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

The applicant is a former Minister of ORG . He was arrested in DATE on charges of embezzlement of public funds , abuse of power and assault on a journalist . On DATE ORG sentenced him to CARDINAL years’ imprisonment . The judgment was final and was not subject to appeal according to the criminal law in force at the material time .

Following the relevant changes in domestic law and in the light of GPE ’s undertaking to ORG to review the cases of political prisoners , on DATE the Prosecutor General lodged an application , requesting the court to allow the applicant ’s case to be considered by an appellate court . On DATE ORG granted the prosecutor ’s request and allowed an appeal to be lodged against the judgment of ORG of DATE . On DATE the criminal proceedings were re - opened . The new trial ended on DATE with the judgment of ORG , partially amending ORG judgment of DATE in favour of the applicant . The applicant ’s guilt was maintained but the term of imprisonment was reduced to DATE . The applicant did not appeal against this judgment to ORG .

In DATE , in the course of the new trial proceedings before ORG , the applicant brought an action against the prison authorities with a local court in GPE . He claimed that , according to LAW , an accused , whose case is under consideration on appeal , should not be detained for DATE . He asked the court to order the prison authorities to release him .

On DATE ORG dismissed the applicant ’s request . The court observed that the applicant had been sentenced by ORG judgment of DATE to CARDINAL years’ imprisonment . That judgment was final and was not subject to appeal at that time . Therefore , the applicant ’s current imprisonment should be considered as an execution of the judgment in force and he is kept in prison as a convict not an accused . According to the domestic criminal procedure , the reopening of the case did not change the status of the applicant .

The applicant appealed against this decision to ORG . He asked the court to quash the decision of the lower court and to recognise his detention as unlawful . On DATE ORG dismissed the applicant ’s appeal and upheld the decision of ORG . The applicant did not appeal against this decision to ORG .

The LAW of GPE of DATE

Article CARDINAL reads as follows :

“ Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction reviewed by a higher tribunal or to seek pardon or lightening of his penalty . ”

Code of Criminal Procedure of GPE DATE

Article CARDINAL § CARDINAL reads as follows :

" The period for detention of the accused person whose case is under consideration before the first and appeal instances courts shall not exceed :

DATE with respect to grave crimes ... "

The PERSON on the LAW of the new LAW of GPE of DATE

“ The judgments and other final court decisions which were taken under the old Criminal Procedure Code of GPE before DATE may be appealed before the appellate instance court or ORG . ”

Article CARDINAL reads as follows :

“ The new Criminal Procedure Code of GPE enters into force as from DATE . ”


Violation of Art.8 (failure to protect the applicant's reputation);Non-pecuniary damage - financial award;Costs and expenses (Convention and domestic proceedings) - partial award

The applicant is a freelance journalist who lives in GPE . From DATE to DATE he was the editor of the official magazine of the GPE NORP community .

In DATE the ORG of ORG ( ORG ) published an article in its yearbook , written by ORG , a professor of political sciences at ORG . The article was entitled “ Internationalism against nationalism : an eternal mortal enmity ? ” and alleged that the NORP had declared war on GPE in DATE . Moreover , it trivialised the crimes of the NORP regime .

NORP In DATE the applicant published a commentary on this article in the magazine of the GPE NORP community . It was entitled “ ORG DATE yearbook with ( neo-)Nazi tones ” . He criticised PERSON in harsh terms for using NORP terminology and disseminating ideas which were typical of the “ Third Reich ” . More specifically , he accused P. of reviving the old NORP lie of a worldwide NORP conspiracy and of confounding the roles of perpetrators and victims .

Subsequently , ORG brought defamation proceedings under LAW ) against the applicant . ORG ( PERSON für PERSON ) acquitted the applicant . Its judgment was upheld on CARDINAL DATE by ORG ( Oberlandesgericht ) , which found that the applicant 's criticism constituted a value judgment which had a sufficient factual basis in the numerous quotations from ORG 's article . Having regard to the publication of ORG 's article in the yearbook of a political party and given the highly sensitive topic , the applicant 's criticism , though harsh , was not excessive .

DATE , in DATE , ORG brought proceedings against P. on charges under LAW ( “ the LAW ” – GPE ) . Relying on numerous quotations from PERSON 's article in ORG DATE yearbook , the public prosecutor argued that the article constituted a national - socialist activity within the meaning of section CARDINAL g of LAW . Shortly before the date scheduled for the trial , P. committed suicide .

On DATE the DATE PERSON , a right - wing magazine whose chief editor PERSON was the former Chairperson of ORG , published a CARDINAL - and - a - half - page article with the headline “ The deadly terror of virtue ” ( “ ORG ” ) . It referred to the applicant 's criticism of ORG 's article in DATE and alleged that the applicant 's comment had unleashed a manhunt which had eventually resulted in the death of the victim . It referred to the applicant and a number of other persons , mostly politicians of ORG or ORG and also a number of journalists , a historian and a professor of political sciences , as members of a “ hunting society ” which used LAW as a tool to attack persons close to ORG and had ultimately chased CARDINAL victim to his death . The article was accompanied by pictures of the members of the alleged “ hunting society ” , including a picture of the applicant .

NORP The applicant brought defamation proceedings under LAW ( Mediengesetz ) against the publishing company owning PERSON .

On DATE ORG found that the article fulfilled the elements of defamation and ordered the defendant company to pay the applicant compensation under LAW . In addition the defendant was ordered to publish the judgment .

ORG noted that the impugned article accused the applicant of being morally responsible for PERSON 's death . Certain facts were undisputed , namely that the applicant had written a critical commentary on PERSON 's article , that PERSON had been charged under LAW and that he had died before the opening of the trial . However , the allegation that the applicant was part of a “ hunting society ” , that is , a group of persons persecuting P. and eventually causing his death , amounted to a statement of fact , the truth of which had not been established . In particular , the defendant company had not offered any proof for the causal link between the applicant 's article and P. 's death . Even if the statement were to be treated as a value judgment , it was excessive as it presented a conclusion which went far beyond what could reasonably be based on the underlying facts . Thus , it transgressed the limits of criticism permitted by LAW .

On DATE ORG set the judgment aside on an appeal by the defendant .

It found that the impugned article contained a value judgment which was , however , not excessive . The use of the term “ hunting society ” did not imply coordinated activities of a group of persons with the aim of destroying P. 's existence . Thus , the article could be understood as implying that the applicant 's and other persons ' activities had eventually caused PERSON 's death but it did not contain an accusation of their having foreseen or planned this outcome . The factual basis was sufficient to attribute some moral responsibility for P. 's death to the applicant and a number of other persons who had been active either by criticising PERSON in the media or by bringing actions against him in the courts . As regards the applicant , the article referred to his critical commentary on P. 's publication , thereby enabling the reader to assess whether or not he shared the opinion expressed in the impugned article . Moreover , the reader was aware that the article was written from a political and ideological point of view and involved a certain degree of exaggeration . In sum , it remained within the limits of permissible criticism set by LAW .

Meanwhile , in DATE PERSON addressed a CARDINAL - page letter to the subscribers to PERSON asking them for financial support . As a reason for this request readers were told that the DATE PERSON was under massive pressure from anti - fascists who , after having campaigned against PERSON , PERSON and other “ undesirables ” , had now chosen PERSON as their target . It alleged that the above - mentioned group was trying to damage PERSON by means of disinformation in the media and by instituting a multitude of criminal proceedings and civil actions .

The relevant passage of this letter reads as follows :

“ Then there is the case of PERSON v. PERSON . The long - standing editor of the NORP religious community 's magazine , PERSON , was identified following Professor PERSON 's [ family name in full ] death as a member of the hunting society that drove the conservative political scientist to his death . It was common knowledge that court proceedings were due to be opened against P. under LAW on account of his statements in ORG DATE yearbook . The NORP journalist PERSON had condemned the statements for their NORP tone and as a result had unleashed the judicial avalanche against P. When PERSON dared to show that this was the cause of the suicide , PERSON lodged a complaint . The extremely complex , time - consuming and costly proceedings , naturally accompanied by a corresponding media campaign in the trendy left - wing rags , are still in progress . ”

On DATE the applicant brought a further set of defamation proceedings under LAW against LAW and under LAW against the publishing company owning PERSON .

On DATE ORG decided to adjourn the proceedings pending ORG judgment in the first set of defamation proceedings . Once the latter had given its judgment of DATE ( see paragraphs CARDINAL and CARDINAL above ) , ORG resumed the proceedings .

On DATE ORG acquitted the defendants . It noted that the CARDINAL sets of defamation proceedings related to very similar factual and legal issues . Again , as in the article “ The deadly terror of virtue ” , the applicant was referred to as a member of a “ hunting society ” which had driven P. to commit suicide . Thus , it was alleged that there was a causal link between the applicant 's criticism of ORG 's article and the latter 's death . The considerations which had led ORG to acquit the defendants in the first set of proceedings also applied in the present case . ORG followed the appellate court 's view expressed in the judgment of DATE and found that the impugned letter contained a value judgment which relied on a sufficient factual basis . In this connection , it noted that addressees of the letter , even if they had not read the article “ The deadly terror of virtue ” , were given a summary of its contents which enabled them to form an opinion about the pertinence of the allegation raised . The value judgment was not excessive , although the underlying facts were commented on from a strongly ideological point of view . It followed that the publication at issue was protected by LAW .

On DATE ORG dismissed an appeal by the applicant , upholding ORG assessment that the CARDINAL sets of proceedings were so closely linked that the principles and considerations set out in its previous judgment of DATE applied .

The judgment was served on the applicant 's counsel on DATE .

Article CARDINAL of LAW ) , reads as follows :

“ CARDINAL . Anybody who , in such a way that it may be noticed by a third person , attributes to another a contemptible characteristic or sentiment or accuses him of behaviour contrary to honour or morality and such as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding DATE or a fine ...

Anyone who commits this offence in a printed document , by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public , shall be liable to imprisonment not exceeding one year or a fine ...

NORP The person making the statement shall not be punished if it is proved to be true . In the case of the offence defined in paragraph CARDINAL he shall also not be liable if circumstances are established which gave him sufficient reason to believe that the statement was true . ”

Section CARDINAL of LAW provides for the strict liability of the publisher in cases of defamation ; the victim can thus claim damages from him . In this context “ defamation ” has to be read as defined in LAW .


Violation of Art. 5-3;Non-pecuniary damage - financial award

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

On DATE the ORG ( Sąd Rejonowy ) remanded the applicant in custody for DATE on suspicion that he had committed CARDINAL counts of armed robbery . It considered that that measure was indispensable in order to secure the proper conduct of the proceedings , having regard to the serious nature of the offences in question and the severity of the anticipated penalty . Lastly , it considered that , given the way in which the offences in question had been committed , the applicant might attempt to induce witnesses to give false testimony .

During the investigation , the applicant 's detention was prolonged several times .

On DATE the ORG ( PERSON ) prolonged his detention until DATE , relying on the grounds originally given for his detention . It further referred to the need to take various investigative measures and obtain expert evidence . It also considered that the complexity of the case justified the prolongation of the applicant 's detention with a view to securing the proper conduct of the investigation . The applicant appealed against that decision , relying on his poor health .

On DATE the ORG ( Sąd Apelacyjny ) dismissed his appeal , having regard to the medical report of DATE which concluded that the applicant could remain in detention .

On DATE the ORG of Appeal prolonged his detention until DATE , finding that it was highly probable that he had committed the offences with which he had been charged . In that respect , it referred to evidence given by a certain GPE , a member of the same criminal group , who acted as a witness against the other suspects . ORG further relied on the need to obtain and secure evidence , in particular from experts in ballistics , biology and fingerprints . It stressed that it was also necessary to hold a reconstruction of the crime and to confront the suspects with each other . It also considered that the scale and the nature of the offences in question justified the applicant 's continued detention . The applicant appealed against that decision .

On DATE ORG ( Sąd Najwyższy ) dismissed his appeal . It had regard to the serious nature of the offences in question and the need to obtain further evidence . It further emphasised the complexity of the case and considered that the applicant 's continued detention was the only measure which could secure the proper conduct of the proceedings .

On DATE ORG extended the applicant 's detention until DATE , considering that the strong suspicion against him of having committed the serious offences with which he had been charged , the severity of the anticipated sentence and the risk of his tampering with evidence justified holding him in custody . It found that the present case was “ particularly complex ” within the meaning of Article CARDINAL § CARDINAL of the Code of Criminal Procedure due to , inter alia , the nature of the offences and the number of suspects involved .

On DATE the ORG of Appeal prolonged the detention of the applicant and his CARDINAL co - suspects pending investigation until DATE . On DATE it ordered that the applicant be held in custody until DATE . It repeated the grounds stated in its previous decisions . It added that the prolongation of the applicant 's detention was justified by the need to obtain DNA evidence .

On DATE the applicant was indicted before the ORG on CARDINAL charges , including several counts of armed robbery . The bill of indictment listed CARDINAL charges brought against CARDINAL accused , who were all detained on remand . The case - file comprised CARDINAL volumes . The prosecution asked the court to hear evidence from CARDINAL witnesses . The principal witness was a certain LOC , who was indicted together with all the defendants but gave evidence against them .

On DATE ORG prolonged the applicant 's detention until DATE , reiterating the grounds that had been stated in the previous decisions . It considered that there was a risk that he might abscond or interfere with witnesses , having regard to the serious nature of the offences in question and the connections between the suspects .

NORP Since on DATE the applicant 's detention reached the statutory time - limit of DATE laid down in LAW of LAW , further prolongation of the applicant 's detention was ordered by ORG . ORG relied on the particular complexity of the case as the ground for extending the applicant 's detention beyond the statutory time - limit . The relevant decisions were given on DATE ( extending the applicant 's detention until DATE ) , on DATE ( prolonging that period until DATE ) , on DATE ( ordering his continued detention until DATE ) , on DATE ( prolonging the detention until DATE ) , on DATE ( ordering his continued detention until DATE ) , on DATE ( extending the detention until DATE ) , on DATE ( prolonging it until DATE ) , on DATE ( ordering his continued detention until DATE ) , on DATE ( extending that period until DATE ) , on DATE ( ordering his continued detention until DATE ) and on DATE ( prolonging his detention until DATE ) . As at the latter date , CARDINAL of the CARDINAL accused were still detained on remand and the trial court had heard most of the prosecution witnesses .

In all those decisions ORG stated that the grounds originally given for the applicant 's detention were still valid . It especially relied on the need to secure the proper conduct of the proceedings against any attempt by the applicant to obstruct the process of obtaining evidence . It stressed the exceptionally complex nature of the case and the fact that CARDINAL witnesses were to be heard .

In the meantime , the trial began on DATE . However , as at DATE the reading out of the bill of indictment by the prosecution was still continuing .

In its decision of CARDINAL DATE , ORG found that holding the applicant and his CARDINAL co - defendants in custody was the only measure which would prevent them from obstructing the trial , having regard to the nature of the offences in question , the severity of the anticipated penalty and the fact that such attempts had been made in the course of the investigation . It also instructed the trial court to increase the number of hearings held DATE .

In its decision of DATE , ORG observed that up to DATE the main reason for the delays during the trial was the obstructiveness of the defendants and the abuse of the rights of the defence .

NORP In its decision of DATE dismissing the applicant 's appeal against the decision of DATE prolonging his detention , ORG held that LAW established a presumption to the effect that the likelihood of a severe penalty being imposed on the applicant might induce him to obstruct the proceedings . It added that the risk of absconding or tampering with witnesses which existed in the present case did not have to be supported by any concrete facts , but resulted from the above presumption .

On DATE the trial court made a severance order with a view to expediting the proceedings , and thereafter CARDINAL defendants ( ORG , GPE , GPE and GPE ) , who in the meantime had been released from detention , were to be tried separately from other defendants .

During the trial the applicant filed numerous but unsuccessful applications for release and appealed , likewise unsuccessfully , against the decisions prolonging his detention . He maintained that the length of his detention was excessive and unreasonable and that the charges against him lacked a sufficiently strong basis since they were founded on unreliable evidence from ORG

It appears that the applicant is still in detention pending trial .

The Code of Criminal Procedure of DATE , which entered into force on DATE , defines detention on remand as CARDINAL of the so - called “ preventive measures ” ( środki zapobiegawcze ) . The other measures are bail ( poręczenie majątkowe ) , police supervision ( dozór policji ) , guarantee by a responsible person ( poręczenie osoby godnej zaufania ) , guarantee by a social entity ( poręczenie społeczne ) , temporary ban on engaging in a given activity ( zawieszenie oskarżonego w określonej działalności ) and prohibition to leave the country ( zakaz opuszczania kraju ) .

Article CARDINAL § CARDINAL sets out the general grounds for imposition of the preventive measures . That provision reads :

“ CARDINAL . Preventive measures may be imposed in order to ensure the proper conduct of proceedings and , exceptionally , also in order to prevent an accused 's committing another , serious offence ; they may be imposed only if the evidence gathered shows a significant probability that an accused has committed an offence . ”

Article CARDINAL lists grounds for detention on remand . It provides , in so far as relevant :

“ CARDINAL . Detention on remand may be imposed if :

( CARDINAL ) there is a reasonable risk that an accused will abscond or go into hiding , in particular when his identity can not be established or when he has no permanent abode [ in GPE ] ;

( CARDINAL ) there is a reasonable risk that an accused will attempt to induce [ witnesses or co - defendants ] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means ;

NORP If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of DATE imprisonment , or if a court of first instance has sentenced him to DATE imprisonment , the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed . ”

The Code sets out the margin of discretion as to the continuation of a specific preventive measure . Article CARDINAL reads , in so far as relevant :

“ CARDINAL . Detention on remand shall not be imposed if another preventive measure is sufficient . ”

Article CARDINAL , in its relevant part , reads :

“ CARDINAL . If there are no special reasons to the contrary , detention on remand shall be lifted , in particular if depriving an accused of his liberty would :

( CARDINAL ) seriously jeopardise his life or health ; or

( CARDINAL ) entail excessively harsh consequences for the accused or his family . ”

The DATE Code not only sets out maximum statutory time - limits for detention on remand but also , in LAW , lays down that the relevant court – within those time - limits – must in each detention decision determine the exact time for which detention shall continue .

Article CARDINAL sets out time - limits for detention . In the version applicable up to DATE it provided :

“ CARDINAL . Imposing detention in the course of an investigation , the court shall determine its term for a period not exceeding DATE .

The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed DATE .

Only ORG may , on application made by the court before which the case is pending or , at the investigation stage , on application made by ORG , prolong detention on remand for a further fixed period exceeding the periods referred to in DATE , when it is necessary in connection with a stay of the proceedings , for the purpose of a prolonged psychiatric observation of the accused or a prolonged preparation of an expert report , when evidence needs to be obtained in a particularly complex case or from abroad or when the accused has deliberately prolonged the proceedings , as well as on account of other significant obstacles that could not be overcome . ”

On DATE paragraph CARDINAL was amended and since then the competence to prolong detention beyond the time - limits set out in paragraphs CARDINAL and CARDINAL has been vested with the court of appeal within whose jurisdiction the offence in question has been committed .


Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

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

The applicant was detained in FAC .

In DATE he intended to vote in the presidential election . However , he was informed that he could not vote because he was not on the list of eligible voters . The applicant did not inquire further .

In DATE the applicant unsuccessfully attempted to vote in the parliamentary elections . He was informed by a member of the electoral commission that he had been deprived of his civic rights pursuant to a court decision . The applicant wrote to ORG and ORG requesting an explanation for the refusal to allow him to vote . He received no reply .

In DATE the applicant again unsuccessfully attempted to vote in the referendum on GPE ’s accession to the ORG . The applicant complained to ORG . He also lodged an electoral complaint ( protest wyborczy ) with ORG , claiming that he had been unlawfully deprived of the right to vote in the referendum . On DATE ORG dismissed his complaint . He also filed a criminal complaint with ORG , but the criminal proceedings were discontinued on an unspecified date .

On an unspecified date in DATE the applicant brought an action in LOC against the president of that court . He sought compensation in the amount of PLN CARDINAL,CARDINAL for damage sustained in connection with the unjustified refusal to allow him to vote in the DATE presidential elections , the DATE parliamentary elections and the DATE referendum . The applicant submitted that on DATE the additional penalty of deprivation of his civic rights had come to an end . Nevertheless , as a result of an error committed by the ORG clerk his name had been put on the list of persons who had not been eligible to vote . The applicant claimed to have sustained damage because he could not exercise his constitutional rights and actively participate in elections .

As regards the factual background to the applicant ’s claim , the court established that on CARDINAL DATE ORG had sentenced him to a term of imprisonment and an additional penalty of CARDINAL years’ deprivation of his civic rights . The applicant finished serving the sentence of imprisonment on DATE . On DATE Elbląg Prison notified ORG that the applicant had been released . Subsequently , the period of deprivation of civic rights began to run . The relevant period came to an end on DATE . Despite this fact , and as a result of the error committed by the court clerk , the applicant ’s name was put on the list of disenfranchised persons in respect of the elections mentioned above . ORG adopted as its own the findings of the prosecution service , which found that the above error had resulted from negligence in the duty to duly verify the situation of each person who had been put on the list of disenfranchised persons .

On DATE ORG awarded the applicant LAW ( approximately LAW ) and dismissed the remainder of his claim . It found that the applicant had been unjustifiably deprived of the right to vote in respect of all CARDINAL elections .

ORG noted that the applicant had not claimed to have sustained any pecuniary damage in this respect . On the other hand , he was seeking some financial compensation in connection with the infringement of his personal rights .

The court found that the right to vote could be considered as one of the personal rights protected under LAW . It held that that personal right had been unlawfully violated in the applicant ’s case ( “ ... dobro osobiste zostało naruszone działaniem bezprawnym . ORG ta w niniejszej sprawie jest spełniona . ” ) . Having regard to the above , the court decided , contrary to the defendant ’s submission , that the applicant should be awarded non - pecuniary damages under LAW . However , it observed that the degree of intensity of the harm was very much a subjective question . When assessing the amount to be awarded for the infringement of his personal rights , it took into account the fact that the applicant was not active or interested in politics , and that accordingly his subjective feelings of harm could not have been particularly intense . The case would have been different had it involved a politician who had been deprived of the right to vote . The court further observed that the wrong had not been done intentionally and that the damage caused to the applicant had not been significant . It further noted that the consequences of the violation of the right to vote were limited to the emotional sphere . Having regard to all the relevant circumstances and , in particular , the nature of the right that had been violated and the fact that compensation for non - pecuniary damage should not lead to enrichment of the claimant , the court considered it reasonable to award the applicant LAW . It found the remainder of the applicant ’s claim for damages excessive .

The applicant lodged an appeal against the first - instance judgment and contested the insufficient amount of the award . He further claimed that ORG had considered his right to vote to be of lesser importance when compared with the similar right of politicians .

On DATE the ORG upheld ORG judgment . It endorsed for the most part the lower court ’s findings in respect of the amount of compensation awarded to the applicant and considered it proportionate to the damage sustained by the applicant . ORG noted that the amount awarded was higher than the minimum monthly salary ( PLN CARDINAL ) and the amount of unemployment benefit ( PLN MONEY ) . It found that when assessing the extent of harm ORG had correctly relied on the applicant ’s limited involvement in politics . Furthermore , the applicant had not established that his involvement in politics had been higher than average .

ORG disagreed with ORG only in CARDINAL respect . It held , referring to LAW , that the fact that the breach of the applicant ’s rights had been unintentional was not relevant for the assessment of the defendant ’s liability . However , that shortcoming did not alter ORG decision .

The applicant intended to lodge a cassation appeal with ORG . ORG appointed him a legal - aid lawyer to that end . However , on DATE his legal - aid lawyer informed the applicant in writing that he had found no grounds on which such an appeal could be based .

Article CARDINAL of the LAW provides :

“ CARDINAL . If , no later than on the date of the vote , he has attained DATE , a NORP citizen shall have the right to participate in a referendum and the right to vote for the President of GPE as well as representatives to the PERSON and ORG and organs of local government .

Persons who , by a final judgment of a court , have incurred legal incapacity or deprivation of civic or electoral rights , shall have no right to participate in a referendum or to vote . ”

Under LAW , deprivation of civic rights ( prawa publiczne ) is CARDINAL of the additional penalties that may be imposed by a court .

LAW CARDINAL of LAW reads in so far as relevant :

“ The deprivation of civic rights shall entail the loss of the right to vote and to stand for election ... ”

Article CARDINAL § CARDINAL of the Criminal Code provides :

“ The deprivation of civic rights ... shall take effect from the time when the judgment becomes final ; the period for which deprivation is imposed shall not run during the serving of a custodial sentence , even if the sentence has been imposed in respect of another offence . ”

Section CARDINAL of the Law of DATE on Elections to the PERSON and the ORG of GPE ( ORG wyborcza do PERSON i do PERSON ) ( “ the DATE LAW ” ) provides in so far as relevant :

“ § CARDINAL . NORP The list of voters in prisons and detention centres ... shall be drawn up on the basis of the registers of persons staying there on the date of elections .

§ CARDINAL . Persons who are deprived of civic rights by the final decision of a court shall not be included in the list referred to in § CARDINAL . ”

Section CARDINAL of the DATE LAW provides that a prisoner may file a complaint with the prison governor about being excluded from the list of voters . In the event that the complaint is unsuccessful , the prisoner may further lodge a complaint with a district court .

LAW contains a non - exhaustive list of the rights known as “ personal rights ” ( dobra osobiste ) . This provision states :

“ The personal rights of an individual , such as in particular health , liberty , reputation ( cześć ) , freedom of conscience , name or pseudonym , image , secrecy of correspondence , inviolability of the home , scientific or artistic work , [ as well as ] inventions and improvements shall be protected by the civil law regardless of the protection laid down in other legal provisions . ”

LAW provides for ways of redressing infringements of personal rights . Under that provision , a person faced with the danger of an infringement may demand that the prospective perpetrator abandon the wrongful activity , unless it is not unlawful . Where an infringement has taken place , the person affected may , inter alia , request that the wrongdoer make a relevant statement in an appropriate form , or demand satisfaction from him or her . If an infringement of a personal right causes financial loss , the person concerned may seek damages .

Under LAW , a person whose personal rights have been infringed may seek compensation . That provision , in its relevant part , reads :

“ The court may grant an adequate sum as pecuniary compensation for non - pecuniary damage ( krzywda ) suffered by anyone whose personal rights have been infringed . Alternatively , the person concerned , without prejudice to the right to seek any other relief that may be necessary to remove the consequences of the infringement sustained , may ask the court to award an adequate sum for the benefit of a specific social interest . ... ”


BERISHA & OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

The applicants are ORG ( husband and wife ) , PERSON , PERSON and PERSON ( husband , wife and their son ) . They are NORP nationals of Romany origin , born in DATE , DATE and DATE respectively . They are represented before the ORG by Mr PERSON and Mr PERSON , lawyers practising in GPE .

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

PERSON , his spouse PERSON and their CARDINAL minor children had to leave GPE because they were constantly threatened and on few occasions attacked by the members of ORG ( ORG ) .

The most tragic event occurred on DATE , when CARDINAL armed people wearing the ORG uniform threatened them with death and ordered them to leave their house . CARDINAL of these people took their baby who was DATE and said that he would throw it on the floor “ just like the NORP babies have been thrown ” . PERSON father and his brother were also beaten .

The following TIME , PERSON and his neighbours having organised night shifts to protect their families , PERSON was stabbed in the back while on guard . He was hit in the right shoulder and on his head and lost consciousness . Later a friend found him and he was transported by the ORG to hospital in PERSON . The persons responsible for the attack were never found .

Fearing constant persecutions by the ORG , PERSON and his family left GPE and entered the Former GPE on DATE .

The first CARDINAL applicants are a married couple and the third applicant is their son . They used to live in GPE , where they were constantly threatened by the ORG members .

In DATE , some persons wearing the ORG uniform went into the applicants ' neighbourhood , entered their house , pointed their guns at them and threatened to kill them if they did not leave their house TIME . They left their house immediately and escaped to GPE Polje where they were temporarily accommodated . They also met many PERSON who were allegedly beaten by the people wearing the KLA uniforms .

On DATE , the applicants entered the Former GPE .

On their arrival , ORG granted the applicants the status of ORG .

On DATE , the applicants were arrested , as they tried to cross the Deve Bair border from the Former GPE to GPE with forged passports . They were charged with with forgery of official documents ( LAW ) . At TIME , DATE , the applicants appeared before a duty judge of ORG . As the applicants stated that they did not have money to engage a lawyer , the judge appointed an ex officio lawyer . The Government stated that the applicants agreed to the hearing taking place at once as they did not wish to be detained any longer in custody .

The main hearing commenced at TIME , attended by the Deputy Public prosecutor , all the applicants , their counsel and CARDINAL witnesses . The judge asked each applicant in turn if they understood NORP . They declared that they did and did not request any interpreter from NORP into NORP ( GPE ) . They all stated that they accepted their counsel .

During the proceedings , the applicants admitted that they had knowingly made use of forged passports with a view to leaving the FYR of GPE . The applicants were found guilty of having forged official documents and sentenced to DATE term of imprisonment suspended for DATE . The court also ordered the expulsion of the applicants from the state territory as security measure . The judgment , drawn up on the spot , stated that the applicants , their ex officio lawyer and ORG all waived their respective right to appeal to ORG , whereby the judgment became final . The applicants were returned by the police to a refugee camp at GPE .

On DATE , the ORG local office requested ORG not to expel the applicants on the ground that they , being of NORP origin , risked to be ethnically persecuted in the country / place of their origin . Copies of this request were served on the first instance court , ORG and the ORG .

In the meanwhile the applicants appointed another lawyer . On DATE , they lodged an appeal on points of law with ORG on the grounds that the first instance court did not take into consideration the fact that they had been granted the status of ORG and that their lives would be at risk if they were deported to GPE . They also invoked the Convention on the Status of the Refugees and its LAW of DATE , both of which have been ratified by the Former GPE in DATE and LAW . The applicants further complained that there was no interpretation at the hearing into their own language . If they were to be considered as having waived their right to appeal , this was due to the fact that , as they did not know the official court language and some of them were illiterate , they did not understand that such waiver meant their expulsion from the Former GPE and their lawyer did not warn them about these consequences .

On DATE , the ex officio lawyer applied to ORG for a rehearing of the criminal case based on LAW , arguing that execution of the security measure of expulsion would lead to the applicants ' deaths . On DATE , ORG accepted the petition , annulling the previous judgment of CARDINAL August CARDINAL and re - opening fresh proceedings .

On DATE , ORG applied for voluntary repatriation to GPE . An emergency travel document was issued by ORG . On DATE the ORG informed ORG that they had returned to GPE and returned their ORG certificates .

Hearings took place in the presence of the applicants ' current legal representative on DATE , DATE , DATE , DATE and DATE .

On DATE , ORG found the applicants guilty and imposed a suspended sentence of DATE imprisonment and ordered the forfeiture of the fake passports . The previous security measure of expulsion was withdrawn . The applicants , PERSON , PERSON and PERSON were present during the hearings . ORG remained in GPE .

In the absence of appeal by the prosecutor or the applicants , the judgment became final .

Article CARDINAL reads as follows :

“ ( CARDINAL ) An accused may waive his right to lodge an appeal only when the first instance judgment is served on him . Except if he has been sentenced to a term of imprisonment , the accused may waive his right to lodge an appeal before being served with the judgment provided the prosecution and the person who sustained damage and had the right to appeal on all points [ set out in this code ] have waived their right to lodge an appeal . The accused may withdraw the appeal at any time until the appellate court has delivered its decision ...

( CARDINAL ) The accused and the person who sustained damage may waive their right to lodge an appeal at any time between the judgment being made public and the time - limit for entering an appeal .

( CARDINAL ) An accused who has waived his right to appeal may not retract such waiver and lodge an appeal . ”

Article CARDINAL provides as relevant :

“ ( CARDINAL ) The criminal procedure concluded with an effective verdict may be repeated on behalf of the convicted , if ...

( CARDINAL ) new facts are presented or new evidence submitted which by themselves or in conjunction with previous facts or evidence are such as to cause the person to be released or to be convicted on lesser grounds . ”

Article CARDINAL reads as follows :

“ ( CARDINAL ) An accused sentenced to a term of imprisonment may lodge an appeal on points of law on the grounds set out in the code .

( CARDINAL ) An appeal on points of law may be lodged within DATE from DATE the final decision was served on the accused .

( CARDINAL ) An accused who has not lodged an appeal may not lodge an appeal on points of law , unless having been acquitted , put on probation , reprimanded , or fined by the first - instance court , or unless he was sentenced to a term of imprisonment by the appellate court ... ”

An appeal on points of law does not suspend the enforcement of a final decision , unless ORG decides otherwise .

Section CARDINAL provides that it is for the Minister of the ORG to decide when the expulsion order is to be enforced . An appeal can be lodged against the Minister 's decision but it has no suspensive effect .

Section CARDINAL provides that an alien shall not be expelled from the state territory if thereby his life will be put in jeopardy , because of his racial , religious or national affiliation , political beliefs or if he might be exposed to torture or inhuman treatment .


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

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

On DATE the applicant brought an action for damages against Ms H. for payment of CZE CARDINAL for baby clothes and CARDINAL baby seats which the applicant had allegedly brought at her request from GPE in DATE .

On DATE the Hradec Králové ORG ( okresní soud ) requested ORG ( obecní úřad ) to submit an official statement on the applicant ’s reputation in the municipality , referring to section CARDINAL of the Code of Civil Procedure .

On DATE the mayor of the municipality submitted a statement which read as follows :

[ Translation ]

“ The reputation of PERSON , living in ORG , PERSON CARDINAL , is very bad in the municipality . PERSON systematically looks for and initiates conflicts with inhabitants . This is proved by a number of minor offences concerning the cohabitation with other inhabitants , which were dealt with by the municipal office . One can easily doubt most of the information given by PERSON . ”

[ Original ]

“ Pověst Ludmily Ermannové , bytem ORG , PERSON CARDINAL , je v obci velmi špatná . ORG systematicky vyhledává a je iniciátorem konfliktů s obyvateli obce . CARDINAL dokladem je množství přestupků na úseku občanského soužití , které byly na místním úřadě řešeny . Také o pravdivosti většiny informací paní QUANTITY úspěchem pochybovat . ”

On DATE , in her final submissions to ORG , the applicant denied the truthfulness of the information provided by the mayor in his statement .

By judgment of DATE ORG , having heard the parties , PERSON parents , the applicant ’s daughter and son and QUANTITY other witnesses , PERSON and PERSON , and having assessed certain documentary evidence , dismissed the applicant ’s action . It found that the applicant had not shown that she had a contractual relationship with PERSON which would have obliged her to meet a specific financial obligation . The court found therefore that there was no need to re - hear PERSON and PERSON or to watch a video recording of PERSON children sitting in the baby seats and wearing the clothes in question .

ORG made no reference in its judgment to the statement issued by ORG .

On DATE the ORG ( krajský soud ) , upon the applicant ’s appeal , quashed the judgment of ORG and remitted the case with a binding opinion that the applicant , in order to be successful in the proceedings , had to prove that there was an agreement between her and PERSON , in the sense that the applicant would sell children ’s clothes and baby seats for an agreed price , and that Ms H. had asked her father to order the goods . To that effect , ORG instructed ORG to re - hear the applicant , PERSON father and another witness .

By judgment of DATE ORG , having taken additional evidence in accordance with ORG instruction , dismissed the applicant ’s action for damages . It held , inter alia , that :

On DATE ORG upheld this judgment endorsing the reasoning of the lower court in the main .

On DATE the applicant sued the municipality before ORG ( krajský soud ) , seeking the protection of her personal rights within the meaning of section CARDINAL et seq . of LAW . She claimed that the information contained in the mayor ’s statement did not correspond to the reality , that it was of a defamatory nature and that it interfered with her dignity and civil reputation . She further claimed that the municipality should be ordered to present a written apology and an undertaking to refrain , in future , from committing similar interferences .

ORG requested ORG to submit the court file concerning the applicant ’s action for damages , from which it appeared that ORG had submitted its statement upon ORG request , with a view to obtaining an official opinion on the reputation and credibility of both parties to the proceedings .

It further requested ORG ( městský úřad ) to submit the case files relating to minor offences involving the applicant ’s family which had been dealt with by ORG . It established from the documents before it that the applicant and her children had had a number of disputes with their neighbours , a local family and CARDINAL other persons , and that the administrative proceedings had been , for the most part , discontinued .

ORG also had before it a case file with a claim brought by PERSON father against the applicant , in which he alleged that the latter had verbally abused him . These proceedings had also been discontinued .

On DATE ORG , after having heard the parties and examined the aforesaid documentary evidence , dismissed the applicant ’s action . In its view , the municipality had not unjustifiably interfered with the applicant ’s right to the protection of her personal rights , as it had fulfilled the obligation imposed on it by ORG pursuant to LAW . The court further noted that the municipality had not misused its power when issuing the statement , the content of which was in substance truthful , and which the applicant could challenge in the course of the proceedings for damages .

On DATE the applicant appealed , arguing that ORG had not assessed the evidence correctly and that , consequently , had wrongly dealt with the factual and legal issues of the case .

On DATE ORG ( vrchní soud ) , admitting in evidence a decision of ORG DATE and the text of note no . CARDINAL published in a local newsletter in DATE , found the applicant ’s appeal unsubstantiated . It held , inter alia , that it had not been proved that the municipality did not believe that the information about the applicant ’s reputation contained in its statement was incorrect or that it had intended to damage the applicant .

On DATE ORG ( PERSON ) rejected the applicant ’s appeal on points of law ( dovolání ) in which the applicant challenged , inter alia , the lower ORG finding that the content of the mayor ’s statement had not been published , and claimed that the local newsletter had reported that ORG had requested ORG to submit an appraisal of her , and that local deputies had suggested that the appraisal be based on DATE to which new relevant facts should be added .

On DATE the applicant filed a constitutional appeal ( ústavní stížnost ) alleging , inter alia , a violation of LAW základních práv a svobod ) and Articles CARDINAL and CARDINAL of the Convention , in that the statement of the municipality containing its opinion about her reputation and credibility had been used in the court proceedings held in public and published in the local newsletter .

On DATE ORG ( PERSON ) rejected the applicant ’s constitutional appeal as manifestly ill - founded . Although it expressed certain doubts as to the suitability of requesting third persons to issue statements on the reputation and credibility of an individual pursuant to LAW , ORG considered , in particular , that the municipality had acted on ORG request under this provision and , having regard to the actual situation in the municipality and relations between inhabitants , it had done it the way which was hardly violating the principle of social proportionality . It was indisputable that DATE the applicant and members of her family had been involved in CARDINAL proceedings relating to minor offences . The fact that these proceedings had eventually been discontinued was , in the court ’s view , irrelevant . It further noted that the statement issued by the mayor , and subsequently approved by the municipal board of representatives ( zastupitelstvo obce ) , reflected the prevailing opinion of the local inhabitants .

The Code of Civil Procedure

Under section CARDINAL of the Code of Civil Procedure , when answering a court ’s questions , everyone is obliged to communicate to the court facts which are important for the proceedings and the judicial decision . A natural person may refuse to communicate facts to the court on the same grounds as a witness under section CARDINAL(CARDINAL ) .

The Civil Code

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

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

Pursuant to section CARDINAL(CARDINAL ) , a natural person has the right to request that an unjustified interference with his or her personality should be stopped , that the consequences of such interference be eliminated , and that appropriate satisfaction be granted .

The existence of an unjustified interference , objectively capable of affecting a person ’s rights under LAW et seq . of LAW , is a prerequisite for a successful claim for the protection of the plaintiff ’s personality .

The Charter of Fundamental Rights and Freedoms

Everyone is entitled to

- the protection of his or her human dignity , personal integrity , good reputation , and his or her name ;

- protection against an unauthorized interference with his or her personal and family life ; and

- protection against the unauthorized gathering , publication or other misuse of his or her personal data .


Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property

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

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

He sued ORG and the local department of ORG for unpaid social benefits and obtained CARDINAL judgments in his favour .

On DATE the ORG of LOC ( “ the Town Court ” ) awarded the applicant MONEY ( RUB ) in arrears relating to a disability allowance and RUB MONEY in arrears relating to a food allowance . The judgment entered into force on CARDINAL November CARDINAL . On DATE the applicant received RUB CARDINAL . It appears that the remaining part of the judgment debt has not been paid to the applicant .

On DATE ORG held that as of DATE the applicant had been entitled to a DATE disability allowance in the amount of RUB MONEY and recovered in his favour arrears in the amount of RUB CARDINAL,CARDINAL.CARDINAL . On DATE ORG ( “ the Regional Court ” ) upheld the judgment . It was fully enforced on DATE .

On DATE ORG awarded the applicant RUB MONEY in penalties for the lengthy non - enforcement of the judgment of DATE . The judgment entered into force on DATE . It has not been enforced to date .

On DATE ORG awarded the applicant RUB CARDINAL in arrears relating to a disability allowance . On DATE ORG upheld the judgment . It was enforced in full on DATE .

On DATE ORG awarded the applicant RUB CARDINAL in penalties for the lengthy non - enforcement of the judgment of DATE . The judgment acquired legal force on DATE . It has not been enforced to date .

On DATE ORG awarded the applicant RUB CARDINAL,CARDINAL.CARDINAL in arrears relating to a disability allowance . On DATE ORG upheld the judgment . It was enforced in full on DATE .

On DATE ORG awarded the applicant RUB CARDINAL in arrears relating to a disability allowance . The court furthermore held that as of DATE the applicant had been entitled to a DATE disability allowance in the amount of RUB MONEY , to be indexlinked in accordance with legislation . On CARDINAL DATE the judgment entered into force . It was enforced in full on DATE .

On DATE ORG awarded the applicant RUB CARDINAL,CARDINAL.CARDINAL in penalties for the delayed enforcement of the judgments of DATE and DATE . The judgment acquired legal force on DATE . It has not been enforced to date .

On DATE ORG awarded the applicant RUB CARDINAL in arrears relating to a food allowance and to an DATE disability allowance . The judgment acquired legal force on DATE . It has not been enforced to date .

On DATE ORG awarded the applicant RUB CARDINAL in arrears relating to a food allowance and to a disability allowance . The court furthermore held that as of DATE the applicant had been entitled to a DATE food allowance in the amount of RUB MONEY and as of DATE he was entitled to an DATE disability allowance in the amount of RUB CARDINAL , both to be index - linked in accordance with legislation . The judgment acquired legal force on DATE . It has not been enforced to date .


Preliminary objections dismissed (non-exhaustion of domestic remedies, victim);Violation of Art. 6-1;Violation of P1-1;Just satisfaction partially reserved;Pecuniary damage - financial award;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in PERSON .

NORP In DATE the NORP authorities nationalised the applicant 's parents ' house . In DATE her parents were deported to LOC .

On DATE the ORG enacted Law No . CARDINAL “ on the rehabilitation of the victims of the political repression committed by the totalitarian communist occupying regime ” . The PERSON enabled the victims of the NORP repression to claim their confiscated or nationalised property .

In DATE the applicant lodged an action with ORG ( FAC ) by which she sought the restitution of her parents ' house . At the material time the disputed house consisted of CARDINAL apartments : CARDINAL . CARDINAL , DATE , DATE , DATE , DATE and DATE . Since apartments nos . CARDINAL , DATE , DATE , DATE and DATE had been purchased by their former tenants , the applicant sought to declare null and void the contracts by which they had been purchased from the ORG . She also sought the eviction of all the occupants of the house .

On DATE ORG found in favour of the applicant and ordered the restitution of the house . It declared null and void the contracts by which apartments nos . CARDINAL , DATE , DATE , DATE and DATE had been sold to their tenants . The court further ordered ORG to evict all the occupants , including those of apartment no . CARDINAL , and indicated that ORG was to provide all the tenants with alternative accommodation .

ORG and the occupants lodged an appeal with ORG ( PERSON ) against the judgment of ORG . On DATE ORG allowed the appeal and quashed the judgment of ORG .

The applicant lodged an appeal in cassation against the judgment of ORG . On DATE ORG ( PERSON ) rejected the appeal in cassation and upheld the judgment of ORG .

Following a request by the applicant , ORG applied for annulment of the judgments of ORG and ORG with ORG ( PERSON ) .

On DATE ORG quashed the judgments of ORG and of ORG , and upheld the judgment of ORG of DATE on the ground that both ORG and ORG had failed to observe the provisions of PERSON no . CARDINAL-XII of DATE ( see paragraph CARDINAL below ) .

On an unspecified date in DATE , after having obtained the enforcement warrant , the applicant asked ORG to execute the judgment of DATE . In a letter of DATE , ORG informed the applicant that due to a lack of funds for the construction of apartments for the evicted tenants , it could not execute the judgment .

In DATE the applicant lodged a request with ORG ( PERSON Cadastral PERSON ) to issue her a certificate of ownership for the disputed house . In a letter of DATE , ORG informed the applicant that it would issue the ownership title only on the basis of an “ act of delivery and receipt of the house ” ( act de predare - primire ) issued by ORG .

NORP In DATE the applicant lodged an action with ORG against ORG seeking damages for the delay in enforcing the judgment of DATE . On CARDINAL DATE ORG rejected the action as unfounded . The applicant did not lodge an appeal against that judgment and it became final .

In DATE the applicant lodged an action with ORG seeking a partial change in the manner in which the enforcement of the judgment of DATE was to be carried out . In particular , she claimed money from ORG in lieu of restitution of apartments nos . CARDINAL , DATE , DATE , DATE and DATE . On DATE ORG ordered that a valuation of the apartments be carried out by the experts of ORG . Following a request from the applicant , on DATE ORG ordered that the valuation be carried out by independent real estate experts .

On DATE ORG decided partially to change the manner of enforcement of the judgment of DATE and ordered ORG to pay the applicant CARDINAL PERSON ( ORG ) , the market value of apartments nos . CARDINAL , DATE , DATE , DATE and CARDINAL .

ORG lodged an appeal with ORG against the above judgment . On DATE the ORG rejected the appeal and upheld the judgment of ORG of DATE .

In DATE the applicant asked ORG to execute the judgment of DATE in so far as it concerned the eviction of the occupants of apartment no . CARDINAL . In a letter of DATE , ORG informed the applicant that due to a lack of funds for the construction of apartment buildings and available alternative accommodation for the evicted tenants , it could not enforce the judgment of DATE .

On DATE ORG dismissed ORG request seeking to stay the enforcement of the judgment of ORG of DATE . On DATE ORG , in its final judgment , rejected the Deputy Mayor 's appeal against the above judgment .

Following a request by ORG , ORG applied to ORG for annulment of the judgments of ORG of DATE and ORG of DATE .

On DATE ORG dismissed the Procurator General 's request for annulment .

On an unspecified date the applicant lodged a fresh request with ORG for the enforcement of the judgments of DATE and DATE . In a letter of DATE , ORG informed the applicant that due to a lack of funds and alternative accommodation for the occupants of apartment no . CARDINAL , it could not enforce the judgment of DATE . As regards the enforcement of the judgment of CARDINAL October CARDINAL , ORG replied that the money would be paid after other court orders had been paid .

On DATE ORG paid the applicant MDL CARDINAL ( the equivalent of LAW at the time ) in accordance with the judgment of DATE . The judgment of DATE in respect of the eviction of the tenants from apartment no . CARDINAL remained un - enforced .

The relevant provisions of Law no . CARDINAL of DATE , as amended on DATE , read as follows :

“ LAW . Restitution of property to persons who were subjects of repression

( CARDINAL ) Any citizen of GPE , who has been the subject of political repression and subsequently rehabilitated , shall have returned to him , at his request or at the request of his heirs , any property which was confiscated , nationalised or taken away from him in some other way . ( ... )

( CARDINAL ) Any act of sale - purchase or other form of transfer of houses , buildings or other constructions and goods confiscated , nationalised or taken away from a person who was the victim of repression , concluded after his rehabilitation , can be declared null through the courts following a request lodged by the victim of repression or his heirs . ”

In DATE a new paragraph was added to the above Article by virtue of Law No . CARDINAL of DATE , which reads as follows :

“ ( CARDINAL ) Any person to be evicted from a restituted house shall be provided upon his eviction with accommodation on a priority basis by the local public administration authorities , in accordance with the legislation . ”

Article CARDINAL of the Code of Civil Procedure , in force between CARDINAL DATE and DATE , reads as follows :

“ The creditor or the debtor against whom enforcement proceedings are pending may lodge an appeal against the acts carried out or the refusal to carry out such acts by a bailiff within the enforcement proceedings . ( ... ) ”

Article CARDINAL of LAW , in force between DATE and DATE , reads as follows :

“ Damage caused to a natural or legal person by the illegal actions of the criminal investigation organs , prosecution or the courts , shall be entirely repaired by the ORG , in the manner prescribed by law , regardless of the fault of any public servant from the criminal investigation organs , prosecution or the courts . ”

On DATE a new Civil Code entered into force . LAW reads as follows :

“ ( CARDINAL ) Damage caused by an unlawful administrative decision or as a result of a failure to act upon a request within a statutory time limit by a public authority or by a public official shall be compensated by the public authority ( ... ) .

( CARDINAL ) Individuals shall be entitled to claim general damages caused as a result of the acts foreseen in paragraph CARDINAL of the present Article . ( ... ) ”


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

DATE the applicant lived in GPE ( “ the GPE ” ) , where he carried out academic research for a dissertation . During his stay in the GPE , he also worked as a freelance journalist for NORP DATE and DATE papers . Like most aliens from capitalist countries living in the GPE , the applicant was kept under surveillance by the GPE intelligence authorities .

After his return to the GPE in DATE , the applicant suspected that he had attracted the attention of the then ORG ( Binnenlandse Veiligheidsdienst – “ the ORG ” ) as he had the impression that his telephone conversations were being intercepted . After obtaining a magna cum laude doctorate degree in DATE , the applicant was unable to find suitable employment in the GPE .

According to the applicant , this situation was linked to the often critical positions he had adopted in his academic and journalistic work , which , he claimed , had considerably irritated his fellow historians and politicians in the GPE . He submitted that GPE academics had repeatedly insinuated that he was a “ fellow traveller ” of communism . The applicant suspected that his publications and stays in the GPE and the mistrust displayed by his peers were having a negative effect on his career prospects in the GPE . He therefore decided to move abroad , and worked as a researcher and journalist in GPE , GPE and GPE in that order . The applicant returned to GPE in DATE .

On DATE the applicant requested the Minister of the Interior and ORG ( Minister PERSON en GPE – “ the Minister ” ) , to inform him as to what data were contained in possible files held on him by the ORG .

In his decision of DATE , with further additions in a subsequent decision of CARDINAL DATE , the Minister stated – referring to LAW b ) of ORG ( PERSON van Bestuur – “ the WOB ” ) and the relevant case - law under this provision of ORG ( Afdeling Bestuursrechtspraak ) of ORG ( PERSON ) , and LAW ( Wet op de Inlichtingen- en Veiligheidsdiensten ) DATE that no information would be provided on whether or not the ORG held current data about the applicant , since such a move could give an insight into ORG sources , working methods and current level of knowledge . The Minister had , therefore , treated the applicant ’s request as a request for access to outdated information possibly held on him by the ORG . Apart from outdated material from a “ sister organisation abroad ” , no outdated information about the applicant had been found . After the “ sister organisation ” had granted permission for disclosure , the applicant was granted access to the outdated information in so far as the contents would not lead to disclosure of ORG sources or working methods , or of personal data relating to third parties .

The outdated information disclosed to the applicant consisted of ( parts of ) CARDINAL documents , including ( parts of ) CARDINAL letters in NORP concerning the applicant and a copy of a letter the applicant had written on DATE to ORG at the West Berlin Regional Court . In the letter , the applicant criticised in virulent terms recent searches carried out by the NORP investigating authorities of the homes of persons referred to by the applicant as “ enemies of the LAW and other enemies ” ( PERSON sonstigen GPE ) . The applicant ended the letter with the phrase “ Death to the ‘ NORP rule - of - law State’ ” ( PERSON an den “ deutschen PERSON ” ) .

Dissatisfied with the limited information disclosed , the applicant filed an objection ( bezwaar ) , which was dismissed by the Minister on DATE . The applicant lodged an appeal against that decision with ORG ( arrondissementsrechtbank ) , arguing , inter alia , that , as the ORG information about him had apparently been gathered during an investigation conducted in DATE in a Cold War context , the information could no longer be considered “ current ” but should instead be classified as “ outdated ” .

The applicant ’s appeal was dismissed on all points but CARDINAL by ORG in a judgment of DATE . With the applicant ’s permission , as required by LAW § CARDINAL of LAW ( PERSON Bestuursrecht – “ the ORG ” ) , ORG had been given access to undisclosed ORG information , without that information being disclosed to the applicant . ORG held that CARDINAL particular document that had not been disclosed DATE it being unclear whether or not it did in fact concern the applicant although it did have a link with him – should not have been withheld from the applicant under LAW of LAW , as it had not been established that the document contained personal data relating to a third party . ORG quashed the Minister ’s decision in respect of the document , finding that no adequate reasons had been given . It did , however , add that – except on that CARDINAL point – it saw no reason to find the Minister ’s decision incorrect .

On DATE the applicant lodged an appeal with ORG of ORG .

On DATE the Minister took a further decision granting the applicant access to the document referred to in ORG ruling of CARDINAL DATE and confirming the remainder of his initial decision . The applicant lodged an appeal against the new decision of CARDINAL DATE .

On DATE ORG – which , with the applicant ’s permission , had also been given access to undisclosed ORG information without that information being disclosed to the applicant – dismissed the applicant ’s appeal against ORG judgment of CARDINAL DATE , upheld that judgment and dismissed the applicant ’s appeal against the Minister ’s decision of CARDINAL DATE . That decision , in its relevant parts , reads :

“ DATE . Under LAW of the PERSON , anyone can address a request to a public body ... for information set out in documents concerning a public administrative matter . Pursuant to [ LAW of the PERSON ] a request for information will be granted , subject to the provisions of ORG CARDINAL and CARDINAL [ of the PERSON ] . Pursuant to LAW ( b ) of the PERSON , no information shall be provided which could undermine the security of the ORG .

In the [ impugned ] decision the Minister informed the appellant that , after a thorough search of the archives , some outdated information had been found which was disclosed DATE in paraphrased form – to the applicant , and that no other outdated information on him had been found . In so far as the appellant ’s request concerned current information , the Minister gave a reasoned explanation for not disclosing information that could give an insight into the current level of ORG knowledge , leaving open whether or not current information about the appellant was being held .

ORG has concluded that , ... [ apart from CARDINAL document ] ... , it saw no reason to find the decision [ of DATE ] incorrect .

The appellant disagrees with this conclusion of ORG . According to the appellant , the ORG holds much more outdated information about him than it pretends . In this connection the appellant refers to the remark in the letter of CARDINAL March CARDINAL – one of the classified documents disclosed to the appellant – that an investigation of the applicant was still running . As the Minister qualified the letter of CARDINAL DATE as “ outdated ” , the investigation mentioned in it should also be regarded as outdated , in his view , with the result that the documents relating to the investigation should be disclosed to him . The appellant fails to see why [ access to ] this information , which was gathered in the context of the Cold War , should be refused on the ground that it could give an insight into current sources and working methods of the ORG . The appellant can not agree with ORG reasoning on this point .

This argument fails . Having followed the procedure set out in LAW ORG , ORG is , like ORG , of the opinion that , apart from the [ one document ] disclosed to the appellant in the meantime , there is no reason to find that the [ impugned ] decision is incorrect . There is no evidence that outdated information concerning an investigation of the appellant has remained undisclosed . The question whether the ORG , now ORG [ Algemene Inlichtingen- en Veiligheidsdienst – “ the ORG ” ] , holds information on the appellant which , in view of the tasks performed by the service , remains of a current nature , does not have to be answered . In this connection , ORG has correctly referred to the settled case - law of ORG , as it emerges from , inter alia , the rulings of DATE concerning no . HCARDINAL.CARDINAL.CARDINAL , ( ORG ( LOC ) ORG , CARDINAL ) and DATE concerning no . HCARDINAL.CARDINAL.CARDINAL , ( Administrative Case - law Reports ( ORG ) JB CARDINAL/CARDINAL ) , which held that the Minister could refrain from disclosing information that could give an insight into the current level of knowledge held by the ORG , now the ORG , on the basis that disclosure of such information could undermine the functioning of the service and hence the security of the ORG .

It follows from the above that the appeal is unfounded . The impugned decision must be upheld . The appeal directed against the decision of CARDINAL DATE is equally unfounded . ”

No further appeal lay against this ruling .

Until DATE the GPE intelligence and security services were governed by LAW of DATE regulating the duties , organisation , working methods and cooperation of the intelligence and security services ( PERSON DATE , GPE . CARDINAL , houdende regeling van de taak , ORG , de werkwijze en de samenwerking van de inlichtingen- en veiligheidsdiensten ) .

In its report of DATE under former LAW in the case of ORG and Others v. the GPE ( nos . CARDINAL/CARDINAL , DATE , CARDINAL , CARDINAL , GPE , GPE , DATE , CARDINAL/CARDINAL , PERSON and GPE ) ORG found that the provisions of LAW of DATE were incompatible with the requirements of LAW , in that they lacked precision and adequate safeguards .

LAW of DATE was subsequently replaced by the DATE Intelligence and Security Services Act ( FAC inlichtingen- en veiligheidsdiensten – “ the DATE LAW ) , which entered into force on DATE . It provided for CARDINAL branches of the intelligence and security services , namely ORG ( “ the ORG ” ) and ORG ( ORG DATE MID ” ) .

Under LAW ( a ) of LAW , the ORG was entrusted , inter alia , with the task of collecting information about organisations or persons who , by virtue of the aims they pursued or their activities , gave rise to serious suspicions that they constituted a danger to the continued existence of the democratic legal order or to the security or other vital interests of the ORG . It was also given responsibility for carrying out security screening of public officials ( LAW ( b ) of LAW ) and promoting measures aimed at securing information which needed to be kept secret in the interests of the ORG and information concerning those parts of the public service and industry which , in the view of the minister responsible , were of vital importance to society ( LAW ( c ) of LAW ) .

LAW provided :

“ The coordinator and the heads of the [ intelligence or security ] services are to ensure :

( a ) the secrecy of information to be treated as classified and of the sources of that information .

( b ) the safety of persons with whose cooperation the information is being gathered . ”

LAW read , in its relevant part :

“ CARDINAL . Personal data shall be gathered , recorded and provided to third parties by ORG ] [ intelligence or security ] service only in so far as this is strictly necessary for the performance of its tasks as defined in this Act .

The Minister concerned shall , in agreement with the Minister of ORG , determine rules concerning the management of the collections of personal data that are being held by the [ security ] service concerned .

The rules referred to in the previous paragraph shall at least contain regulations concerning :

( a ) the purpose of the collections ;

( b ) the secrecy of the data recorded therein ;

( c ) the monitoring of the accuracy of those data ;

( d ) the length of time for which data may be stored ;

( e ) other grounds for the removal of data from the collections ;

( f ) the destruction of removed data .

The Minister of the ORG , in agreement with the Minister of ORG , issued ORG ( PERSON ORG ) , which contained further rules within the meaning of LAW . This Regulation entered into force on DATE . According to LAW , persons about whom data had been recorded did not have a right of access to their personal data , nor did they have the right to learn whether or not personal data had in fact been recorded about them .

In CARDINAL rulings given on DATE ( CARDINAL of which was published – see ORG , CARDINAL ) , ORG found that the provisions of the DATE Act fell short of the requirements of ORG CARDINAL and CARDINAL of the Convention . It found that the provisions of LAW did not comply with the requirement of foreseeability under the Convention with regard to the categories of persons about whom information could be collected , the circumstances in which information could be collected and the means that could be used for obtaining information . It further considered that a person who had been refused access to information should be given reasons for such refusal instead of a general statement referring to national security . It also found that the CARDINAL existing control mechanisms could not be regarded as effective in that ORG did not have the power to give any binding decisions and ORG of ORG ( PERSON voor de inlichtingen- en veiligheidsdiensten ORG ) did not have a statutory basis .

Consequently , the Minister of the ORG could no longer determine requests for access to information under ORG , but had to apply the criteria of ORG ( “ the WOB ” ) in dealing with such requests . This meant that each request for access to information had to be examined on an individual basis and that reasons had be given in the event of a refusal .

LAW of the PERSON reads :

“ CARDINAL . Anyone can submit a request for information contained in documents about a public administration matter to a public administration body or to an institution , service or company working under the responsibility of a public administration body .

A request for information shall be granted subject to the provisions of ORG CARDINAL and CARDINAL [ of the PERSON ] . ”

Article CARDINAL of the PERSON provides :

“ CARDINAL . The public administration body shall provide the information in respect of the documents that contain the requested information by

( a ) providing a copy thereof or providing the contents word for word in another form ,

( b ) allowing access to the contents ,

( c ) providing an excerpt or a summary of the contents , or

( d ) providing information therefrom .

In the choice between the various forms of information referred to in the first paragraph , the public administration body shall take into account the petitioner ’s preference and need to ensure smooth operation of its activities . ”

LAW ( b ) of the PERSON states :

“ No information shall be made available under LAW in so far as this : ...

( b ) might undermine the security of the ORG ; ”

Proceedings under the PERSON are governed by the provisions of LAW ( “ the ORG ” ) . Article CARDINAL:CARDINAL of the ORG provides :

“ CARDINAL . Parties who are obliged to submit information or documents may , when there are substantial reasons for so doing , refuse to provide information or submit documents , or inform the court that it alone may take cognisance of the information or documents .

Substantive reasons shall in any event not apply to a public administration body in so far as the obligation exists , pursuant to ORG , to grant requests for information contained in documents .

The court shall decide whether the refusal or limitation on taking cognisance referred to in the first paragraph is justified .

Should the court decide that such refusal is justified , the obligation shall not apply .

Where the court decides that the restriction on taking cognisance is justified , it may , with the permission of the other party , give a ruling on the basis of , among other factors , the information or documents concerned . If permission [ by the other party ] is withheld , the case shall be referred to another bench . ”

In the light of the rulings given on DATE by ORG , ORG decided to undertake a comprehensive review of the statutory rules governing the GPE intelligence and security services . This resulted in the enactment of the Intelligence and Security Services Act DATE which entered into force on DATE , replacing LAW . LAW provides for CARDINAL intelligence and security agencies , ORG ( Algemene Inlichtingen- en Veiligheidsdienst – “ the ORG ” ) and ORG ( ORG Inlichtingen- en ORG – “ the NORP ” ) . The ORG ’s tasks are set out in LAW , and those of the ORG in LAW . LAW also contains detailed provisions on the categories of persons about whom information may be collected , the circumstances in which information may be collected , the means that may be used for obtaining information and the manner in which information may be recorded .

The DATE Act further provides for an independent ORG ( GPE PERSON ) , entrusted with the task of monitoring the lawfulness of the activities of the intelligence and security agencies . Pursuant to LAW , the Ministers concerned , the heads of the agencies , the official entrusted with the task of coordinating the policies and activities of the ORG and the ORG , and all other officials involved in activities under LAW , are obliged to provide ORG with any information and cooperation which ORG considers necessary to the performance of its tasks . LAW also provides for the possibility for individuals to request access to information held on them or their deceased spouse , partner , child or parent . LAW provides that ORG of GPE has jurisdiction to hear appeals against decisions refusing access to such information .


Violation of Art. 5-3;No violation of Art. 5-4;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

ORG Mr. PERSON is an NORP citizen , born in DATE and resident at ORG ) in GPE . At the time of the events complained of , he was a contractor by profession .

ORG On DATE , ORG ( tingsrätten ) of GPE issued a warrant for his arrest ( häktningsbeslut ) on the ground that there was probable cause to suspect him of gross smuggling and a serious offence against the legislation on narcotics , and also to believe that he would abscond .

Mr. PERSON was not present at the hearing but was represented by counsel assigned by the court .

ORG After being arrested in the GPE on DATE , he was extradited to GPE on DATE and immediately placed in custody in the main prison ( allmänna häktet ) in GPE . ORG was notified DATE .

As from DATE , the police inspector in charge endeavoured to interrogate Mr. PERSON , but the latter declined to make any statement until he had had the opportunity to consult a lawyer . Although informed that Mr. PERSON had been appointed as official defence counsel , the applicant refused to accept any other lawyer than Mr. PERSON ORG therefore appointed Mr. PERSON who , on DATE , visited the applicant in his cell .

ORG On DATE , ORG held a hearing at the close of which it ordered Mr. PERSON ’s continued detention and directed that criminal proceedings against him should be instituted no later than CARDINAL DATE . The public prosecutor instituted such proceedings on DATE .

ORG On DATE , when the main hearing ( huvudförhandling ) was about to begin , the applicant requested that CARDINAL persons be heard as witnesses and expressed his wish to adduce certain written evidence which was not immediately available . ORG remanded Mr. PERSON in custody and deferred the hearing until DATE .

ORG On DATE , in view of the applicant ’s poor physical condition , ORG once more adjourned the hearing ; it also directed that the applicant should be kept in detention .

ORG The trial finally took place on CARDINAL DATE . Mr. PERSON was convicted of a serious offence against the legislation on narcotics and sentenced by ORG to DATE imprisonment ; ORG also ordered that he should be deported from GPE on expiry of his sentence .

Conviction and sentence were upheld on CARDINAL DATE by ORG ( PERSON hovrätt ) .

On DATE , ORG ( högsta domstolen ) refused the applicant ’s request for leave to appeal .

ORG On DATE , Mr. PERSON was released after serving CARDINAL of his sentence , account having been taken of the time spent in detention both in the GPE and in GPE prior to conviction ( LAW , section CARDINAL , of LAW ) .

ORG Under LAW , LAW ( rättegångsbalken ) an appeal against an arrest warrant is not made subject to any time - limit .

In virtue of the last paragraph of LAW , section CARDINAL , the court must be notified immediately when such warrants are executed . Once it is in receipt of such information , the court has to lay down the period of time within which criminal proceedings ( åtal ) against the person detained must be instituted . If this period is greater than DATE , the court must normally hold a public hearing at least once a fortnight in order to decide whether or not detention is to be continued .

ORG On DATE , ORG set up a commission to consider revising parts of LAW , including the rules governing pre - trial detention . In particular , the commission is to inquire into the possibilities of making the prerequisites for placing a suspect in detention on remand ( häktning ) more stringent and into possible ways of shortening the duration of detention on remand and provisional detention ( anhållande ) .


Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych

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

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

On DATE the applicant was arrested and charged with fraud . DATE , his detention on remand was ordered .

On DATE the applicant was released . On CARDINAL DATE , together with CARDINAL other persons , the applicant was indicted before ORG ( krajský soud ) .

In a judgment of DATE ORG acquitted the applicant . The judgment became final on DATE .

The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the ORG ’s decision in the case of PERSON v. GPE , no . MONEY ( dec . ) , § § CARDINAL - CARDINAL , DATE ) .


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

Prior to the dissolution of the former ORG ( “ the SFRY ” ) the applicant deposited foreign currency in his bank account at the then office of a NORP bank in GPE ( GPE banka PERSON filijala GPE ) . In GPE , as well as in other successor GPE of the former SFRY , such savings are commonly referred to as “ old ” foreign - currency savings ( for the relevant background information see GPE v. GPE DATE . ) , no . CARDINAL , ORG CARDINAL- ... ) .

Following several unsuccessful attempts to withdraw his funds , the applicant initiated court proceedings against the Ljubljanska banka GPE ( at the relevant time , the legal successor of the GPE banka PERSON filijala GPE ) .

On DATE ORG Instance ordered the GPE banka GPE to pay to the applicant , within DATE , the full sum in his account ( MONEY ) , which amount included accrued interest . Default interest and legal costs were not awarded . The judgment entered into force on DATE .

After the Ljubljanska banka GPE had failed to execute the judgment voluntarily , on DATE the competent court issued an execution writ . It entered into force on DATE .

Meanwhile , the applicant filed an application with ORG ( the human - rights body set up by Annex DATE LAW ) .

On DATE ORG found a violation of LAW No . CARDINAL to that Convention arising from a failure to enforce the judgment of CARDINAL DATE . ORG held ORG responsible and ordered it to ensure full enforcement by DATE . The applicant was also awarded CARDINAL NORP markas ( BAM ) for non - pecuniary damage and BAM CARDINAL for legal costs .

On DATE ORG , in a further decision , decided that ORG should pay the judgment debt instead of the GPE banka GPE . The applicant was also awarded an additional amount of DATE .

The judgment debt ( MONEY ) and damages and legal costs awarded by ORG ( in total MONEY ) have subsequently been paid to the applicant . The applicant has thus received MONEY in all . He has not indicated the date of the payment .

For the relevant domestic law and practice see the ORG decision cited above .


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

At the material time the applicant , his wife and their CARDINAL sons lived in a private house at FAC , ORG .

In DATE ORG launched a military operation in GPE , aimed at disarming illegal armed formations .

According to the applicant , on DATE , during CARDINAL of the federal attacks on ORG , his then DATE elder son was seriously injured with the result that he was paralysed .

In DATE a new military operation was commenced on the territory of GPE .

According to the applicant , from DATE until DATE he and his family hid in the basement of their house fearing massive air strikes and artillery shelling of ORG .

On DATE they were admitted to hospital and diagnosed with post - contusional syndrome and neurasthenia . The applicant submitted a medical certificate confirming the above diagnosis .

On DATE the applicant and his family members were discharged from hospital , which was being evacuated since the warfare intensified .

On the same date the applicant and his relatives returned home .

According to the applicant , at some point in DATE they were intimidated and robbed by federal soldiers .

At DATE the federal military authorities warned the residents of ORG that they should leave the city within TIME .

On DATE the applicant and his family left for ORG . According to the applicant , federal military kept refugees from PERSON at a check - point at the Ingush border for DATE in the open and without giving them any food .

At DATE the applicant and members of his family reached GPE and stayed with their relatives .

At some point the applicant found out that his house and other property in GPE had been destroyed during the hostilities .

On DATE local authorities drew up an evaluation report ( дефектный акт ) confirming that the applicant ’s possessions were completely devastated during the hostilities in DATE .

On DATE the applicant filed a court claim against ORG in ORG of GPE ( “ the ORG ” ) . He complained about the destruction of his possessions , enclosing the evaluation report of DATE and a list of the destroyed items of his property , and sought compensation for pecuniary and non - pecuniary damage .

On DATE the ORG delivered its judgment , in which it acknowledged the fact that the applicant ’s private house and other belongings had been destroyed as a result of the hostilities in DATE . The court held , however , that under LAW of LAW of GPE the ORG was only liable for damages for its agents’ actions which were unlawful . It noted that the military operation in GPE had been launched by virtue of presidential decree no . CARDINAL of DATE , and governmental decree no . CARDINAL of DATE which had been found constitutional by ORG on DATE , except for CARDINAL provisions of the governmental decree . In this latter respect the court noted that the said CARDINAL provisions had never been applied to the applicant , and therefore no unlawful actions on the part of the ORG bodies had ever taken place to warrant compensation for damage inflicted on the applicant ’s property .

The court further held that under LAW of LAW of GPE damage inflicted by a source of increased danger was to be compensated for by a person or entity using such source , unless it was proven that the damage had been caused on account of force majeure or the fault of the affected person . However , in the court ’s view , the applicant had not submitted any evidence to confirm that his property had been destroyed by a source of increased danger used by the ORG , or that he had borne any mental suffering in connection with the destruction of his housing and other possessions . Accordingly , the court concluded that there were no grounds for granting the applicant ’s claims .

On DATE ORG dismissed the applicant ’s appeal thus upholding the first instance judgment .


Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

On DATE the Minister of ORG , PERSON Antoni GPE , submitted to ORG and made public a “ list of secret collaborators with the security services DATE ” . The list , unofficially called “ the GPE list ” , contained names of public officials who appeared in the archives of ORG and included the President and many Members of ORG . The publication of the list sparked uproar in the PERSON , a ORG of the NORP ORG , which led to the fall of the government of CARDINAL PERSON TIME .

The applicant , who had been a Member of ORG , appeared on the list .

On DATE the parliament passed the PERSON on disclosing work for or service in the ORG ’s security services or collaboration with them DATE by persons exercising public functions ( ustawa o ujawnieniu pracy lub służby w organach bezpieczeństwa państwa lub współpracy z nimi w latach DATE osób pełniących funkcje publiczne ; “ the DATE LAW ” ) . It entered into force on DATE . Persons falling under the provisions of the DATE LAW , i.e. candidates or holders of public office such as ministers and members of parliament , were required to declare whether or not they had worked for or collaborated with the security services during the communist regime .

On DATE the applicant applied to the court to institute the socalled “ autolustration ” proceedings under section CARDINALa § CARDINAL of LAW . He submitted his lustration declaration , in which he stated that he had not been an intentional and secret collaborator with the secret services .

The applicant was the first of many persons from the GPE list who applied for autolustration claiming that they had not been secret collaborators with the communistera secret services . In some cases the lustration courts agreed and cleared the name of the person concerned .

On DATE ORG ( Sąd Apelacyjny ) decided to institute lustration proceedings in the applicant ’s case .

On DATE ORG gave a judgment in which it found that his lustration declaration had been truthful and that the applicant had not been an intentional and secret collaborator with the secret services . The panel of the court was composed of CARDINAL judges .

The Commissioner of ORG ( PERSON ) appealed against the judgment .

On DATE ORG , acting as the secondinstance lustration court allowed the appeal and remitted the case . The court was constituted of a panel of CARDINAL judges which included judge PERSON

On DATE ORG acting as the firstinstance lustration court , found that the applicant had been an intentional and secret collaborator with the security services DATE .

The applicant appealed against the judgment .

On DATE ORG dismissed the appeal and upheld the judgment . The court was constituted of a panel of CARDINAL judges which again included Judge PERSON

The applicant lodged a cassation appeal complaining inter alia about the lack of impartiality of Judge PERSON The applicant submitted that this judge had participated in the preparation of his lustration proceedings and was a member of a lustration court DATE . The latter panel was later dissolved ; nevertheless , these factors cast doubt on the judge ’s impartiality particularly as he was a member of the panels giving judgment at the secondinstance .

The applicant ’s cassation appeal was dismissed on DATE by ORG ( Sąd Najwyższy ) . ORG examined inter alia the applicant ’s complaint that Judge PERSON had participated in his trial at the first and , on CARDINAL occasions , the second instance . It dismissed the argument that such participation had given rise to doubts regarding his impartiality , finding that the judge in question had not been a member of the panel that had given a decision at first instance . As regards the applicant ’s complaint that Judge PERSON had been a member of the panel of the second - instance court twice , the court noted that , according to the domestic law , such judge was not ex lege excluded from dealing with the case . It was however open to the party having doubts as to the lack of impartiality of the judge to challenge him or her during the proceedings ; the applicant had failed to do that . Since the applicant accepted the composition of the second - instance court which gave the judgment on DATE , he can not effectively raise doubts as to the lack of impartiality of CARDINAL of the judges at the cassation appeal stage .

The applicant was barred from being a Member of ORG for a period of DATE in application of the CARDINAL LAW .

The judgment was notified to the applicant ’s representative in DATE .

The relevant law and practice concerning lustration proceedings in GPE are set out in the ORG ’s judgment in the case of ORG v. GPE , no . CARDINAL/CARDINAL , § CARDINAL , ECHR CARDINALV.