CASE OF GEORGIAN LABOUR PARTY v. GEORGIA

No violation of P1-3;Violation of P1-3;No violation of Art. 14+P1-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of a violation sufficient

Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Mindia Ugrekhelidze;Riza Türmen;Vladimiro Zagrebelsky

The applicant party is a political party .

On DATE ORG ( “ the ORG ” ) announced the final results of the votes in the regularly scheduled parliamentary election of DATE , according to which CARDINAL parties had cleared the PERCENT legal threshold required by LAW ( “ the ORG ” , see paragraph CARDINAL below ) . The opposition party , ORG , took third place with PERCENT of the vote ( giving them CARDINAL seats in ORG ) , followed by the applicant party with PERCENT of the vote ( CARDINAL seats ) and GPE , a coalition led by the President of the ORG , PERSON , with PERCENT of the vote ( CARDINAL seats ) .

On account of numerous instances of ballot fraud reported by election observers , ORG and the NORP refused to accept the election results . With general support from the population , they called for President PERSON ’s resignation . When the newly elected parliament convened for its first session on DATE , the opposition forces broke into the parliament building , disrupted the President ’s inaugural speech and ousted the members of parliament ( MPs ) .

On DATE Mr PERSON resigned and ORG became the interim President of GPE , as provided for by LAW . Those events were later referred to as the “ Rose Revolution ” .

As the parliament elected in DATE had been ousted by the revolutionary forces , the interim leadership recalled the previous parliament elected in DATE ( see LAW , paragraph DATE below ) until such time as a new parliament was elected .

On DATE ORG of GPE annulled the ORG vote tally of DATE in the part concerning the election results under the proportional system . The results in single - seat constituencies remained in force .

On DATE the Chairman of the ORG , who had been appointed by ex - President PERSON , resigned . On DATE the interim President dismissed CARDINAL members of the ORG who had been appointed by the ex - President , and ORG elected a new Chairman of the ORG on the basis of a candidature proposed by the interim President .

In view of the partial annulment of the election results of the initial parliamentary election of DATE by ORG on DATE , on DATE the ORG Chairman issued Ordinance no . CARDINAL which , under LAW of the ORG , set the date of the repeat parliamentary election ( “ the repeat election ” ) for DATE . On DATE , however , the ORG Chairman applied to the interim President of GPE ( Decree no . CARDINAL ) , requesting that DATE be set for the election , arguing that it would hardly be possible to ensure its proper administration within such a short time frame . This application was finally granted on DATE and the repeat election was scheduled for DATE by the interim President .

The applicant party challenged ORG no . CARDINAL/CARDINAL in court , claiming that the ORG had erroneously relied on LAW instead of LAW of the ORG when setting the date for the repeat election . By a judgment of DATE , ORG dismissed the claim , reasoning that the applicant party lacked victim status . That judgment was quashed on DATE by ORG which noted that , since the applicant party was running for election , there was a direct and consequential link between its interests and the decisions of the ORG . However , ORG dismissed the claim as manifestly illfounded .

On DATE , DATE and DATE the ORG issued Ordinances by which voters were required to attend electoral precincts and fill out special forms ; this would enable them to cast their ballots during the presidential election of DATE .

Along with other opposition parties , the applicant party challenged the lawfulness of those rules in court . On DATE ORG dismissed the claim as unsubstantiated . With regard to the applicant party , the court stated that it lacked victim status as it had failed to show what direct and specific harm the preliminary voter registration procedure for the presidential election could possibly have caused to its interests .

On DATE Mr PERSON was declared President of GPE . By an Ordinance of DATE , the new President appointed CARDINAL members of the ORG , CARDINAL of whom was given authority to appoint CARDINAL members in ORG ( “ the DECs ” ) under Article CARDINAL(CARDINAL ) § CARDINAL of the ORG .

CARDINAL political parties and blocs were registered by the ORG on DATE as candidates for the repeat parliamentary election , including the applicant party and the ruling coalition of the President ’s ORG and PERSON NORP . ORG had previously won the DATE municipal elections in GPE .

For the purposes of the repeat election , the ORG passed another decree on DATE ( Decree no . ORG ) , pursuant to which ORG ( “ the PECs ” ) had to post preliminary lists of voters in their bureaux , data which had been gathered in the course of the preliminary registration of voters for the presidential election . Between CARDINAL and DATE , voters were to attend the electoral precincts again to verify that their names were on the lists . If a voter found that he or she was missing from the list , a petition for correction was to be filed with the relevant ORG . On DATE the PECs were to send corrected versions of the preliminary electoral rolls to the relevant ORG , which was required to produce final electoral rolls and remit them to the PECs for a further public examination . DATE , voters were to recheck the final lists and request corrections if necessary . The Decree also envisaged adding the names of voters who had not been included in the preliminary registration to the lists on DATE itself .

The rationale behind the introduction of this system of voter registration was explained by the ORG Chairman in a public statement : “ If a voter does not want to participate in the election , does not engage in politics , does not want to cooperate with the ORG , then the ORG is also under no obligation to ensure that this voter is on the unified electoral roll . ”

The repeat election , based on the system of proportional representation , was held as planned on DATE . Numerous complaints about irregularities on DATE were subsequently filed with electoral commissions , including the ORG , and with the courts .

On DATE the ORG issued Ordinance no . CARDINAL/CARDINAL , which annulled the election results for all the PECs in the ORG and PERSON electoral districts ( nos . CARDINAL and CARDINAL ) in GPE ( “ the AAR ” ) , where CARDINAL and CARDINAL voters were registered respectively . The CEC Ordinance did not explain which legal provision had entitled it to take this annulment decision . It simply noted that complaints had been filed about voting irregularities in these CARDINAL districts . The complaints requested that the investigative measures envisaged by LAW of the ORG be undertaken by the ORG . However , “ in view of the nature of the irregularities alleged in the complaints ” , there was , according to the ORG , no point in resorting to such measures . Consequently , the challenged election results in the ORG and PERSON districts were to be annulled and , in accordance with LAW of the ORG , the polls were to be repeated there . The new date was set for DATE ( for more details , see paragraphs CARDINAL and CARDINAL below ) .

On DATE the ORG issued rules of procedure ( Decree no . CARDINAL ) for the posting of electoral rolls in the various precincts of the ORG and PERSON districts . As before the presidential election of DATE and the repeat parliamentary election of CARDINAL March CARDINAL , voters were expected to pay preliminary visits to the precincts in order to ensure that their names were on the lists .

On DATE , DATE , the polling stations in the GPE and PERSON districts failed to open ( see paragraph CARDINAL below ) . On DATE , however , the ORG tallied the votes in the repeat election of CARDINAL March CARDINAL . It stated that CARDINAL votes had been cast , while CARDINAL voters had registered . The applicant party received PERCENT of the vote , which was not enough to clear the PERCENT threshold and thus to obtain seats in ORG .

According to TIME of the ORG meeting of DATE , the applicant party ’s representative , as CARDINAL of the CARDINAL members of the ORG , objected to the finalisation of the election results . The representative argued that the ORG could not lawfully end the countrywide election without first having held an election in the GPE and PERSON districts . The Chairman of the ORG replied that the fact that the polling stations had not opened in those districts was the fault of the PERSON authorities . He also added that , even if the election had been conducted in those districts , this would not have affected the final results . By a majority vote , the Chairman ’s proposal to approve the vote tally was accepted and the relevant LAW ( no . CARDINAL ) was adopted on the basis of Articles CARDINAL and CARDINAL of the ORG .

On DATE the newly elected parliament convened for its first session . After DATE of tension , the Head of the ORG , Mr A. ORG , stepped down on DATE , fleeing the country .

On DATE the applicant party appealed to ORG against Ordinance no . CARDINAL/CARDINAL ( see paragraph CARDINAL above ) . Alongside the main claim for annulment of the GPE in question , the applicant party asked the court to apply an interim measure whereby ORG would be forbidden from convening for its first session until the dispute had been resolved . The applicant party argued that , if ORG convened , it would become impossible to enforce the judgment should the court find in the applicant party ’s favour . On DATE ORG declared the claim admissible but refused to apply the requested interim measure . It reasoned that the claim could not have any suspensive effect under LAW § CARDINAL of the ORG and noted that , pursuant to LAW , the first sitting of a newly elected parliament was to be held within DATE of the finalisation of the election results .

The applicant party submitted CARDINAL major arguments to ORG , which dismissed its claim on DATE .

Firstly , the applicant party challenged the rules on the composition of electoral rolls . It claimed that many eligible voters who had failed to comply with the procedure for preliminary registration had been refused the right to cast their votes on DATE . At the same time , the obligation to register in advance had created a kind of carousel to facilitate ballot fraud in which some voters could register in different electoral precincts and thus cast their vote more than once . As a result of those irregularities , the applicant party claimed that it had lost votes . It also complained that the ORG had not had competence to change the rules on the composition of electoral rolls , this prerogative being reserved solely for ORG , which alone was entitled to make the relevant legislative amendments to the ORG . In the applicant party ’s view , the fact that many voters had been refused the right to vote because of the new rules , and that the Government had total control over the electoral administration , had allowed the election results to be rigged . Based on statistical data about high voting activity across the country at particular times , provided by its representatives in the electoral commissions of ORG , ORG and PERSON regions , the applicant party claimed that vote - riggers had fraudulently cast CARDINAL ballots in favour of the presidential and pro - presidential parties at TIME , TIME on DATE .

ORG found the latter allegation unsubstantiated , reasoning that the applicant party had submitted no relevant evidence in support of it . As to the voter registration rules , the court noted that the ORG had issued Decree no . ORG ( see paragraph CARDINAL above ) by which it had remedied the deficiency of LAW of the ORG , the effect of which had been suspended by ORG on DATE ( see paragraph CARDINAL below ) . Since that GPE allowed voter registration on DATE of election , the allegation that the voters who had missed preliminary registration deadlines were subsequently denied the right to vote was held to be ill - founded .

Secondly , the applicant party complained that its representatives at various levels in the electoral commissions had been prevented by other members from fulfilling their duties properly . They had been threatened and instructed not to write complaints about violations observed , namely when votes cast in favour of ORG were attributed to the presidential and pro - presidential parties . The applicant party complained that such permissive conduct was due to the composition of the electoral commissions , since , in every commission at all levels , CARDINAL out of the CARDINAL members were representatives of the presidential and propresidential parties .

Thirdly , the applicant party argued that the impugned LAW of DATE was contrary to LAW of the ORG , since it did not specify the total number of voters and the number of votes cast in each district .

In reply to these latter arguments , ORG reasoned that the applicant party should first have complained about the threats to its representatives before a district court . However , it gave no response to the complaint about the pro - presidential composition of the electoral commissions . As to the ORG ’s failure to include information in the GPE about the total number of voters and the number of votes cast in each district , the court stated that this was not a gross violation of electoral legislation and could not therefore be regarded as grounds for invalidating that administrative act .

Lastly , the applicant party claimed that the finalisation of the countrywide election results without elections being held in the GPE and PERSON districts had been unlawful . In view of the fact that there were CARDINAL voters in those districts and that the applicant party needed CARDINAL votes in order to clear the PERCENT legal threshold , it complained that it had been unlawfully deprived of a genuine chance to obtain seats in ORG . It noted that ORG was , by and large , supported in the PERSON constituency .

ORG replied as follows :

“ It is true that the repeat parliamentary election results were annulled in the ORG and PERSON electoral districts and the ORG called a new repeat election by its Ordinance ... [ of DATE ] . However , due to well - known events [ tensions between the central and local authorities ] , the election was not held ... in those districts on account of factual circumstances , this being a ground for the annulment of an administrative act [ the CEC Ordinance of DATE ] under LAW ( g ) of LAW of GPE . ”

Relying on LAW of the ORG , ORG decided that the repeat election could be considered as having been held , since , according to the vote tally , CARDINAL of the total number of voters had taken part in it .

Acting as a private individual , the Chairman of the applicant party challenged CEC Decree no . CARDINAL of DATE ( the rules on the composition of electoral rolls ) and Ordinance no . CARDINAL of DATE ( the vote tally ) before ORG . He claimed that the system of preliminary voter registration , the disfranchisement of the GPE and PERSON constituencies and the presidential control of the electoral administration had infringed the constitutional principle of free and fair elections .

On DATE ORG declared the claim inadmissible . It reasoned that , since it was not a normative act , the disputed Ordinance could not be challenged before ORG . As to the impugned Decree , it considered that , firstly , the claimant had failed to substantiate how this normative act had infringed any of his constitutional rights . Secondly , it stated that the claimant , as a private person , did not have standing to challenge the constitutionality of the election , this right being reserved by LAW for the President of GPE and a specific number of MPs .

“ The mandate of the previous ORG shall cease immediately after the first meeting of the newly elected ORG . ”

“ The first sitting of the newly elected ORG shall be held DATE of the elections . DATE of the first sitting shall be determined by the President . ORG shall begin its work when the election of CARDINAL of the members of parliament has been confirmed . ”

LAW “ A void legal - administrative act ”

“ A legal - administrative act shall be void as from its adoption if its implementation is impossible for factual reasons . ”

“ CARDINAL . The general electoral roll is a list of persons with active electoral rights , who are registered in accordance with the law ...

NORP The general list of voters shall be compiled ... on the basis of the data available at the territorial agencies of ORG for the ORG , ... data available at the corresponding agencies of ORG , ... data from local selfgovernment and/or administrative agencies , ... data on internally displaced persons communicated by ORG or by its territorial agencies , ... data communicated by ORG , the ORG and ORG , ORG and ORG , ... [ and ] data communicated by NORP consular authorities ...

A registered party ... and voters ... shall be entitled to consult the public version of the general list available at the LOC , ORG ( an elector having the right to consult only the data concerning his / her person and his / her family members ... ) and , in the event of any inaccuracy , to request – not later than DATE prior to the date of the election – that the appropriate amendments be made to the voters’ data and the electoral roll ...

The electoral administration shall , on its own initiative or following an application under LAW , review the general electoral roll ... A decision by ORG rejecting [ petitions for ] amendments to the voters’ data and electoral roll shall be reasoned and , if requested , transmitted to the applicant from DATE following its adoption .

[ The above - mentioned decision ] can be appealed to the competent district / city court within DATE of its adoption . Where the court rules in favour of the applicant , the ruling shall , within DATE but no later than by DATE prior to DATE , be delivered to ORG , which shall immediately furnish the relevant information to ORG ... Electoral commissions shall immediately make the appropriate amendments to the electoral rolls ...

It is prohibited to make amendments to the electoral roll in DATE prior to the election date ; from DATE before [ the election date ] , amendments shall be made only by a court ruling . ”

The application of several provisions of LAW regulating the timelimits for compiling and examining electoral rolls , including LAW , was suspended on DATE by ORG . Finally , § CARDINAL was invalidated on DATE by the same court ( see paragraph CARDINAL below ) .

Under LAW , the special list of voters included ( a ) electoral administration officers who , on DATE , were working in an electoral precinct other than that of their residence ; ( b ) voters who , on DATE , were being treated in hospital or another in - patient centre ; ( c ) voters who , on DATE , were being held in police custody or pre - trial detention ; ( d ) voters who were at sea on DATE ( they are enrolled at the relevant vessel ’s port of registration ) ; and ( e ) voters who were abroad on DATE and registered at the relevant NORP consulate as well as voters who were not on the consular register , but had registered in a ORG formed abroad or in a consulate .

LAW , DATE , DATE , DATE , DATE and DATE stipulated that the head of the appropriate institution with responsibility for the voters referred to LAW was to compile the special list , be responsible for the accuracy of the data entered on it , which was to be attested by his / her signature , and was to deliver it to the competent electoral commission .

“ CARDINAL . The electoral administration of GPE is a legal entity of public law , which is established in accordance with this PERSON and shall exercise public authority within the limits specified by it . ...

NORP The electoral administration is independent , within the limits of its competence , from other ORG institutions .

NORP The electoral administration is a centralised system composed of ORG of GPE [ ORG ] , ... ORG [ DECs ] , [ and ] ORG [ PECs ] ... The ORG is the supreme body of the electoral administration of GPE . ...

The ORG is accountable to the ORG of GPE ... ”

“ A member of the electoral administration may not join a party , and if he [ or she ] was a party member , [ that person ] must withdraw from the party or suspend his [ or her ] membership for the term of office in the electoral administration ... ”

NORP The decision of an electoral commission shall be considered to have been adopted if it is supported by the majority of the votes cast ( unless the PERSON requires a higher quorum ) , but not CARDINAL of the commission members .

If the vote is tied , the chairman of the session shall have the casting vote . ...

The ORG shall adopt decrees by CARDINAL of its members . No decree shall be adopted DATE before the election date . ”

Pursuant to Articles CARDINAL § CARDINAL ( f ) , CARDINAL § CARDINAL , DATE and QUANTITY , a ORG was competent to receive , examine and decide on requests for a recount or to annul election results in the relevant precincts , based on allegations of voting irregularities .

“ CARDINAL . No DATE after the date of the ballot , the ORG , based on the protocols received from the DECs and PECs , shall consolidate the results of the parliamentary and presidential elections ... and approve by its LAW of the vote tally .

CARDINAL(CARDINAL ) The ORG is prohibited from finalising the election results before the resolution of election - related disputes in the courts of general jurisdiction and without consideration of the outcome of those disputes . ...

The ORG shall consolidate the election results and determine : ( a ) the total number of voters ; ( b ) the turnout of voters ; ( c ) the number of ballots deemed invalid ; ... and ( e ) the number of votes received by candidates . ”

“ Lodging appeals with a court shall not have a suspensive effect on the decision . ”

Under LAW , a party or bloc could cancel the nomination of CARDINAL of its candidates even after the latter ’s authority as an MP had been officially recognised .

An election held under the proportional system shall be considered to have been held if CARDINAL of the total number of voters took part in it . ...

Seats in ORG shall be awarded only to party lists that receive PERCENT of the votes cast .

NORP In order to determine the number of seats received by a party list , the number of votes received by this list must be multiplied by CARDINAL and divided by the total number of the votes received by the parties [ which cleared the PERCENT threshold ] ...

NORP If , due to gross violation of the present law , the voting results are deemed invalid in CARDINAL of the electoral precincts , or in ... precincts where the total number of voters represents PERCENT of the total number of voters in the electoral district concerned , the election results for the entire electoral district shall be deemed invalid and the ORG shall set a date for a repeat election .

If any application , complaint or dissenting opinion by a ORG member is submitted requesting revision or invalidation of the voting results , the ORG shall take a decision by passing an Ordinance for or against the opening of packages and the recounting of ballot papers ( special envelopes ) received from the relevant ORG . The ORG is empowered to collate the election results based on the ORG protocols . ...

A second ballot under the proportional representation system shall be held when the total number of voters in the precincts [ where the voting results were invalidated ] is PERCENT of the total number of voters in GPE . In such cases , the second ballot shall be held within DATE of the general election .

If the election under the proportional representation system is declared to have been held but none of the parties or electoral blocs have managed to clear the required threshold , a repeat election shall be held within DATE of the general election , by Ordinance of the ORG .

Only those parties and electoral blocs which received PERCENT of the votes in the general election shall have the right to take part in the repeat election . The party lists ... shall remain unchanged . Amendments to them may be introduced only in accordance with the general rules established by this PERSON .

The summary protocol of the final election returns must disclose the names and numbers of those electoral districts and precincts in which the election was declared invalid , as well as the number of voters in them , the reason for declaring the election invalid , the total number of voters in each electoral district , the turnout of voters , [ and ] the number of members of parliament elected , with their names listed in alphabetical order . ”

NORP If an election is declared ‘ not held’ , or if the election results are deemed invalid in a multi - seat electoral district , a repeat election shall be held . If the mandate of the parliamentarian elected in such a district is suspended before its term , a mid - term election shall be held .

The repeat election shall be held within DATE ... The ORG shall set the election date and time - limits for electoral arrangements by ORG DATE after the initial election ...

If an MP who resigns was elected through the party list of a party participating independently in the elections , the seat of such an MP shall be occupied within DATE by the next candidate on the same list , provided that that candidate agrees to become an MP within DATE of the vacancy arising . Otherwise the vacant seat shall be occupied by the next candidate on the list , etc . If there is no other candidate named in the party list , the parliamentary mandate shall be deemed cancelled . ”

Unlike the parliamentary election under the majority system , neither Article CARDINAL nor any other provision of the ORG provided for the possibility of conducting mid - term , repeat or other types of interim polls as under the proportional system after the countrywide election results had been finalised by the ORG ( see paragraph CARDINAL below ) .

An amendment to the ORG , introducing provisional Articles CARDINAL , CARDINAL ) and CARDINAL ) , was enacted on DATE for the specific purpose of re - forming the ORG for the regular parliamentary election of DATE .

Pursuant to LAW , the ORG was to be composed of CARDINAL members and its sessions were considered to be valid if attended by CARDINAL of the members . Article CARDINAL § CARDINAL initially stated that the chairman of the ORG was to be appointed by ORG following his or her nomination by ORG ) . However , this provision was amended on DATE and , under the new rule , the chairman was to be appointed by the President of GPE , with the approval of ORG . LAW further established that CARDINAL members of the ORG were also to be appointed by the President .

Pursuant to LAW , the remaining QUANTITY members of the ORG were to be appointed as follows :

( a ) CARDINAL members by the party / electoral bloc which had come second in the parliamentary election of DATE ;

( b ) CARDINAL members by the party / electoral bloc which had come third in the parliamentary election of DATE ; and

( c ) one member by each of the CARDINAL parties / electoral blocs which had obtained the best results in DATE local election in GPE , held under the proportional electoral system , unless that party / electoral bloc was entitled to appoint a commission member under the preceding subparagraphs ( a ) and ( b ) .

Pursuant to Articles CARDINAL(CARDINAL ) § CARDINAL and CARDINAL ) § CARDINAL , the composition of the DECs and PECs was similar to that of the ORG . The chairman of the ORG was appointed by the President of GPE with the approval of ORG ( Article CARDINAL ) § CARDINAL ) , while the chairman of the ORG was appointed by the chairman of the corresponding ORG ( LAW ) . CARDINAL members of the DECs were appointed by CARDINAL of the members of the ORG who had been appointed by the President of GPE and granted this power by him or her ( Article CARDINAL ) § CARDINAL ) . CARDINAL members of the PECs were appointed by CARDINAL of the CARDINAL members of the corresponding ORG , appointed in accordance with LAW .

By an amendment of DATE , the provisional rules under Articles CARDINAL , CARDINAL ) and CARDINAL ) , as described above , were annulled .

Following an application by CARDINAL voters , on DATE ORG suspended the effect of LAW , DATE , DATE and DATE and LAW ( e ) and CARDINAL of the ORG in the part regulating the time - limits for adding and revising voters’ names on electoral rolls . On DATE ORG invalidated LAW of the ORG , upholding the constitutionality of the rest of the disputed provisions . The relevant part of the judgment provides as follows :

“ ... The registration of voters through the unified electoral roll is what provides citizens with the basis for exercising their right to vote . Consequently , under the disputed provision the right to vote is being denied to those citizens who do not find their names on the roll and are unable to register during DATE preceding the election date , whereas a court ruling is necessary for registration DATE prior to the election ...

The registration of voters is the responsibility of the relevant ORG authorities . When a citizen ’s name is not found on the electoral roll , this is [ LOC ] omission and should not limit the citizen ’s right to vote . LAW should secure not merely formal but real mechanisms that would enable the exercise of the constitutional right . ”

The relevant provisions of the ORG provide as follows :

NORP ... [ T]he ORG asks the NORP authorities to adopt without delay a number of measures , which must be fully implemented when the forthcoming parliamentary elections are held on DATE , in particular :

( i ) to amend LAW and all other electoral legislation and regulations , ... so as to :

( a ) modify the composition of ORG and the electoral commissions at lower levels , in order to promote the principle of balanced , fair and equal representation of all political forces ;

( c ) NORP ensure a clear segregation between governmental structures and the electoral authorities , and introduce a principle that the latter must be completely impartial ; ...

( ii ) to revise the electoral rolls , and create as soon as possible a single , centralised and computerised register of electors , and to put an end to the practice of registering voters’ names on supplementary lists on DATE itself , a practice which entails a considerable risk of fraud .

The ORG also declares its concern about the current reshaping of NORP political life and the risk of the disappearance of all parliamentary opposition after the forthcoming elections and , in consequence , of any true institutional counterweight . If the elections were to culminate in the sole representation in ORG of the ruling coalition , the ORG might fear for the future of democratic pluralism in GPE . It therefore recommends that the NORP authorities amend the corresponding legislation so as to reduce the electoral threshold in the proportional representation system from PERCENT to PERCENT . ”

The Code of Good Practice in Electoral Matters was adopted by ORG at its CARDINALst Plenary Session ( DATE ) and submitted to the PACE on DATE . Its relevant provisions provide as follows :

“ Regulatory levels and the stability of electoral law ”

“ ( a ) ORG from rules on technical matters and detail DATE which may be included in the regulations of the executive – , rules of electoral law must have at least the rank of a statute .

( b ) The fundamental elements of electoral law , in particular the electoral system proper , membership of electoral commissions and the drawing of constituency boundaries , should not be open to amendment DATE before an election , or should be written in the constitution or at a level higher than ordinary law . ”

“ The organisation of elections by an impartial body ”

“ ( a ) An impartial body must be in charge of applying electoral law .

( b ) Where there is no long - standing tradition of administrative authorities’ independence from those holding political power , independent , impartial electoral commissions must be set up at all levels , from the national level to polling station level .

( c ) NORP The central electoral commission must be permanent in nature .

( d ) It should include :

( i ) CARDINAL member of the judiciary ;

( ii ) NORP representatives of parties already in ORG or having scored at least a given percentage of the vote ; these persons must be qualified in electoral matters .

It may include :

( iii ) a representative of ORG ;

( iv ) NORP representatives of national minorities .

( e ) Political parties must be equally represented on electoral commissions or must be able to observe the work of the impartial body . Equality may be construed strictly or on a proportional basis ...

( f ) The bodies appointing members of electoral commissions must not be free to dismiss them at will .

( g ) Members of electoral commissions must receive standard training .

( h ) It is desirable that electoral commissions take decisions by a qualified majority or by consensus . ”

A selected passage from ORG in LOC , issued on DATE , provides as follows :

“ CARDINAL . Although in many countries the influence of the executive government on the composition of the electoral commissions has , in general , greatly been reduced , in CARDINAL GPE still a significant number of commission members are nominated and appointed by the executive government , e.g. the President of the Republic or the Ministry of the ORG or ORG . For example , in GPE CARDINAL ( out of CARDINAL ) members of ORG are appointed by the President , not including those members appointed by the governing parties in ORG . To avoid the risk of governmental interference in the commission ’s work , as a rule the number of commission members nominated and appointed by the executive government should , if at all , be very low . ”

The relevant excerpts from the Report read as follows :

“ Preliminary voter registers released in DATE contained significant anomalies and errors . The number of voters registered in a number of individual districts showed a wide variation from previous elections ...

Inaccurate lists were of concern not only because errors could deny eligible citizens the right to vote but ... increased the possibility of election fraud .

Reports on errors in voter lists included : omitting entire apartment blocks or streets ; voters being listed in the wrong districts ; listing many deceased persons ; and large numbers of duplicate entries . Despite the enormity of the task , many PECs worked conscientiously to rectify errors . However , some DECs failed to supply the PECs with voter lists , and many PECs appeared unfamiliar with new registration procedures and applied inconsistent methods . Many failed to display lists in a systematic or practical manner ...

Other problems included : a CARDINAL,CARDINAL-page list of deceased persons in GPE that was unusable as it was not broken down by district or precinct ; ORG [ internally displaced person ] voters not being systematically included in lists ; and significant numbers of voters lacking ID documents ...

Unexpectedly , on DATE , the ORG decided to cease work on the central database altogether , thereby jettisoning the effort to improve the accuracy and transparency of voter registers . The PECs were permitted to use either handwritten or computerised lists . This decision dramatically altered the voter registration framework and caused a complete lack of uniformity in the type of list used . ”

This Report was submitted by the respondent Government as part of their observations . Selected passages from its summary provide as follows :

“ Conditions in GPE were once again not conducive to democratic elections . Intimidation and physical abuse of opposition supporters and journalists underlined the democratic deficit in GPE evident during this election process , effectively creating a dual standard for elections in GPE .

The ORG administered these elections in a credible and professional manner . However , at times the ORG appeared to exceed its authority , for example , by extending legal deadlines or modifying other legal provisions through decrees . Several aspects of the election process were improved over previous elections , although some ORG decisions in the post - election period cast doubts about its impartiality .

Voter registers were further improved and consolidated in a computerised database ... However , further efforts are needed to complete voter lists , correct remaining errors , and improve their accuracy .

The lack of political balance on election commissions remained a source of concern . Some DECs and PECs failed to maintain appropriate distance from the ruling parties , and some local authorities interfered in the work of lower - level election commissions . President PERSON offer to reduce the number of his appointees on the DECs and PECs from CARDINAL addressed some of these concerns . However , these changes came late in the electoral process and should have been extended to the ORG . ...

The tabulation of results at district level was marred by irregularities in a number of DECs . In some cases , election material was delivered unsealed or inadequately secured , protocols were completed or changed at the ORG level , and in CARDINAL case , the ORG members ‘ negotiated’ the results . The handling of electionrelated complaints at some DECs was also inadequate .

An analysis of the ORG results made available by the ORG showed a number of anomalous or implausible results in a significant minority of districts . Such anomalies included : a rapid increase in voter turnout during TIME of voting ; an implausible voter turnout , in some cases exceeding PERCENT , and sometimes coupled with a share of the vote for the ruling parties in excess of PERCENT ; and instances of an unusually high percentage of invalid votes .

A total of CARDINAL polling stations were invalidated by the DECs due to irregularities . The ORG cancelled the results in CARDINAL districts in PERSON ( GPE and PERSON ) and ordered repeat elections for DATE , which did not take place due to security reasons . The ORG ’s decision to cancel the results and repeat elections in entire districts appeared to be based on questionable legal arguments .

Overall , the following elements marked positive developments for the election process :

• improvements in the administration of the election process ;

• the enhanced professionalism and openness of the ORG ;

• commendable efforts to improve , computerise and consolidate the voter lists , although they remain incomplete ;

• with the exception of PERSON , a peaceful and free pre - election period , although there was a late and very limited campaign ;

• freedom of expression enjoyed by the media , with the exception of PERSON ; ...

However , some aspects of the process need to be addressed in order to remedy issues of concern and continue forward progress , including :

• the continuing lack of a clear separation between ORG administration and political party structures , and the ongoing potential for misuse of ORG administrative resources ;

• the inability to ensure the balanced composition of election commissions at all levels ;

• the interference by some local authorities in the functioning of a number of lowerlevel commissions , thereby lessening their independence ;

• continuing irregularities in some polling stations , as indicated by implausible and anomalous results ;

• irregularities at a relatively high number of DECs during the tabulation process , and the failure of some DECs to properly address complaints after DATE ;

• the adoption of some decisions by the ORG , such as the cancellation of results in CARDINAL entire districts , which seem of questionable legality and could be perceived as having been politically motivated ... ”

With regard to the new system of voter registration , the ORG noted as follows :

“ The ORG implemented a number of recommendations made by the ORG in previous reports , including : ...

• consolidating the voter list into a central , computerised database ;

• providing an additional period for citizens to register to vote and for a periodic display of newly - printed voter lists ...

The number of registered voters under - represented the number of eligible voters , partly because an active system of voter registration was instituted in DATE and again in DATE . Under an active system , citizens unwilling or unable to register are excluded from the lists ...

[ T]he ORG began the consolidation of handwritten voter lists into a single computerised database . The accuracy of this data was verified , and many errors were eliminated .

The ORG produced voter lists according to the language in which they were originally compiled , which increased the transparency of the process for non - NORP speaking voters ... While observers expressed increased confidence in the voter lists , particularly compared to DATE , shortcomings were noted ...

After the election , the ORG announced that CARDINAL voters had registered to vote on DATE , bringing the total number of registered voters to CARDINAL . ”

The ORG gave an account of the tensions between the central and PERSON authorities on the eve of the repeat parliamentary election of DATE :

“ The situation in the [ ORG ] remained tense , especially after a state of emergency was imposed on DATE . The state of emergency decreased civil liberties , and consequently limited even further the campaign opportunities for parties in opposition to PERSON leader PERSON . Relations between the NORP government and the PERSON authorities deteriorated following the DATE events . On DATE , President PERSON was denied entry into PERSON , where he intended to campaign . The NORP government reacted by imposing economic sanctions on PERSON , and tensions mounted significantly . The situation seemed to improve after an agreement was reached during a meeting between PERSON and PERSON on DATE . However , the partial implementation of the agreement did not significantly reduce the tension prior to the elections ...

Opposition gatherings were violently suppressed or attacked by supporters of the PERSON authorities ... Offices of parties in opposition to the PERSON authorities and of non - governmental organisations ( NGOs ) were ransacked , opposition activists and journalists were assaulted or abducted , and members of election commissions were intimidated . While incidents of violence and intimidation also marred previous elections in PERSON , the intensity and frequency with which they occurred this time was higher . Overall , the environment in PERSON was once again not conducive to a meaningful democratic contest during this election process . ”

The ORG also commented on the situation surrounding the ORG ’s decision of DATE to cancel the election results in the GPE and PERSON districts and call for repeat polls in those districts :

“ On DATE , the ORG decided to annul the district - wide election results in GPE and PERSON and repeat polling in these CARDINAL districts on DATE . In addition , the ORG dismissed the entire membership of the CARDINAL DECs and created CARDINAL temporary groups composed of ORG members and ORG staff members to organise the repeat elections .

On DATE , the ORG temporary groups were dispatched to PERSON but they rapidly encountered active resistance . On DATE , the temporary groups were forced to leave the PERSON territory by crowds of people . On DATE , the ORG Chairman was prevented from entering PERSON at Choloki checkpoint on the administrative border . On DATE , at a press conference , the ORG Chairman declared that for security reasons elections in GPE and PERSON would not be held on DATE . Nevertheless , the elections were not officially cancelled .

The ORG based its decision to annul the district - wide election results in GPE and PERSON and repeat polling in these CARDINAL districts , respectively on Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of the ORG .

Prior to DATE , the ORG [ the Election Observation Mission ] attempted to clarify with the ORG Chairman whether the ORG had the authority to cancel the ORG results . During these discussions , he [ the ORG Chairman ] indicated that it was certainly a questionable issue . While ORG Article CARDINAL § CARDINAL grants the ORG the right to examine the ORG documentation , recount ballots and sum up results based on PEC protocols , the ORG does not specifically grant the ORG the authority to annul the results in an entire district .

In fact , the ORG simply cancelled the entire district results without hearing testimony or investigating the circumstances at each ORG or establishing with any certainty if the number of votes at the annulled polling stations was sufficient to meet the criteria outlined in LAW . Furthermore , the ORG did not examine the electoral material . Elsewhere , where results were annulled this was done by DECs or local courts .

Notwithstanding the fact that violations took place in GPE and PERSON districts , the decision to annul their results and call a repeat polling appeared inconsistent with the fact that major violations in other districts did not result in the annulling of the ORG results there . Moreover , the legal arguments used and legal basis were weak . The ORG believes that LAW relates to majoritarian elections rather than the proportional contest . The citing of this article rather than LAW ( which specifically mentions its applicability to proportional elections ) raises the question as to whether GPE is a single electoral unit for the proportional election or CARDINAL ‘ fragments’ . This issue is not adequately defined in the ORG . ...

Should Article CARDINAL § CARDINAL be applied , then elections should also be repeated elsewhere , PERCENT of voters within a district were affected by the annulling of results . Thus , it appeared that the ORG adopted different and legally questionable procedures just for these CARDINAL districts .

[ Election observers ] appealed the ORG decision to invalidate the election results and to set repeat elections in GPE and PERSON . In the course of the hearing it became apparent that ORG Order CARDINAL/CARDINAL was based on a questionable decision - making procedure . The ORG could not prove that it made the decision to annul the district results on a PEC - by - PEC basis . ORG upheld the ORG decision and challenged the election ORG authority to bring the case . The court decided that their appeals were [ in]admissible because their legitimate rights or interests were not damaged . [ The observers ] appealed this decision at ORG , that ruled against [ them ] in a closed session .

The decision to dismiss the case , based on the plaintiffs not having the legal right to appeal , was highly questionable . The ORG does not clearly state that observers can appeal a ORG decision to invalidate the ORG results since there is no provision in the ORG that the ORG can overrule a ORG in such cases . Consequently , the decision of the ORG had to be questioned , not the rights of observers . The dismissal of such an important and well - founded case ... contributed to the impression that the [ electoral ] law was applied in a non - transparent and inconsistent manner . ”

In CARDINAL of its working documents , ORG examined the systems of voter registration in GPE , GPE , GPE , GPE , the GPE , GPE , GPE and GPE .

With the exception of GPE and GPE , the initial registration of voters and subsequent amendments to the electoral rolls in these GPE are automatically carried out by the authorities on the basis of mandatory domiciliary declarations by the population .

NORP In GPE , the compilation and modification of electoral rolls depend on the voters’ individual requests to that end . NORP law even envisages individual criminal responsibility for those who fail to take the necessary steps for electoral registration .

In GPE , the system is mixed . The authorities compile electoral rolls automatically , on the basis of domiciliary declarations and the general census of the population . However , all subsequent modifications to the rolls are contingent upon voters’ individual declarations to that end .

ORG ( IDEA ) has identified CARDINAL broad types or models of electoral management – the independent , governmental and mixed models ( see ORG : ORG ) . The independent model of electoral management exists in those countries where elections are organised and managed by an electoral management body which is institutionally independent and autonomous from the executive branch of government , and which has , and manages , its own budget . It may be accountable to the legislature , the judiciary , or ORG , but not to the government . The governmental model exists in those countries where elections are organised and managed by the executive branch through a ministry ( such as ORG ) and/or through local authorities . In the mixed model of electoral management , there are usually CARDINAL component bodies , and dual structures exist : a policy , monitoring or supervisory body that is independent of the executive branch of government and an implementation body located within a ORG and/or local government .

According to the classification system adopted by the IDEA , among the CARDINAL member ORG there are CARDINAL countries , mostly from central and eastern LOC , which follow the independent model . There are sixteen GPE which have adopted the governmental model , and CARDINAL the mixed model . Among the thirteen Contracting States considered in the IDEA handbook , CARDINAL are classified as following the independent model ( GPE , GPE , GPE and GPE ) , CARDINAL the governmental model ( GPE , GPE , GPE , GPE , GPE and GPE ) and CARDINAL the mixed model ( GPE , GPE and GPE ) .

There are no common standards among Contracting States as regards the composition of electoral commissions and the appointment of their members . As regards the authority which is competent for formally appointing the commission members , there are some countries which provide for a unique institution ( the parliament in GPE , GPE and GPE ; the Head of ORG in GPE and GPE ; and the government in GPE ) . Even in these cases , however , other institutions and actors may intervene in the nomination process . For instance , in GPE the members of the ORG are appointed after consultation with parliamentary parties and coalitions . In GPE , the members of ORG are elected on the basis of a motion submitted by the Minister of the ORG , after taking the parties’ recommendations into account . In GPE , Her Majesty appoints the commission members on an address from ORG , made after consultation with the leaders of registered parties .

There are other systems which provide for a mixed appointment by different State organs , including the judiciary . In GPE , CARDINAL member is appointed by the President , CARDINAL by the government and CARDINAL by the ORG . In GPE , ORG is composed of a judge appointed by the judiciary , citizens designated by the ORG and CARDINAL specialists designated by governmental departments . The NORP electoral boards have a quasi - judicial composition , since the majority of their members are directly appointed from among sitting judges by ORG , whereas the rest are selected from among experts proposed by the political parties .

In systems which can be regarded as governmental from the standpoint of electoral management , such as GPE or GPE , the majority of the assessors of the electoral boards / committees are appointed by the chairman ( a judge in GPE ; ORG nominated by ORG in GPE ) among electors . In GPE , most of the assessors are proposed by the political parties . In GPE , electoral boards responsible for the lawfulness of the electoral lists and candidates are created within ORG and other tribunals . The difference with the countries mentioned above is that , in such countries , electoral bodies are set up for the exclusive purpose of specific elections .

In some GPE , such as GPE , GPE , GPE , GPE and GPE , the electoral commissions may be classified as expertbased . In others , such as GPE , GPE or GPE , the commissions are composed of experts and representatives of political parties ( combined membership ) . The electoral legislation in GPE and GPE provides for the possibility of expanded membership of the commissions to include representatives of political parties which have submitted electoral lists .

The general trend is that decisions are taken by a simple majority ( GPE , GPE , GPE , GPE , GPE , GPE and GPE ) . Only in GPE ( a CARDINAL majority , except for municipal commissions ) , GPE ( a CARDINAL majority ) and GPE ( an absolute majority ) , is a qualified majority required . In GPE , if a decision can not be reached at the first meeting , then at the second meeting the decision is taken by a majority vote .

In the case of a tie , the chairman has the casting vote in GPE , GPE , GPE and GPE . This helps to avoid eventual obstructions to the decision - making process . By contrast , in GPE , in the event of a tie , the proposal is deemed to be rejected . The fact that a chairman with the casting vote is directly appointed by the president of the Republic or the executive government , as in GPE , is of course a relevant factor to be borne in mind for the assessment of the independence of an electoral agency . This can only be compared to the position of ORG or ORG in ORG and ORG in GPE , whose appointment depends on ORG or ORG . In both cases , the officer is the chairman of the committee and has a casting vote . By contrast , in the majority of the countries examined , the chairman is elected by the electoral commission itself ( GPE , GPE , GPE , GPE and GPE ) .

One of the guarantees of election ORG independence is that persons who could be involved in an inherent conflict of interests should not be allowed to be appointed to electoral commissions , in particular registered candidates . This kind of rule can be found in the majority of GPE considered ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) . Apart from candidates standing for election , incompatibility requirements may apply to members of political parties or organisations nominating candidates ( GPE and GPE ) , members or employees of registered parties ( GPE ) , members of parliament , judges in ORG , servicemen in the armed forces , officers in ORG ( GPE ) , the president of the Republic , heads of administrative offices , civil servants , and mayors ( GPE ) .

In order to achieve an adequate balance between political representatives in the commission , there are some systems which provide specific rules . For instance , in GPE and GPE , no political party or coalition may have a majority within the commission . In GPE , the chairman and the secretary must belong to different political parties . In GPE , the chairman and the vice - chairman of an electoral board may not be representatives of the same political party or coalition .


Remainder inadmissible;Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

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

On DATE ORG allowed the applicant 's claim against the ORG - owned enterprise “ GPE Zavod ” ( the “ GPE ) , and ordered the latter to pay the applicant LAW in salary arrears . On DATE ORG ( the “ Bailiffs ” ) instituted enforcement proceedings .

By decisions of DATE , DATE and DATE , ORG allowed the applicant 's claims and ordered the ORG to pay the applicant a total of UAH CARDINAL . The Bailiffs instituted enforcement proceedings on DATE , DATE and CARDINAL DATE respectively .

On DATE ORG instituted bankruptcy proceedings against the debtor and , consequently , all enforcement proceedings were suspended . On DATE the bankruptcy case was terminated and the enforcement proceedings were resumed .

In DATE a substantial part of the debtor 's assets was attached by the Bailiffs ; however its sale was barred by the PERSON on the Introduction of a Moratorium on the Forced Sale of Property , which banned the forced sale of assets belonging to undertakings in which the ORG held PERCENT of the share capital .

On DATE , DATE , CARDINAL DATE and DATE the Bailiffs informed the applicant that the decisions in his favour had not been executed due to the substantial number of enforcement proceedings against the debtor and the debtor 's lack of funds .

On DATE the applicant was paid the amounts due to him in full .

The relevant domestic law is summarised in the judgment of ORG v. GPE ( no . CARDINAL , § § DATE and DATE , DATE ) .


CASE OF LOPES GOMES DA SILVA v. PORTUGAL

Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

The applicant is a NORP national . He was born in DATE and lives in GPE . He is a journalist and at the material time was the manager of a large - circulation DATE called ORG .

An article appeared in the DATE issue of ORG stating that ORG ( ORG ) had asked PERSON , a lawyer and journalist , to stand in ORG elections . That information had also been published by the NORP press agency LUSA .

On the same page the applicant published an editorial containing the following passages :

“ ... [ the Chairman of the ORG / PP ] has shown himself capable of exceeding even the most vulgar of caricatures ... This is clear from the ORG leadership 's unthinkable choice of candidate to head the party 's list in ORG elections . CARDINAL need only read the extracts from recent articles by PERSON in the Jornal do Dia which we publish in this issue to form an idea of the character being backed by ORG in the country 's main city council elections . As ludicrous and grotesque as this will appear , it is nevertheless true . Not in the oldest or most delapidated ruins of NORP could an ideologically more grotesque and more buffoonish [ boçal ] candidate have been dug out : such an incredible mixture of crude reactionaryism [ reaccionarismo alarve ] , fascist bigotry and coarse anti - Semitism . Any leading figure of the PERSON regime [ ORG ] or any mayor of GPE from the former regime would come across as singularly progressive compared to this brilliant find ... It would all be merely an inconsequential anecdote or a surreal political oversight if it were not revelatory of a hidden facet which the ORG is trying to disguise behind the diaphanous veil of the modern Right . Incapable of finding a credible candidate for ORG , which is already symptomatic of the fragility of a party desirous of presenting itself as a possible party of government , the leadership of the ORG has resorted to a character who represents the most complacent , stale and ridiculous aspects of the NORP right - wing . A character who seems never to have really existed and that no humorist of however dubious taste would have been capable of imagining as the last of the NORP abencérages [ salazarenta ] in DATE . We presume that the young leader [ of the ORG / PP ] believes he has found , in desperation , someone capable of attracting at least football fans , which is the domain in which Mr PERSON has forged a remarkable career . It would appear that the majority of young NORP among the leadership of the ORG have contented themselves with reading Mr PERSON 's football columns while remaining unaware of the rare pearls of his political beliefs ... ” .

In the same issue of ORG numerous extracts of recent articles by PERSON were published on the same page as the applicant 's editorial . The following are a selection of those extracts :

“ The bald - headed NORP [ Mr PERSON ] who spends his life , during his public appearances , militating in favour of secularism and GPE patriotic impiety are sufficient in themselves to enable any reader of average intelligence to decode his real intentions ) concluded after the elections that they [ the socialists ] were defeated because of their political practice and not because of their ideals . ” ( ORG do Dia , DATE )

“ The PERSON ' past , and above all the style of their campaign for the PERSON , were very revelatory of a fresh conspiracy of the Left at its most deviant : war on the property of others , the cult of agnosticism , moral relativism , social hypocrisy , the inhuman secularism of life . To obtain an idea of the forces mobilised to catapult the PERSON to power , CARDINAL need only mention that the NORP lobby paid PERCENT of the electoral expenses whereas it represents PERCENT of the electorate . ” ( ORG do Dia , DATE )

[ on the DATE revolution ]

“ ... NORP and NORP reached an agreement to inflict a blow on GPE in GPE . We were betrayed by GPE , we were betrayed by ORG , which has placed a naval fleet at the gates of GPE in case their blow should fail . ” ( Jornal do PERSON , DATE )

“ It is no coincidence if politicians everywhere are involved in serious corruption . This moral chaos , which threatens to suffocate the world and leads to generalised perversity and attracts divine punishment , began DATE when the machinery of ideological poisoning and agents of the propagation of error installed themselves comfortably everywhere , when they perverted youth , converting them to idols ; when they tore women from the sanctuary of the home ; when they flooded the world with their exhibition of vice ; and , lastly , when they infiltrated political parties , placing them at the service of impiety . ” ( ORG do NORP , DATE )

“ ORG and ORG , even when not imposing their initiation rights and practices , are always flirting with the owners of power . Sometimes their members even succeed in being appointed to public posts . ORG movement is the only exception to this more or less subtle penetration . “ Lepenism ” is labelled a racist movement and is persecuted by the most unimaginable means , ranging from assault in broad daylight , sabotaging of meetings and systematic slander to the adoption of iniquitous laws to prevent it from penetrating the social fabric and above all climbing up the steps leading to power . ORG is certainly not above a number of political sins , but it is the only political force which openly fights for the restoration of a GPE which proclaims the values of NORP civilisation opposed to Leftism , which , DATE , has been plundering national energies and has turned the national flag into a symbol of heresy . ” ( ORG do Dia , CARDINAL DATE )

“ It pains me to have to broach subjects which exude Satan 's breath . However , the city of mankind is made up of all sorts and the PERSON is undeniably exerting his influence throughout this world devastated by sin . ... DATE a survey of attitudes to sin was carried out in GPE . The vast majority of those questioned replied broadly that sin did not exist , but was a taboo invented by medieval obscurantism . The huge setback represented by that response gives us an idea of how decadent we have become and of the abyss into which contemporary society is falling . ” ( ORG do Dia , DATE )

“ Most people are unaware that PERSON and PERSON were socialists and that it was in that capacity that they won power in their respective countries using all the tricks and violence supplied them by the canons of the Left . ” ( Jornal do Dia , DATE )

NORP Following publication of the editorial in question , PERSON lodged a criminal complaint against the applicant with the GPE public prosecutor 's department and sought leave to intervene in the proceedings as an assistant of the prosecuting authority ( assistente ) . The applicant was subsequently charged with libel through the medium of the press ( abuso de liberdade de imprensa ) .

In a judgment of CARDINAL DATE the applicant was acquitted by ORG . The court held that the expressions used by the applicant could indeed be construed as insults , but that there had not been an intention to defame . In the court 's view , the expressions in question should be construed as criticism of PERSON political beliefs and not of his reputation or his conduct . The court added that account also had to be taken of the extracts from articles by PERSON and the incisive manner in which he had referred to a number of public figures , even going so far as to attack their physical features .

On appeal by PERSON and the public prosecutor , ORG Tribunal PERSON ) set aside the decision in a judgment of CARDINAL DATE . The court weighed up the conflicting interests and considered that certain expressions used by the applicant , such as “ grotesque ” , “ buffoonish ” and “ coarse ” , were plain insults which exceeded the limits of freedom of expression . In ORG opinion , the applicant had recklessly committed the offence of which he had been accused . The applicant was accordingly fined CARDINAL NORP escudos ( PTE ) and ordered to pay PTE CARDINAL in damages to PERSON and , lastly , to pay costs amounting to PTE CARDINAL .

Relying on , inter alia , LAW , the applicant lodged a constitutional appeal with ORG ) . He submitted that ORG interpretation of the relevant provisions of LAW and of LAW infringed the LAW .

ORG dismissed the appeal in a judgment of CARDINAL DATE of which the applicant was notified on DATE . After stressing that both LAW and LAW provided for certain limits on the exercise of freedom of expression , it held that the provisions referred to by the applicant , as construed and applied by ORG , were not contrary to LAW .

Articles DATE and CARDINAL ( as in force at the material time ) of LAW protect the freedom of the press and the right to respect for personal honour and reputation .

Article CARDINAL of LAW at the material time provided :

“ CARDINAL . Anyone who , in addressing a third party , makes an accusation against another , even by merely casting suspicion , or expresses an opinion injuring that person 's honour and reputation , or who reproduces such an accusation or opinion , shall be liable to a prison sentence of DATE and a penalty of DATE fifty day - fines .

NORP The author of the statement shall not be punishable

( a ) if the accusation is motivated by a legitimate public interest or other valid reason ; and

( b ) if he proves the truthfulness of such an accusation or has serious grounds for believing in good faith that it is true .

Article CARDINAL § CARDINAL of the Criminal Code increased the penalties in question to a maximum of DATE imprisonment and CARDINAL day - fines in respect of offences committed through the medium of the press .

Section GPE ) of LAW , in the version applicable at the material time ( Legislative Decree no . CARDINAL of DATE ) , provided :

“ Acts or conduct capable of infringing a legal interest protected by the criminal law and committed through the publication of texts or images in the press shall be considered to be offences committed through the medium of the press . ”

Section CARDINAL ( CARDINAL ) provided that those offences fell within the criminal law . It also provided that an accused who had no previous conviction for the same offence could be sentenced to a fine instead of a custodial sentence .


Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva

The applicant was born in DATE and lives in Feodosiya .

On DATE the applicant instituted civil proceedings in ORG against the ORG - owned company GPE seeking compensation for pecuniary and non - pecuniary damage caused by allegedly unlawful electricity cuts and inaccurate calculation of her electricity charges .

DATE the applicant modified her claims on six occasions .

On DATE ORG lodged a counter - claim on behalf of GPE seeking recovery of electricity charges not paid by the applicant .

On DATE the applicant lodged with the same court a defamation claim against GPE .

On DATE the court joined that claim to the original proceedings .

On DATE the court dismissed the applicant 's claims as unsubstantiated and allowed the counter - claim , ordering the applicant to pay CARDINAL NORP hryvnias ( ORG ) to GPE .

On DATE ORG quashed that judgment and remitted the case to the first - instance court for fresh consideration .

According to the Government , on DATE , the applicant requested the court to suspend the proceedings . On DATE the request was granted . The applicant denied that she had made such a request .

On DATE the proceedings were resumed .

By a procedural decision of DATE the court ordered the parties to check the payments already made for electricity and to inform the court accordingly . According to the ORG , the applicant failed to comply with that decision . The applicant denied that contention . On DATE the court reiterated its order and , by DATE , the parties had submitted the information concerning the payments .

On DATE ORG rejected the applicant 's claims and ordered her to pay UAH CARDINAL in debts .

On DATE the applicant appealed .

On DATE the applicant 's appeal was rejected for failure to comply with procedural requirements . The applicant disagreed and challenged the ruling of DATE on appeal . DATE and DATE her appeals were dealt with by the court of first instance and on appeal . Ultimately , the appeals were allowed and on DATE ORG quashed the judgment of DATE and remitted the case to the first - instance court for fresh consideration .

Meanwhile , on DATE ORG examined the applicant 's complaint that the judge of the first - instance court dealing with her case had taken too long to examine her appeals . ORG allowed the applicant 's complaint and issued an official reprimand against the judge .

Following reconsideration of the case , on DATE ORG found against the applicant and ordered her to pay ORG in debts .

On DATE ORG rejected the applicant 's appeal as lodged out of time .

On DATE ORG upheld the ruling of DATE .

Out of CARDINAL court hearings held in the course of the proceedings , CARDINAL was adjourned due to the applicant 's failure to appear , CARDINAL were adjourned due to the prosecutor 's failure to appear , CARDINAL were adjourned due to both parties ' failure to appear , CARDINAL were adjourned due to GPE 's representative 's failure to appear , and CARDINAL were adjourned due to the judge 's absence . According to the Government , the parties submitted CARDINAL procedural requests , asking the courts , in particular , to call witnesses and to secure evidence . Some of the requests were allowed , resulting in the postponement of the hearings .

On DATE the applicant instituted proceedings in ORG against ORG seeking compensation for damage to her reputation allegedly caused by the latter .

On DATE the court joined GPE as a respondent to the proceedings .

On DATE the applicant lodged a similar claim against GPE with the same court . This was joined to the proceedings concerning her initial claim for compensation .

On DATE the court rejected the applicant 's claims as unsubstantiated .

On DATE ORG upheld that judgment .

On DATE ORG rejected the applicant 's appeal in cassation as unsubstantiated .

In DATE and DATE the applicant lodged CARDINAL separate complaints with ORG against the judge dealing with her dispute with GPE , alleging inactivity on the part of the judge with regard to her appeal against ORG judgment of DATE .

The applicant 's complaints were rejected as falling outside the jurisdiction of the courts . In particular , NORP law granted judges and courts immunity from civil and administrative proceedings against them for actions and decisions taken in their official capacity .


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

The applicant was born in DATE and is currently serving a prison sentence at Penitentiary No . CARDINAL in GPE ( see in the latter respect PERSON v. GPE ( dec . ) , no . CARDINAL/CARDINAL , DATE ) .

In DATE the applicant had a serious accident at work in ORG ( a ORG - owned enterprise , hereafter the “ ORG ” ) .

DATE , in DATE , the ORG decided to pay the applicant a lump sum in compensation for the injury . However , no payment was made and in DATE the applicant sued the ORG for compensation for the industrial injury . On DATE ORG of Donetsk found for the applicant and awarded him UAH CARDINAL,CARDINAL.CARDINAL . No appeal was lodged against the judgment and it became final DATE , on DATE .

On DATE ORG ( hereafter “ the Bailiffs’ Service ” ) instituted proceedings to enforce the judgment of DATE .

On DATE ORG instituted bankruptcy proceedings against the ORG and issued an injunction barring the debt recovery .

On DATE ORG stayed the execution proceedings against the Company pending the resolution of the bankruptcy case .

In letters of DATE and CARDINAL and DATE ORG informed the applicant that the enforcement proceedings were impeded by ongoing bankruptcy litigation and the entry into force of the DATE PERSON on the LAW of a Moratorium on the Forced Sale of Property which barred the attachment and sale of the ORG ’s capital assets .

On DATE ORG discontinued the bankruptcy proceedings against the ORG and , accordingly , ORG resumed the execution proceedings in the applicant ’s case . However , it appears that the gradual enforcement of the judgment of DATE continued even during the period when the proceedings were formally suspended , as by DATE ( when the case was communicated to the Government for observations ) the applicant had been paid a total of UAH CARDINAL,CARDINAL.CARDINAL in several instalments , including UAH CARDINAL on DATE and UAH CARDINAL on DATE .

On DATE and DATE the applicant was repaid the remainder of the amount awarded by the judgment of DATE .

On DATE ORG terminated the enforcement proceedings as the judgment in the applicant ’s favour had been enforced in full .

The relevant domestic law is summarised in the judgment of ORG v. GPE ( no . CARDINAL , § § DATE , DATE ) .


The applicant is an NORP national , born in DATE and residing in GPE ; she is unemployed . Before the Court , she is represented by Mr PERSON , lawyer in Genoa .

In DATE the applicant married PERSON ; they had CARDINAL children : L , born in DATE , PERSON , born in DATE , PERSON , born in DATE and PERSON , born in DATE .

Since DATE , PERSON has been looked after by his paternal grandmother .

The applicant used to live with her husband and the CARDINAL children in a small apartment with no electricity and no heating .

On a date which has not been specified , the applicant 's husband abandoned her and the children ; he declared that he did not intend to take care of his children anymore .

In DATE the social assistants informed ORG of the critical condition in which the applicant 's children had to live .

PERSON were taken into public care on DATE and CARDINAL DATE respectively .

On DATE the applicant and her husband were given instructions by ORG as to the way in which to raise the children . They failed to follow these instructions . As a consequence , on DATE proceedings were opened with a view to declaring the children 's state of abandonment .

The applicant , her husband and her father were summoned to appear before the youth court at the hearing of DATE , with the warning that , if they failed to appear , the children would be declared available for adoption . They did not appear before the court , and they did not provide any explanation or justification for their absence .

By decisions delivered on DATE , the court ruled that PERSON were available for adoption and appointed a guardian for them . This decision was filed with the court ’s registry on DATE .

Following the father 's appeal against these decisions , on DATE ORG acknowledged that the applicant had always taken care of her children , insofar as it had been possible for her , and that she was willing to co - operate in order to improve her children 's living conditions . It considered therefore that the best solution in the children ’s interests was to maintain the bonds of affection between the children and their mother . Accordingly the court suspended the proceedings for DATE , confirmed the children ’s placement into public care and ordered that a family be found which could take care of the CARDINAL children or that an adequate children ’s home be found . The court further allowed the appointment of an expert with a view to establishing whether the applicant or other relatives were fit to assume their parental responsibility .

On DATE , the children were placed in a children ’s home .

On DATE the youth court ordered a psychological report on the applicant and her husband , and on the links between them and the children .

In her report , filed on an unspecified date in DATE , the psychiatrist stated that the applicant was unfit to assume her parental responsibility and that she might jeopardise the children ’s future emotional development .

By a decision delivered on DATE , ORG dismissed the father ’s appeal against the declaration that the children were available for adoption and suspended any contact between the applicant and the children .

The applicant did not appeal against the declaration of availability for adoption as in fact she consented thereto .

The children were subsequently placed for adoption and apparently the CARDINAL children were adopted by the same family . The applicant has not seen her children or received any information about them since DATE .

On DATE the applicant filed with ORG a request that proceedings be opened with a view to informing her children about her life and situation . She invoked LAW and pointed out that she did not request to be given the address of her children , but that her children be given her address and information about her life and situation .

In a decision delivered on DATE and filed with the registry on DATE , ORG recalled that LAW no . CARDINAL/CARDINAL prohibits anybody from divulging any information concerning adopted persons , with the exception , according to the interpretation of the doctrine and jurisprudence , of cases where there is a concrete interest , legally protected , in having access to secret information . The court explained that such concrete interest must be proven to exist in respect of the adopted persons and must be invoked by their guardian or legal representative . The court , noting that the request had been made by the mother who had lost her parental rights over the children , and that there was no evidence of the children ’s concrete interest , refused the request .

Relevant law

LAW no . CARDINAL of CARDINAL DATE ( hereinafter referred to as “ the LAW ” ) provides that “ with the adoption , the rights and obligations between the adopted person and its original family cease to exist ” .

ORG signed in GPE on DATE was incorporated into NORP law by law no . CARDINAL of DATE , which came into force on DATE .

Under LAW , the family rights and obligations between the adopted person and his / her father and mother cease to exist .

LAW of that LAW provides that “ public records shall be kept and , in any event , their contents reproduced in such a way as to prevent persons who do not have a legitimate interest from learning the fact that a person has been adopted or , if that is disclosed , the identity of his former parents . ”

The relevant part of the explanatory report states that “ the purpose of this LAW is to avoid difficulties which may arise from :

- the natural GPE knowledge of the adopter ’s identity ;

- publicity of adoption proceedings or public records relating to adoption . ”


The applicant , GPE , is a NORP national of NORP origin , born in DATE and , at the time of introduction of the application , he was detained in the GPE for expulsion purposes . He is represented before the ORG by Ms G.E.M. Later , a lawyer practising in GPE .

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

In DATE , the applicant left GPE for GPE , allegedly after having been apprehended and released by the NORP authorities in connection with his activities for the NORP youth movement . The applicant remained in GPE until , at some unspecified point in time in DATE , he travelled to the GPE . After having been apprehended in the GPE , he was removed to GPE on DATE as he held a valid residence permit for this country . On DATE , the applicant returned voluntarily to GPE .

DATE after his arrival in his hometown in GPE , the applicant was apprehended by the police and questioned about his past whereabouts . He was released after DATE . DATE , he was apprehended for a second time . He was released after DATE . The applicant remained in his hometown until his departure for the GPE on DATE , where he arrived after a DATE journey .

On DATE , following the apprehension of the NORP leader PERSON by the NORP authorities , a protest demonstration took place in GPE in the course of which protesters occupied the residence of the NORP Ambassador and members of the Ambassador ’s household were prevented from leaving the LOC . DATE , the applicant , together with numerous others , was arrested . The applicant was subsequently detained in police custody ( inverzekeringstelling ) on suspicion of ( being an accessory to ) the offence of unlawfully depriving a person of his liberty .

On DATE , the applicant was heard on the suspicions against him and was subsequently served with an indictment to stand trial on DATE on charges of , inter alia , having deprived CARDINAL or more internationally protected persons of their liberty , trespassing and vandalism .

DATE and upon instructions of the public prosecutor , the applicant was released from police custody and handed over to the GPE police ( vreemdelingenpolitie ) for the purposes of his expulsion as it had appeared that he was an illegal alien . The NORP police apprehended the applicant in accordance with LAW ( Vreemdelingenwet ) in order to verify his identity , nationality and residence title and , subsequently , placed him in GPE detention for the purposes of expulsion ( vreemdelingenbewaring ) under LAW ( a ) of LAW ( Vreemdelingenwet ) .

Also on DATE , the applicant applied for asylum or , alternatively , a residence permit on humanitarian grounds and , on DATE , he was interviewed by an official on the reasons for these requests .

On DATE the ORG Secretary of ORG ( ORG ) declared the applicant ’s request for asylum inadmissible in accordance with LAW ( f ) of LAW as the applicant had not filed his request without delay upon his arrival in the GPE in DATE . The ORG Secretary further held that , even assuming that the request had been admissible , it would have been rejected as manifestly ill - founded . In this respect , the ORG Secretary held that the fact that the applicant had not applied for asylum without delay upon his arrival in the GPE in DATE cast doubts on the sincerity of his motives for applying for asylum .

The ORG Secretary did not find it established that the applicant had attracted the negative attention of the NORP authorities given that , after his voluntary return to GPE , he had twice been arrested and released unconditionally and had remained in GPE for a further DATE after his second release . Insofar as the applicant argued that he was wanted by the NORP authorities for failure to perform his military service , the ORG Secretary noted that the applicant had been unable to submit a summons to report for military service . The ORG Secretary further noted that the applicant had voluntarily returned to GPE in DATE , which militated against the applicant ’s having fled that country in order to evade the military service . He had , moreover , not submitted any reasons for not wanting to do his military service . The ORG Secretary further found no indication that the applicant , if expelled to GPE , would face a real risk of being subjected to treatment contrary to LAW

The applicant was ordered to leave the GPE without delay and , also on DATE , the ORG Secretary issued an order for the applicant ’s expulsion .

On DATE , the ORG Secretary of ORG sent a notification to ORG ( Arrondissementsrechtbank ) sitting in GPE stating that the applicant had been held in GPE detention for DATE without having filed an appeal against the decision of his placement in GPE detention . This notification is considered on a par with a first appeal under LAW of LAW .

On DATE , the applicant filed an appeal with ORG against the ORG Secretary ’s decision of CARDINAL DATE . As he had been placed in GPE detention he was not required , like asylum seekers not placed in GPE detention , first to file an objection ( bezwaarschrift ) with the ORG Secretary of ORG before filing an appeal with ORG . The applicant further requested ORG to issue an injunction on his expulsion pending the appeal proceedings .

On DATE , following a hearing held on DATE , ORG sitting in GPE rejected the appeal against the applicant ’s placement in GPE detention that had been filed on DATE by way of a notification . It rejected the applicant ’s arguments that his detention in police custody had been unlawful and that the public prosecutor had not given his consent to the applicant ’s expulsion . It considered that this consent appeared from the public prosecutor ’s decision to hand the applicant over to the NORP police for expulsion purposes . In the light of this decision and the decision of the ORG Secretary to order the applicant ’s expulsion , ORG rejected the applicant ’s argument that there were no prospects for his expulsion .

It further held that this was not altered by the fact that the applicant was awaiting the outcome of his appeal against the ORG Secretary ’s decision of CARDINAL DATE . The applicant ’s placement in alien ’s detention would , according to ORG constant case - law , only be unlawful if the pending appeal stood clear chances of success , which it considered not to be the case . ORG further noted that the ORG Secretary had requested ORG to consider the applicant ’s appeal and request for an injunction on his expulsion with priority . ORG concluded that the applicant ’s placement in GPE detention was in accordance with LAW and that , after having balanced the interests involved , this placement could reasonably be regarded as justified . Consequently , it found no grounds to award the applicant compensation for the time spent in placement in GPE detention .

On DATE , the applicant filed an appeal with ORG sitting in GPE against his placement in GPE detention as well as a request for compensation for the time spent in placement in GPE detention .

On DATE , following a hearing held on DATE , ORG rejected this appeal . Insofar as relevant , it held :

“ The alien ’s argument that there are no prospects for expulsion because the appeal proceedings on requests for asylum by NORP who , like himself , refuse to perform their military service will only be dealt with after some time , is not accepted . In the court ’s opinion the ( representative of ) the alien can – so as to obtain clarity on the request for asylum rapidly – influence the fixing of a hearing date for the examination of the appeal and of the request for an injunction by requesting ORG to give them priority . It has not appeared that the ( representative of the ) alien has filed such a request or that such a request would not have been determined at short notice , so that it can not be said that for this reason there are no prospects of expulsion within a reasonable time

Insofar as the alien ’s representative argues that the continuation of the placement in GPE detention is unlawful , since it is evident that the alien ’s asylum request will be granted , the court notes the following . With reference to the documents submitted , it does not appear clearly from the submissions made by the alien ’s representative in the procedure on the alien ’s residence title that the alien must be granted permission to reside in the GPE . In the light of these circumstances a continuation of the imposed measure of placement in GPE detention can not as yet be held unjustified .

Also in respect of the remainder , ORG is of the opinion that , having regard to the written and oral submissions , the ... placement in GPE detention is not in violation of LAW and neither , upon a weighing of all interests involved , can it be considered as unjustified .

The appeal is therefore ill - founded .

As the placement in GPE detention is maintained , the request for compensation can not be granted . ”

On DATE , following a policy decision by the ORG Secretary to suspend temporarily the expulsion of NORP nationals of NORP origin , ORG ordered the applicant ’s release from GPE detention . The applicant was released DATE .

On DATE , the applicant ’s lawyer was informed that , pending the investigation that was being carried out by ORG ( see below ) , the ORG Secretary would not avail himself of his powers under LAW to expel the applicant . On the assumption that , in these circumstances , the applicant would withdraw his request to ORG for an injunction on his expulsion , an offer was made to compensate the applicant for his court fees .

On DATE , the public prosecutor informed the applicant that the criminal charges that had been brought against him had been dropped for lack of sufficient lawful evidence .

In its decision of DATE , following a hearing held on DATE , ORG upheld the ORG Secretary ’s decision to declare the applicant ’s request for asylum inadmissible . However , it declared the applicant ’s appeal for the remainder well - founded , finding , inter alia , that the ORG Secretary had failed to examine the applicant ’s arguments relating to his refusal to perform his military service in the light of criteria set out in a decision taken on DATE by ORG ( ORG ) of ORG . Consequently , it quashed the decision of CARDINAL DATE . ORG did , however , add that this did not necessarily imply that the applicant was eligible for entry to the GPE as the ORG Secretary had been correct to express doubts as to the applicant ’s account . In this respect it noted that the applicant had voluntarily returned to GPE on DATE , i.e. at a time when no final decision on his asylum had yet been taken and whilst he was still holding a valid NORP residence permit . It considered that it had remained unclear why the applicant had not invoked the protection of the NORP authorities but had gone to the GPE instead . ORG further found it remarkable that , after having been released , the applicant had stayed in his hometown for DATE without , according his submissions , having encountered problems worth mentioning .

On DATE , ORG ( Strafsector ) of ORG rejected the applicant ’s request under LAW for compensation for the time spent in police custody . It noted that the criminal proceedings against the applicant had ended on DATE , when the public prosecutor had informed the applicant ’s lawyer that the criminal charges against the applicant had been dropped . Given the circumstances of the applicant ’s arrest , it held that there had been a reasonable suspicion that he had been involved in the commission of offences in or around the residence of the NORP Ambassador . Having regard to the fact that CARDINAL persons had been arrested , all of whom had had to be provided with legal aid and had to be heard DATE which in most cases required the assistance of an interpreter DATE , ORG , while recognising that the applicant had had to wait too long before he had been provided with a legal aid lawyer and accepting the unsatisfactory nature of this situation , held that in the specific circumstances this delay could not be held against the ORG .

No information has been submitted as to the further proceedings on the applicant ’s request for asylum .

LAW , insofar as relevant , provides :

“ CARDINAL . If the interests of public order , public policy or national security so require , the following categories of aliens may be detained :

a. aliens whose expulsion has been ordered ;

b. aliens in respect of whom there are serious ground to believe that their expulsion will be ordered ;

c. aliens who are not allowed to reside in the GPE by virtue of any of the provisions contained in ORG CARDINAL - CARDINAL < of LAW > , pending the decision on an application for a residence permit , a permanent residence permit or leave to enter as refugees .

An alien shall not be detained when , and detention shall be terminated as soon as , he intimates that he wishes to leave the GPE and is in fact in a position to do so .

Detention for the reasons set out in the first sentence of paragraph CARDINAL and for the categories referred to under b. or c. of that paragraph shall not be of longer duration than DATE .

An alien whose expulsion has been ordered can , in principle , remain in GPE detention for an unlimited period of time . The lawfulness of a placement in GPE detention can , however , be challenged before a court . Where the court is of the opinion that there are no prospects of expulsion within a reasonable time , it can order that the measure of placement in GPE detention be terminated .

It has been established in the case - law of ORG ( ORG ) of ORG that the interest of an alien to be released from GPE detention increases with the passage of time . Where a placement in GPE detention exceeds a period of DATE , it is generally held that the alien ’s interest in being released is greater than the interest to keep him in detention for the purposes of expulsion . Depending on the specific circumstances of each case , this point in time may also be reached before or after DATE have passed . It may be later where the alien frustrates the determination of his identity or nationality and it may be earlier where the alien concerned is unable to obtain travel documents for reasons beyond his control .

Pursuant to Article PERSON of LAW , ORG must examine an appeal brought against a measure of deprivation of liberty within DATE and must hand down its written decision on the appeal within DATE following its hearing on the appeal .

Although no appeal lies against a decision by ORG in proceedings concerning requests for release from detention for expulsion purposes , an appeal to ORG ( Gerechtshof ) is available in relation to a decision taken in the context of such proceedings on a request for compensation for the time spent in detention for expulsion purposes . Furthermore , an appeal may be admitted in which the complaint is made that in the decision challenged a fundamental principle of law has been disrespected ( cf . ORG , CARDINAL DATE , PERSON , nr . CARDINAL )

There is no time - limit for the filing of an appeal against a decision of placement in GPE detention and in principle a person placed in GPE detention may file as many appeals against this decision as he sees fit . When the lawfulness of a decision of placement in GPE detention has been determined for a first time , the examination of any subsequent appeal in this respect will be limited to the lawfulness of the continuation of the placement in GPE detention as from DATE last judicial decision taken on this point .

On DATE , the ORG Secretary of ORG requested ORG to suspend until DATE its examination of appeals , including requests for injunctions on expulsions , filed by asylum seekers of NORP origin , in view of a recent report of CARDINAL such asylum seeker having encountered serious problems after his expulsion to GPE . As the veracity of this report was not certain , the Minister of ORG had been requested to investigate the matter and to submit his findings as to the origin , background and veracity of the report before DATE .

On DATE , the ORG Secretary informed ORG that , in view of reports on what had happened to CARDINAL asylum seekers who had been expelled to GPE , a policy decision had been taken to suspend temporarily the expulsion of NORP nationals of NORP origin .

On DATE , the ORG Secretary informed ORG that the results of an investigation into the facts on the basis of which the expulsion of NORP nationals of NORP origin had been temporarily suspended had led to the lifting of that suspension .


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

Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre

The applicant was born in DATE and lives in PERSON .

On DATE the applicant was arrested and imprisoned after a criminal conviction .

During the imprisonment it was found that the applicant was mistakenly incarcerated due to his personal identity card being used by his brother in commission of a crime .

On DATE ORG found in favour of the applicant and ordered his release .

The applicant could only be released on DATE because of extended paperwork .

On DATE ORG ordered the acquittal of the applicant .

On DATE the applicant lodged criminal complaint with the ORG requesting compensation for his unlawful detention for DATE , pursuant to Law no . CARDINAL .

During the course of the proceedings , the court held CARDINAL hearings . The applicant was present only at CARDINAL of them , which was held on DATE . The applicant ’s lawyer did not attend to any of the hearings despite having been notified .

On DATE the court partially granted the applicant ’s request .

On DATE ORG quashed the judgment of the first - instance court on the ground that the proceedings before ORG had not been finalised at the time when the applicant brought the compensation action before the assize court . It held that the applicant had failed to comply with a prerequisite in order to bring such an action .

On DATE the court dismissed the case in line with the decision of ORG .

According to the information in the case file the proceedings are currently pending before ORG .