of securing protection in various countries through a single application for registration in the national or regional registry . Under the system the registration of an international mark has the same effect in the countries concerned as an application to register the mark or registration of the mark by the owner directly in each individual country . If the trade - mark registry of a member ORG does not refuse protection within a set period , the mark enjoys the same protection as if it had been registered directly by that registry .

The Agreement on Trade - Related Aspects of LAW ( “ the TRIPs Agreement ” ) was concluded in the Uruguay Round of the negotiations that resulted in the signature in DATE of ORG in GPE , which came into effect on DATE .

The provisions of ORG of relevance to the present case are as follows :

“ CARDINAL . In respect of Parts II [ standards concerning the availability , scope and use of intellectual property rights ] , III [ enforcement of intellectual property rights ] and PERSON [ acquisition and maintenance of intellectual property rights and related inter - partes procedures ] of this Agreement , Members shall comply with ORG CARDINAL through CARDINAL , and LAW , of LAW ( DATE ) .

“ Where a trademark has been applied for or registered in good faith , or where rights to a trademark have been acquired through use in good faith either :

( a ) before the date of application of these provisions in that Member as defined in Part VI ; or

( b ) before the geographical indication is protected in its country of origin ;

measures adopted to implement this Section shall not prejudice eligibility for or the validity of the registration of a trademark ... on the basis that such a trademark is identical with , or similar to , a geographical indication . ”

“ Subject to the provisions of paragraphs CARDINAL , CARDINAL and DATE [ , which provide for longer periods ] , no Member shall be obliged to apply the provisions of this Agreement before the expiry of a general period of DATE following the date of entry into force of ORG . ”

In accordance with the relevant international instruments in this sphere , the legislation of most of the member ORG regards registration as the corollary to the acquisition of the right to the mark . However , the vast majority of the States also regard the application for registration of the mark as conferring certain rights . In most cases , the date the application is filed is taken as the beginning of the period of validity of the mark once it has been registered ( retrospective protection through registration ) . The date of filing also determines priority in the system of international marks . Lastly , in some countries , an application to register a mark may itself be the subject of provisional registration , while in others it may be the subject of an assignment , security assignment or licence and ( provided the mark is subsequently registered ) create an entitlement to compensation in the event of fraudulent use by CARDINAL party .

NORP In most countries , registration is preceded by publication of notice of the application and a procedure whereby interested parties can oppose registration in adversarial proceedings . However , in some countries , registration is automatic if the competent authority is satisfied that the application satisfies the formal and substantive requirements . In both cases , in accordance with the applicable international rules , an action to have a mark revoked or declared invalid may be brought within a set period . Such actions may be based on grounds such as valid prior title , prior application , right to international priority , or a failure to use the mark for a certain period .

The substantive and procedural law of industrial property at the material time was contained in CARDINAL successive Codes of Industrial Property , the first introduced by legislative - decree no . DATE of CARDINAL DATE and the second by legislative - decree no . CARDINAL of DATE . It was the latter ( DATE ) code which was applied by the domestic courts in the instant case .

The Code recognised a like right of priority to that set out in LAW ( Article CARDINAL ) . Priority was determined by reference to the date the application for registration was filed ( Article CARDINAL ) . By virtue of Articles CARDINAL and CARDINAL , the application for registration itself could be the subject of an assignment , with or without consideration , or a licence .

Article CARDINAL § CARDINAL ( j ) laid down that that registration was to be refused if the mark contained “ expressions ” that contravened domestic legislation . Subparagraph ( l ) also prohibited registration of a mark that contained elements that were liable to mislead the public .

DATE Third parties who claimed that they were adversely affected by the registration of a mark had a right to appeal against the PERSON ’s decision within DATE from the date it was published ( DATE ) . The appeal had to be lodged with ORG ( Article CARDINAL ) . The Code did not state whether such appeals had suspensive effect .

In a judgment of CARDINAL DATE PERSON , DATE , vol . III , p. CARDINAL ) , ORG held that the mere filing of an application for registration conferred on the applicant a “ legal expectation ” ( expectativa jurídica ) that warranted the protection of the law . LAW , which was introduced by legislative - decree no . CARDINAL/CARDINAL of CARDINAL DATE and came into force on DATE , provides “ provisional protection ” of the mark even prior to registration and the applicant is entitled to bring an action in damages on the basis of that protection .