Violation of Art. 10;Remainder inadmissible;Pecuniary damage and non-pecuniary damage - award

David Scicluna;David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in GPE .

The applicant is a journalist . On DATE ORG , a national LANGUAGE language newspaper ( “ The ORG ” ) published the applicant ’s letter to the editor entitled “ A Yacht Marina for Xemxija ? ”

The letter , in so far as relevant , read as follows :

“ Dr PERSON , Minister of Transport , has been quoted as saying that a yacht marina is being projected for GPE , the inner part of GPE bay .

The residents of the seaside village , permanent and occasional , and the fishermen , have not been consulted over what will be an impractical and highly unpopular attempt to bring about further havoc in the area .

After the war , during the administration of PERSON , permission was given for buildings to be erected on the northern part of the bay because PERSON wanted to build there , and now this has erupted into a conglomeration of high and low - rise constructions of grotesque proportions .

Then came the oil tanks and it was quite a relief later to see those go . There was some idea to develop ORG and one hopes this has evaporated . Now comes this new idea of a marina at GPE .

When the breakwater at LOC was extended , the currents in the bay were diverted so that now silt has settled along the stretch by FAC . Similarly , any breakwater in the bay will further alter the currents . The residents will not welcome the intrusion of yachtsmen and are wondering whether the back up facilities will go .

A proper study of the storms in the bay in DATE will certainly show though how impractical it is to build a large marina at GPE . Besides , one can imagine yachtsman with pegs to their noses from the stench from the drainage outflow which is such a feature of FAC where the authorities have continually botched the system .

Why do n’t they try GPE , which is a more sheltered and more practical marina – if in fact there is need for another marina ? ”

On an unspecified date , Mr GPE , the son and heir of the deceased Sir PERSON referred to in the letter ( who was Prime Minister of GPE and ORG in the post - war DATE and who died in DATE ) , sued the applicant for civil damages , claiming that the letter was defamatory . He argued that the words “ PERSON wanted to build there ” attributed false and despicable intentions to his father .

The applicant pleaded that the action should be dismissed on the ground that a deceased person can not sue for libel . By a preliminary judgment of DATE ORG dismissed this preliminary plea . This preliminary decision was upheld by ORG on DATE .

The applicant contended , on the merits , that his letter had not stated that Sir PERSON had wanted to build for himself in the specified area . His statement had referred to Sir PERSON ’s decision , acting in his role as Prime Minister of the country , to build in the area . Moreover , the letter was not injurious and there had been no mischievous intent , “ animus injuriandi ” , on the part of the applicant , who was also a family friend of the GPE .

By a judgment of DATE ORG found the letter to be defamatory vis - à - vis Sir PERSON and ordered the applicant to pay GPE euros ( ORG ) . It reiterated that a person may have a legal interest even if he or she was not the person to have been defamed , and it threw out the applicant ’s explanation of the impugned phrase for the following reasons : from the evidence submitted it transpired that the area close to ORG was indeed a development zone ; however , no date could be established as to when the land had been earmarked for such purpose . It further appeared that a company had submitted an application to acquire ( tehid ) land in GPE to erect a bulk storage installation for petroleum products . It followed logically , according to the reasoning of ORG , that the applicant had meant that the issuing of building permits during Sir PERSON ’s administration had been dependent on his will to build there ( on the northern side of the bay of GPE ) , personally . This was the meaning which would have been understood by any ordinary right - thinking person . However , the applicant had not been able to prove that any such permits had been issued , or that Sir PERSON had wanted to build there . Thus , since the allegations were untrue , and the applicant had not proved any basis for such an allegation , mischievous intent was presumed .

The judgment was upheld by ORG on DATE . It reiterated that the statement “ during the administration of PERSON , permission was given for buildings to be erected on the northern part of the bay because PERSON wanted to build there ” was defamatory as it implied that PERSON had taken advantage of his position as head of the civil administration to build in an area for which planning permission had not previously been granted . This was what a reasonable person would have understood . However , PERSON had proved that his father never owned property in the said area . ORG further noted that the applicant had failed to publish any correction or apology after becoming aware that Mr Boffa had suffered from the defamation caused by the publication .

The applicant instituted constitutional redress proceedings claiming that there had been a violation of his rights under Articles DATE and CARDINAL of the Convention .

On DATE ORG , in its constitutional jurisdiction , dismissed his claims on the merits . It considered the evidence produced by the applicant , namely a letter from the editor of The ORG which explained the reasons why he disagreed with the court judgment of DATE , the witness testimony declaring that the relevant area was a building site , his research documents and his statement that he had never referred to PERSON wish to build for himself personally . It considered , firstly , that according to established domestic and continental jurisprudence , a descendant of a defamed person did have a right of action . It reiterated the lower ORG findings in relation to the animus injuriandi and confirmed that their decision based on the finding that the applicant ’s statement had been untrue could not be considered to be repressive . It held that an ordinary reader would have definitely understood the applicant ’s statement to refer to PERSON wish to build there personally and thus did cause harm to his reputation . Moreover , the concept of “ necessary in a NORP society ” did not entail the publishing of falsehoods . As to Article CARDINAL , it held that according to ORG case - law , the right to a fair trial did not extend to the failure to cross - examine persons who had not given testimony and whose interests were being represented by the heirs who could , themselves , be cross - examined . Thus , there could be no violation of ORG CARDINAL or CARDINAL of the Convention .

On appeal , by a judgment of CARDINAL DATE , ORG upheld the first - instance judgment and the ordinary court ’s reasoning under both ORG DATE and CARDINAL . In particular , it rejected the applicant ’s contention that he was referring to PERSON in his role as Prime Minister at the relevant time and not in his personal capacity , and that the applicant had never written that PERSON had wanted to build there for his own personal advantage . It further held that ORG had correctly applied the relevant principles , in particular the concept of “ ordinary reader ” and the importance of reputation .

The pertinent sections of LAW , LAW , in so far as relevant , read as follows :

Section CARDINAL

“ The offences mentioned in this Part of this LAW are committed by means of the publication or distribution in GPE of printed matter , from whatsoever place such matter may originate , or by means of any broadcast . ”

Section CARDINAL

“ Save as otherwise provided in this LAW , whosoever shall , by any means mentioned in section CARDINAL , libel any person , shall be liable on conviction to a fine ( multa ) . ”

Section CARDINAL

“ Criminal proceedings for any offence under Part II and civil proceedings under Part III of this LAW may be instituted against each of the following persons :

( a ) the author , if he shall have composed the work for the purpose of its being published , or if he shall have consented thereto ;

( b ) the editor ; or , if the said persons can not be identified ,

( c ) the publisher . ”

Section CARDINAL

“ Criminal proceedings are independent of civil proceedings . Both proceedings may be instituted at the same time or separately . ”

Section CARDINAL

“ ( CARDINAL ) In the case of defamation , ... , the object of which is to take away or injure the reputation of any person , the competent civil court may , in addition to the damages which may be due under any law for the time being in force in respect of any actual loss , or injury , grant to the person libelled a sum not exceeding QUANTITY and MONEY ( ORG ) . ”

Articles CARDINAL and CARDINAL of the Criminal Code , LAW , read as follows :

Article CARDINAL

“ No proceedings shall be instituted for defamation except on the complaint of the party aggrieved :

Provided that where the party aggrieved dies before having made the complaint , or where the offence is committed against the memory of a deceased person , it shall be lawful for the husband or wife , the ascendants , descendants , brothers and sisters , and for the immediate heirs , to make the complaint . ”

Article CARDINAL

“ ( CARDINAL ) In cases of defamation committed by means of printed matter , the provisions contained in LAW shall apply .

( CARDINAL ) Where , according to LAW , proceedings may only be instituted on the complaint of the party aggrieved , the provisions contained in the proviso to the last preceding article shall also apply . ”


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

The applicant was born in DATE and lived in GPE .

He was the owner of a flat in GPE , which he had let to ORG

In a registered letter of DATE , the applicant informed the tenant that he intended to terminate the lease on expiry of the term on DATE and asked him to vacate the LOC by DATE .

In a writ served on the tenant on DATE , the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate .

By a decision of DATE , which was made enforceable on DATE , the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by DATE .

On DATE , the applicant served notice on the tenant requiring him to vacate the premises .

On DATE , he informed the tenant that the order for possession would be enforced by a bailiff on DATE .

Between DATE and DATE , the bailiff made CARDINAL attempts to recover possession . Each attempt proved unsuccessful , as the applicant was not entitled to police assistance in enforcing the order for possession .

Pursuant to section CARDINAL of Law no . CARDINAL , the enforcement proceedings were suspended until DATE .

On DATE , the applicant reached a friendly agreement with the tenant who was supposed to leave the premises on DATE .

On DATE , the applicant recovered possession of the flat .

Since DATE the public authorities in GPE have frequently intervened in residential tenancy legislation with the aim of controlling rents . This has been achieved by rent freezes ( occasionally relaxed when the Government decreed statutory increases ) , by the statutory extension of all current leases and by the postponement , suspension or staggering of the enforcement of orders for possession . The relevant domestic law concerning the extension of tenancies , the suspension of enforcement and the staggering of evictions is described in the ORG 's judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , § § DATE , ORG CARDINAL-V. Lastly , for some cases , a suspension of the enforcement of the orders for possession until DATE was introduced by Legislative Decree no . CARDINAL of DATE , which became PERSON no . CARDINAL of CARDINAL DATE .

As regards the control of the rents , the evolution of the NORP legislation may be summarised as follows .

The first relevant measure was the PERSON no . CARDINAL of DATE which provided machinery for “ fair rents ” ( the so - called equo canone ) on the basis of a number of criteria such as the surface of the flat and its costs of realisation .

The second step of the NORP authorities dated DATE . It was taken in the view of progressive liberalisation of the market of tenancies . Accordingly , a legislation relaxing on rent levels restrictions ( the so - called patti in deroga ) entered into force . Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price .

Lastly , PERSON no . CARDINAL of DATE reformed the tenancies and liberalised the rents .

NORP The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat . In this regard , LAW provides :

“ The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until DATE when he leaves , together with other remaining damages . ”

NORP However , PERSON no . CARDINAL of DATE set out , inter alia , a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease , proportionally increased according to the cost of living ( LAW no . CARDINAL of DATE ) plus PERCENT , along the period of inability to dispose of the possession of the flat .

In the judgment no . CARDINAL of DATE , ORG was called upon to decide whether such a limitation complied with LAW . ORG held that it was compatible with the LAW with regard to periods of time during which the suspension of the evictions was determined by law . ORG explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation , when the housing shortage made the suspension of the enforcement necessary . While evictions were suspended ex lege , the law predetermined the quantum of the reimbursement chargeable to the tenant , both measures being temporary and exceptional . Besides , the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages .

ORG declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention . Accordingly , it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant .


David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

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

On an unspecified date , following a police raid , a quantity of drugs , sealed in various small sachets , together with other equipment related to drug use were found . The applicant , an individual , “ X ” , and another person were present in the raided LOC . The applicant attempted to flee .

On an unspecified date the applicant was questioned by the police and cautioned and informed about his right to remain silent . On DATE he was visited by a magistrate in order to give evidence as a witness against X. Again the applicant was cautioned and informed about his right to remain silent . In both instances , the applicant , in the absence of a lawyer , availed himself of this right .

The applicant was eventually charged with conspiring with others to deal in drugs , possession of drugs with intent to traffic and simple possession . X , was charged with the same offences . The prosecutor , who had the right by law to decide by which court an accused was to be tried , decided to try X before ORG and the applicant before ORG . That decision , which could not be challenged , had an effect on the range of punishment applicable , in that before ORG the minimum and maximum punishments were higher .

On an unspecified date the applicant ’s trial by jury commenced . Witness statements were heard , PERSON and the applicant giving their versions of events . The applicant told the jury that his presence in the house was entirely innocent . He had given a third person a lift to the house to borrow money from CARDINAL of the occupants . He waited outside for some time , and only then did he knock . He entered the house only at the invitation of the person to whom he had given the lift . On the contrary , X , in his testimony , told the jurors that the applicant and the third person entered the house together .

Other items of evidence produced in court consisted of photographic evidence , cash and illegal substances and items related to drug use found on the LOC . A pharmacist ’s report confirmed that the substance found stored in separate sachets was heroin .

At the end of the proceedings the judge addressed the jurors , explaining their role , the law , the burden of proof , the evaluation of evidence and when inferences could be drawn from silence . He stressed that no such inferences could be drawn in the circumstances of the present case . He further noted , inter alia , that they had to examine why the applicant had kept silent when previously questioned and whether he could be deemed to be credible now that he had opted to give evidence during the trial . The impugned paragraphs mentioned during the TIME address read as follows ( unofficial translation ) :

“ The issue of credibility , namely whether you believe his [ the applicant ’s ] version , or part of it , whether you will disregard parts of it or all of it because it has not been proved to the degree required , in which case it will be dismissed : the applicant ’s lawyer stated that even if you had to ignore his [ the applicant ’s ] testimony , the prosecution has not made out a prima facie case ... this must be given due consideration too , but for a lawyer to say so it must be backed up by arguments as it is easy to say there is no evidence . You must examine the evidence and see whether , notwithstanding what is being argued by the defence , there is not enough evidence in respect of any one of the CARDINAL charges ...

In the present case where the accused is also a witness in another set of proceedings he also has the right to silence and not to incriminate himself . No inferences can be drawn against the applicant , such as stating that once he is saying this it must be because he was hiding something , otherwise he would have mentioned everything .

However , coming to another stage , if after the accused had not given a statement , or if he had given testimony at some stage , as happened in this case , but later decided to remain silent to avoid incriminating himself , he attempts to give an explanation as to why he did not give this version earlier , this explanation is subject to your scrutiny .

Meaning that if he here [ before the criminal court ] says I did not give this version at the start because it was my right not to do so , that is the reason he has submitted . However , you [ the jurors ] have to tell yourself that it is true , it was his right , but ‘ if according to your [ the applicant ’s ] version you [ the applicant ] had nothing to do with the alleged facts and that you [ the applicant ] were just called into the creed like PERSON , had you [ the applicant ] said this earlier to the police , would n’t you [ the applicant ] have avoided a lot of trouble?’ it is legitimate to put this question to yourselves . If he here [ before the criminal court ] gives an explanation as to why he did not tell the truth from the start , you [ the jurors ] have the right to decide whether that explanation was probable and likely to be credible . This is a question for you to decide , without any interference from anyone , but you have the right to do it . If any accused is faced with such a question ... ( example question and answer ) you have the right to ignore his answer and/or see whether his explanation satisfies you to the required degree .

Thus , what you are seeing here is not his right to remain silent , nor the right not to incriminate oneself , but whether he gives an explanation for his silence , or to the change in his version of events . This does not mean that it is so in this case . That is solely something for you as jurors to decide . As judges of fact you have the right to examine this and see whether his explanation satisfies the probability test – is what he is saying probable , or is he saying this because he wants to say something ? If it is probable that what he has done , he did for the reasons he is stating , then you have been satisfied ... if it is improbable , you should see why he is saying this now and not earlier or why he had given a different version .

The inspector further stated that at a certain stage he questioned the accused in hospital , DATE after his accident . His statement is before you ... and I have told you that where he has not replied it was his right not to do so and you may not draw any inferences against him when he did not reply . This did not amount to an admission of guilt . However you must also see – at a different stage of the examination of the accused , when he gave testimony here [ before this court ] , if he gave an explanation as to why at the time he had given that version of events , which is not simply that of his right to silence , but another excuse .... And you have the right to scrutinise these reasons he is here giving you and why he did not tell the truth , if the truth was as innocent as he is depicting it now . You have the right to question and to investigate and take a decision as to whether the explanation he is giving now is worth believing or not . That is your right . However , you may not draw inferences against the applicant from the simple fact that during interrogation he remained silent , or failed to reply , or replied to the generic questions but closed like a sea shell when faced with the more fundamental ones . That was his right .

If he has explained why he did that , you have the right to analyse that explanation and decide whether to believe it or not , whether it is likely or not , probable or not . This is what you have to analyse . Is his version probable or not ? If it is , then you should admit it . If it is not probable it remains to be considered possible ...

When the applicant gave evidence in the proceedings against X he also had certain rights ... namely to remain silent and not to incriminate himself . This is also a right of the accused and you may not say DATE what was he hiding when he chose not to reply , would he have incriminated himself ? – Do not assume anything . However , when he gives an explanation ... You can ask yourself why he did not give it from the start ? You have to see whether his explanation holds water , if it satisfies you to the degree of probability . Why was this explanation not given before to avoid a lot of trouble . Does this explanation hold ? It is your right to scrutinise such and to see whether it makes sense to have such a story and not to have told it earlier . His reasons were : that had he said it before he could have got into trouble with his wife , secondly that drug pushers can turn nasty and that if he had mentioned other people ’s names he might have risked consequences such as revenge against him . You must therefore see if these excuses were plausible . ”

’ imprisonment and a fine of ORG CARDINAL ( approximately EUR CARDINAL ) .

On an unspecified date the applicant appealed . He claimed inter alia that there had been a wrong interpretation and application of the law , namely that the jurors ( who were aware of the applicant ’s previous convictions ) had been instructed to accept statements in accordance with their “ gut feeling ” and had been made to doubt the applicant ’s credibility and to suspect that his lawyer did not believe his innocence . Moreover , the judge had breached the applicant ’s presumption of innocence by first allowing him this protection and subsequently commenting on it to the jury , insinuating that none of the statements made in court by the applicant could be considered credible since he had not made them at an earlier stage ( see quotation above ) . Moreover , he claimed that ORG had erred in its assessment of the evidence .

On DATE ORG upheld ORG judgment in part .

It found that the trial judge had correctly addressed the jury instructing them to assess only facts arising out of the charges and proved in the course of the proceedings and not any prior events , or facts they learned of through the media . The expression “ gut feeling ” had not been appropriate . However , it was probable that the trial judge was referring to a “ moral conviction ” which the jury had to have in order to find the applicant guilty . This was further confirmed by the ensuing explanation regarding the degree of proof which was required to arrive at a verdict of guilt .

As to the issue of credibility , ORG did not interpret the wording used by the trial judge as implying any of the matters alleged by the applicant in his appeal . As to the presumption of innocence , it held that the directions to the jury had amounted to a fair explanation of the position in law at that date , namely that no inferences of guilt should be drawn from the accused’

Lastly , ORG held that it would only take issue with the trial court ’s assessment of the evidence if it were shown that the jury had reached unreasonable conclusions or had based itself on unlawful considerations . However , in view of the imperfections of the directions to the jury , ORG went on to examine the evidence so as to establish whether there had been a miscarriage of justice . Having analysed the evidence before the trial court , including transcripts of witness evidence and the documents exhibited , and having considered the submissions of the parties , ORG found that the jury had chosen to believe the co - accused ’s version of events and not the applicant ’s . It was not for ORG to interfere with the decision of the jury , which had had the advantage of seeing and hearing all the witnesses and apprising itself of the background to the case as presented to them . This notwithstanding , the court went on to determine whether the evidence produced sufficed to find the applicant guilty on each charge . It concluded that there had not been enough evidence to find the applicant guilty of the first charge , namely conspiring with others to deal in drugs . It confirmed the previous findings as to the remainder of the charges . It therefore reduced the sentence to DATE imprisonment and maintained the fine .

On an unspecified date the applicant contested the fairness of these proceedings before the constitutional jurisdictions , invoking inter alia , Articles CARDINAL and CARDINAL of the Convention .

On DATE ORG ( FAC ) found against the applicant .

On DATE ORG rejected the applicant ’s appeal . It held that the discretionary power exercised by the prosecutor had not prevented the applicant from having a fair trial in accordance with LAW . Furthermore , the applicant and X could not be considered as persons in the same situation , and thus no issue arose under LAW .

On an unspecified date the applicant instituted proceedings before the constitutional jurisdictions alleging violation of LAW and DATE , and LAW of his criminal proceedings . He complained that his right to silence had been violated . The fact that the applicant had not made a statement before the trial began had been taken into consideration in assessing his credibility . Moreover , his silence in reply to questions put by a magistrate during an interview while the applicant was in hospital , and after having been warned that proceedings could be taken against him , had also been considered from the standpoint of his credibility . In both instances the applicant had not been assisted by a lawyer . He further complained that his right to be presumed innocent had been breached since ORG declined to interfere with the conclusions reached by the trial court unless they were deemed unreasonable . This was tantamount to an assumption of guilt during the appeal proceedings . Similarly , such reasoning had violated his right of appeal , rendering it ineffective and incompatible with NORP law and LAW .

On DATE ORG ( ORG ) rejected the applicant ’s complaints . As to LAW , having reviewed the procedure followed throughout the proceedings , the court held that the applicant had not been denied a fair trial . It further found that the complaint under LAW No . CARDINAL , regarding the quality of the review by ORG , was ill - founded . The appeal court had in effect reviewed the evidence and varied the sentence , finding the applicant guilty of CARDINAL of the CARDINAL brought against him .

On DATE ORG , although objecting to the way the appeal had been submitted , confirmed the first - instance judgment .

Section CARDINAL ( CARDINAL ) of LAW , LAW , in so far as relevant , reads as follows :

( CARDINAL ) On any appeal against conviction by the person convicted , ORG shall allow the appeal -

( a ) if it considers that the appellant has been wrongly convicted on the facts of the case ; or

( b ) if it considers that there has been an irregularity during the proceedings , or a wrong interpretation or application of the law , which could have had a bearing on the verdict :

Provided that the court may , notwithstanding that it is of the opinion that the point raised in the appeal under paragraph ( b ) might be decided in favour of the appellant , dismiss the appeal if it considers that no miscarriage of justice has actually occurred .

Section CARDINAL ( CARDINAL ) of the LAW , LAW of LAW , in so far as relevant , reads as follows :

“ Every person charged with an offence against this Ordinance shall be tried before ORG or before ORG ( GPE ) or ORG ( Gozo ) , as the Attorney General may direct , ... ”

Under that provision , the maximum punishment before ORG may vary DATE and life imprisonment , whereas that before ORG varies DATE .


Violation of Article 6 - Right to a fair trial

Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

On DATE the applicant company , together with CARDINAL other plaintiffs , PERSON , PERSON and PERSON , all represented by the same lawyer , filed an action against ORG of ORG and PERSON seeking compensation for pecuniary and non - pecuniary damage on account of the unlawful seizure of goods .


CASE OF MUBILANZILA MAYEKA AND KANIKI MITUNGA v. BELGIUM

Violations of Art. 3;Violations of Art. 8;Violation of Art. 5-1;No violation of Art. 5-1 (first applicant);Violation of Art. 5-4;No violation of Art. 5-4 (first applicant);Not necessary to examine Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Françoise Tulkens;Khanlar Hajiyev;Loukis Loucaides;Paul Martens;Sverre Erik Jebens

The first applicant was born in DATE and the second applicant in DATE . They live in GPE ( GPE ) .

The applicants are a mother ( “ the first applicant ” ) and her daughter ( “ the second applicant ” ) . They explained that the first applicant had arrived in GPE on DATE , where she was granted refugee status on DATE and obtained indefinite leave to remain on DATE .

After being granted refugee status , the first applicant asked her brother , PERSON , a NORP national living in the GPE , to collect the second applicant , then DATE , from GPE ( “ the ORG ” ) , where she was living with her grandmother , and to look after her until she was able to join her .

At TIME on DATE PERSON arrived at FAC with the second applicant . He did not have the necessary travel and immigration papers for his niece or documents to show that he had parental authority and so he tried , unsuccessfully , to persuade the immigration authorities that the second applicant was his daughter .

He explained to the NORP authorities that he had been on a trip to GPE to visit his father ’s grave and that the first applicant had asked him to bring the second applicant to LOC in order to join her in GPE . The child had been living with a grandmother who was now too old to look after her and the first applicant ’s attempts to bring her to GPE lawfully had failed .

On TIME the federal police telephoned the first applicant to inform her of the situation and to give her a telephone number where she could ring her daughter . The first applicant explained that she had made an application to the NORP authorities on behalf of her daughter .

On DATE the second applicant was refused leave to enter GPE and directions were made for her removal on the ground that she did not have the documents required by LAW of DATE .

On DATE directions were issued for her to be held in a designated place at the border in accordance with LAW .

Pursuant to that decision the second applicant was detained in FAC no . CARDINAL . Her uncle returned to the GPE .

On DATE a lawyer was appointed by the NORP authorities to assist the applicant and he applied for her to be granted refugee status .

On DATE the NORP authorities contacted the immigration department at the NORP embassy in GPE to request information on the first applicant ’s immigration status in GPE . The immigration department informed them that the first applicant had applied for asylum and indefinite leave to remain in GPE . However , the application for asylum made no mention of the second applicant and so did not extend to her .

In the interim , the first applicant lodged an application in GPE for a visa for her daughter .

On DATE a lawyer , PERSON . , informed the authorities that he had been instructed to replace the lawyer initially assigned to the second applicant and that he was taking steps to secure leave for the first applicant to bring her daughter to GPE .

On DATE ORG enquired informally of the NORP authorities whether they would be willing to take over the second applicant ’s request for asylum under LAW , but they refused .

It also asked PERSON to furnish the addresses of the members of the family in GPE .

In a letter to ORG no . CARDINAL dated DATE , the lawyer thanked the staff at the centre for the friendly welcome they had given to the second applicant and the care with which they had attended to her needs .

On DATE the immigration office at the NORP embassy in the GPE informed ORG by e - mail of the first applicant ’s former address in GPE and her GPE address there .

On DATE the second applicant ’s request for asylum was declared inadmissible by ORG , which refused her leave to enter and gave directions for her removal . The decision stated that she had a right of appeal against the refusal to the Commissioner - General for Refugees and Stateless Persons under the expedited procedure and could apply within DATE to the ORG d’Etat for an order setting aside the removal directions .

The second applicant lodged an appeal under the expedited procedure with the Commissioner - General for Refugees and Stateless Persons .

On DATE , in reply to an enquiry from ORG , the NORP embassy in the ORG advised that the addresses of the members of the applicant ’s family in GPE it had obtained on the basis of information provided by the first applicant were incorrect . The applicants denied that PERSON had given false addresses .

In an e - mail of DATE , the immigration office at the NORP embassy in the GPE informed ORG that the first applicant had not yet been granted refugee status in GPE .

On DATE at the hearing of the appeal under the expedited procedure , the Commissioner - General for Refugees and Stateless Persons upheld the refusal of leave to enter after finding that the second applicant ’s sole aim had been to join her mother in GPE and clearly could not form a basis for an application for refugee status . He drew the Minister of the ORG ’s attention to the fact that , as a minor , the second applicant was entitled to join her family by virtue of LAW dated DATE .

On DATE Mr Ma . sent a letter to ORG advising it that the first applicant had obtained refugee status in GPE and had applied to the NORP authorities for a visa for her daughter . He asked ORG to place the second applicant in the care of foster parents on humanitarian grounds in view of her age and position until such time as the NORP authorities had granted her leave to enter . He added that PERSON , an CARDINAL-year - old NORP national , would make a suitable foster parent . He explained that although the child was being well treated , she was very isolated at the centre and at risk of psychological damage as a result of being detained with adult foreign nationals whom she did not know .

ORG , from whom PERSON . had sought assistance , supported the proposal .

No reply was received to the request . From information in the case file it would appear that ORG dismissed the idea on the grounds that it would place the second applicant at risk , as a warrant had been issued in DATE for the arrest of PERSON father on suspicion of sexual offences against minors and he lived in the same town as PERSON , albeit at a different address . ORG also considered that there was a very real danger that the child would be taken away by her uncle .

NORP In DATE ORG contacted ORG High Commissioner for Refugees ( ORG ) , ORG and the NORP embassy in GPE .

With the embassy ’s help it was able , on the basis of ORG ’s statements , to identify and subsequently locate a member of the second applicant ’s family , namely her maternal uncle , PERSON ( a student living on a university campus with CARDINAL other people in what the embassy described as suitable accommodation and who , according to the applicants , was the sole member of the family still living in the ORG ) . An official from the NORP embassy in GPE went to B. ’s home and explained the situation to him , but PERSON told him that he did not have the means to look after the child .

On DATE the second applicant ’s lawyer lodged an application for her release with the chambre du conseil of ORG under LAW , paragraph CARDINAL , of the LAW DATE . In the application , he sought an order setting aside the removal directions of DATE and an order for the second applicant ’s release and placement with PERSON acting as a foster parent or , failing that , with an institute for young children .

In the interim , he also contacted the ORG , which made enquiries of the family in GPE from which it emerged that no one was prepared to look after the child .

On DATE the NORP authorities booked a seat on a flight on DATE with the same airline as the second applicant had flown with on the outward journey ( they cited its obligation under section CARDINAL of the LAW DATE to transport at its own cost anyone not in possession of the requisite travel papers or who had been removed on lawful grounds to the country from which he had come or any other country prepared to accept him ) . The ORG , Aid to Young People in ORG and the NORP embassy in GPE were informed .

On DATE GPE Crown Counsel informed ORG second applicant ’s application and requested the case file , which ORG supplied on DATE .

According to the Government , PERSON was informed on DATE that his niece would be arriving at TIME on DATE .

In a letter of DATE , ORG advised ORG of its views on the application for the second applicant ’s release :

“ ... the enquiries have enabled the person concerned ’s family to be located in GPE . In view of the positive results of the enquiries as a whole , a flight has already been arranged for DATE . The child will be met at GPE by her family . A representative from our embassy will also be present . Lastly , we would note that the sole responsibility for the length of the applicant ’s detention lies with her uncle , who has been uncooperative and has studiously avoided giving ORG the family ’s address . Accordingly , in the child ’s own interest , she should remain in detention until DATE , when she can be returned to her own family in GPE . ”

On DATE , after receiving confirmation from ORG that the child was to be removed , the NORP embassy official in GPE informed PERSON in the following letter , which was sent by recorded delivery :

“ Dear Sir ,

I wish to confirm the message which the embassy has received from ORG in GPE , namely , the return of your niece GPE to GPE ( N’Djili ) arriving on the LOC flight at TIME on DATE .

Yours faithfully ,

On DATE the chambre du conseil of ORG held that the second applicant ’s detention was incompatible with LAW and CARDINAL of the Convention on the Rights of the LAW and ordered her immediate release . Noting that it had no jurisdiction to authorise her placement in a foster home or an institution , it held that the application was well - founded in part . Its decision was served on the director of ORG no . CARDINAL that DATE .

ORG , who had the right to appeal against that decision within TIME , informed the director of the FAC by fax DATE that he was reserving his decision whether or not to appeal .

On DATE the ORG ’s representative in GPE sent a fax to ORG requesting permission for the second applicant to remain in GPE while her application for a NORP visa was being processed . It drew the ORG ’s attention to the fact that there did not appear to be an adult in GPE who was able and willing to look after the second applicant , since , according to the information in its possession , PERSON was still a student . It added that the first applicant had had refugee status in GPE since DATE , that the second applicant ’s father had disappeared in DATE and that her twin sister had been taken to GPE - GPE DATE .

On DATE the second applicant was deported to the ORG . She was accompanied by a social worker from ORG no . CARDINAL who placed her in the care of the police at the airport . On board the aircraft she was looked after by an air hostess who had been specifically assigned to accompany her by the chief executive of the airline . The second applicant travelled with CARDINAL NORP adults who were also being deported .

There were no members of her family waiting for her when she arrived . The Government explained that after considerable efforts the embassy official had obtained B. ’s agreement to come to the airport to meet his niece . However , he had reneged on his promise at TIME .

The parties have not formally established whether or not a member of the NORP embassy was at the airport , as stated in ORG letter of DATE . The second applicant stayed at the airport until TIME before eventually being collected by PERSON , a secretary at ORG of the ORG , who offered her accommodation .

On DATE the first applicant rang ORG no . CARDINAL and asked to speak to her daughter . She was informed that she was no longer staying at the ORG and advised to contact ORG for further details , which she did . ORG did not provide her with any explanation but suggested she speak to the ORG , from whom she learnt of her daughter ’s deportation to GPE .

On DATE the official from the NORP embassy in GPE went to B. ’s home , only to discover that he had disappeared .

On DATE the NORP authorities received a message from the NORP embassy in GPE informing them that the first applicant had been granted refugee status and indefinite leave to remain in GPE with a work permit in DATE and was consequently entitled to have her family join her .

The second applicant left the ORG on DATE following the intervention of the NORP and NORP Prime Ministers , with the latter agreeing in principle to authorise the reunification of the family . The second applicant travelled to GPE with PERSON and from there to GPE DATE on a NORP visa . During the stopover in GPE , PERSON and the second applicant were accompanied by CARDINAL officials from the NORP embassy . The journey was paid for by the NORP authorities .

The case had attracted considerable attention from the press in the meantime .

On DATE the airline which had flown the second applicant back to GPE informed ORG that she had not travelled alone , but with CARDINAL other aliens who were also being removed . It said that it had arranged for an air hostess to look after her until she was handed over to the authorities in GPE .

On DATE the first applicant applied to the NORP authorities for a visa permitting family reunification .

At the request of ORG , the director of ORG no . CARDINAL described the second applicant ’s living conditions at the centre in a letter of DATE . He explained that she had been looked after by CARDINAL women who were themselves mothers , that she had played with other children , that her uncle and mother had telephoned her DATE and that she had been allowed to telephone them free of charge under the supervision of a team of social workers ; he added that her lawyer had paid her a number of visits and had brought her telephone cards , confectionary and money , that she had often played outdoors , had watched large numbers of videos , done drawings and arithmetic and had been comforted if she showed any signs of distress after telephone calls from her family . The director also explained that during the removal procedure the second applicant had been accompanied to the embarkation area ( more precisely , the federal police checkpoint ) by a social worker and that the entire staff at FAC no . CARDINAL were concerned about the welfare of children , particularly unaccompanied minors .

“ Administrative decisions may give rise to an appeal under the expedited procedure , an application to reopen the proceedings , a request for security measures to be lifted , an application to an administrative court to have the decision set aside or an appeal to an ordinary court in accordance with the following provisions .

No summary application for an interim order under LAW will lie against an administrative decision taken pursuant to sections CARDINAL , DATE , DATE , DATE , Part II , LAW , and LAW , LAW I bis . ... ”

“ Aliens against whom a measure depriving them of their liberty has been taken pursuant to sections DATE , CARDINAL , second paragraph , CARDINAL/CARDINAL(CARDINAL ) , fourth paragraph , CARDINAL bis , fourth paragraph , DATE , CARDINAL/CARDINAL , third paragraph , CARDINAL and CARDINAL/CARDINAL may appeal against that measure by lodging a notice of appeal with the chambre du conseil of the criminal court with jurisdiction for the area in which they reside in the GPE or the area in which they have been found .

Aliens held in a designated place at the border pursuant to section CARDINAL/CARDINAL may appeal against the measure by lodging a notice of appeal with the chambre du conseil of the criminal court with jurisdiction for the area in which they are being held .

They may renew the appeal referred to in the preceding paragraphs at DATE intervals . ”

“ The chambre du conseil shall deliver its decision within DATE after the date the appeal is lodged after hearing the submissions of the alien or of his or her counsel and the opinion of ORG . If the case has been referred to it by the Minister in accordance with section CARDINAL , the chambre du conseil must hear submissions from the Minister , his or her delegate or his or her counsel . If it fails to deliver its decision within the time allowed , the alien shall be released .

The chambre du conseil shall review the legality of the detention and of the removal directions but shall have no power to review their reasonableness .

An appeal shall lie against orders of the chambre du conseil by the alien , ORG and , in the circumstances set out in section CARDINAL , the Minister or his or her delegate .

The procedure shall be the same as that applicable under the statutory provisions on pre - trial detention , with the exception of the provisions relating to arrest warrants , investigating judges , prohibitions on communications , release on licence or on bail , and the right to inspect the administrative file .

Counsel for the alien may consult the case file at the registry of the relevant court during DATE preceding the hearing . The registrar shall notify counsel of the decision by registered letter . ”

“ If the chambre du conseil decides that the alien is not to remain in custody , he or she shall be released as soon as the decision becomes final . The Minister may order the alien to reside in a designated place either until the removal directions have been carried out or until his or her appeal has been decided . ”

“ If the Minister decides to prolong the alien ’s detention or to keep him or her under arrest pursuant to section CARDINAL , paragraph CARDINAL , section CARDINAL , paragraph CARDINAL , section CARDINAL , paragraph CARDINAL , section CARDINAL/CARDINAL(CARDINAL ) , or section CARDINAL/CARDINAL(CARDINAL ) , he or she must apply within DATE of that decision to the chambre du conseil with jurisdiction for the area in which the alien is resident in the GPE or was found to enable it to determine whether the decision is lawful . If no application is made to the chambre du conseil within that period , the alien shall be released . The remainder of the procedure shall be as stated in DATE . ”

“ § CARDINAL . Any public or private carrier bringing passengers into the GPE who are not in possession of the documents required by section QUANTITY or who come within any of the other categories referred to in section CARDINAL shall transport or arrange for the transport of such passengers without delay to the country from which they have come or to any other country prepared to accept them .

§ CARDINAL . Any public or private carrier which has brought passengers into the GPE will also be required to remove them if :

( a ) the carrier that was due to take them to their country of destination refuses to allow them to embark ; or

( b ) the authorities in the ORG of destination refuse them leave to enter and send them back to the GPE and access to the GPE is refused because they do not possess the documents required by section QUANTITY or they fall within any of the other categories referred to in section CARDINAL .

§ CARDINAL . NORP If the passengers do not possess the documents required by LAW and their immediate removal is not possible , the public or private carrier shall be jointly liable with the passengers for the costs of the ORG accommodation and stay and any medical expenses they incur .

“ § CARDINAL . NORP The following persons may be held in a designated place at the border pending the grant or refusal of leave to enter the GPE or their removal from the territory :

CARDINAL NORP aliens who , pursuant to the provisions of this Act , are liable to be refused entry by the immigration authorities ;

CARDINAL NORP aliens who attempt to enter the GPE without satisfying the conditions set out in section CARDINAL , who claim to be refugees and request refugee status at the border .

§ CARDINAL . The ORG may designate other places within the GPE which will be assimilated to the places referred to in DATE .

Aliens held in such other places shall not be deemed to have been given leave to enter the GPE .

§ CARDINAL . Detention in a designated place at the border may not exceed DATE . The Minister or his or her delegate may however prolong the detention of an alien referred to in CARDINAL for DATE periods provided :

CARDINAL the alien is the subject of enforceable removal directions , an enforceable decision to refuse entry or an enforceable decision upholding the refusal of entry ; and

CARDINAL the steps necessary to remove the alien are taken within DATE of the decision or measure referred to in CARDINAL and are prosecuted with all due diligence and the alien ’s physical removal within a reasonable period remains possible .

After CARDINAL extension has been granted , the decision referred to in the preceding paragraph may only be taken by the Minister .

The total length of detention shall under no circumstances exceed DATE .

If the preservation of law and order or national security so demands , aliens may be held for further successive DATE periods after the time - limit referred to in the preceding paragraph has expired , provided that the total length of their detention shall not on that account exceed DATE .

§ CARDINAL . The following may enter the GPE :

CARDINAL NORP aliens referred to in § CARDINAL against whom no decision or enforceable measure referred to in § CARDINAL , paragraph CARDINAL , CARDINAL has been taken ;

CARDINAL NORP aliens referred to in § CARDINAL against whom an enforceable decision or measure referred to in § CARDINAL , paragraph CARDINAL , CARDINAL has been taken but in respect of whom the Minister or his or her delegate has not extended the period at the end of the DATE period or of any extension thereof ;

CARDINAL NORP aliens referred to in § CARDINAL who have been held for a total period of DATE respectively .

“ CARDINAL . In all actions concerning children , whether undertaken by public or private social welfare institutions , courts of law , administrative authorities or legislative bodies , the best interests of the child shall be a primary consideration .

DATE States Parties undertake to ensure the child such protection and care as is necessary for his or her well - being , taking into account the rights and duties of his or her parents , legal guardians , or other individuals legally responsible for him or her , and , to this end , shall take all appropriate legislative and administrative measures .

DATE States Parties shall ensure that the institutions , services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities , particularly in the areas of safety , health , in the number and suitability of their staff , as well as competent supervision . ”

“ CARDINAL . In accordance with the obligation of GPE Parties under LAW , paragraph CARDINAL , applications by a child or his or her parents to enter or leave a ORG for the purpose of family reunification shall be dealt with by GPE Parties in a positive , humane and expeditious manner . GPE Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family .

“ CARDINAL . DATE States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall , whether unaccompanied or accompanied by his or her parents or by any other person , receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said GPE are Parties .

For this purpose , GPE Parties shall provide , as they consider appropriate , cooperation in any efforts by ORG and other competent intergovernmental organisations or non - governmental organisations cooperating with ORG to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family . In cases where no parents or other members of the family can be found , the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason , as set forth in the present Convention . ”

“ GPE Parties shall ensure that :

( b ) No child shall be deprived of his or her liberty unlawfully or arbitrarily . The arrest , detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time ;

( c ) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person , and in a manner which takes into account the needs of persons of his or her age . In particular , every child deprived of liberty shall be separated from adults unless it is considered in the child ’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits , save in exceptional circumstances ;

NORP In its “ Concluding observations of ORG of DATE , ORG made the following recommendation to GPE :

“ CARDINAL . ...

( a ) Expedite efforts to establish special reception centres for unaccompanied minors , with special attention to those who are victims of trafficking and/or sexual exploitation ;

( b ) Ensure that the stay in those centres is for the shortest time possible and that access to education and health is guaranteed during and after the stay in the reception centres ;

( c ) Approve as soon as possible the draft law on the creation of a guardianship service , in order to ensure the appointment of a guardian for an unaccompanied minor from the beginning of the asylum process and thereafter as long as necessary , and make sure that this service is fully independent , allowing it to take any action it considers to be in the best interests of this minor ;

( d ) Ensure unaccompanied minors are informed of their rights and have access to legal representation in the asylum process ;

( e ) ORG cooperation and exchange of information among all the actors involved , including ORG and other relevant authorities , police services , tribunals , reception centres and NGOs ;

( f ) Ensure that , if family reunification is carried out , it is done in the best interests of the child ;

( g ) Expand and improve follow - up of returned unaccompanied minors . ”


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych

The applicant , Mr Sergiy Vasylyovych Boyarchenko , is a NORP national who was born in DATE and lives in PERSON . He was represented before the Court by PERSON , a lawyer practising in PERSON . ORG ( “ the Government ” ) were represented by their Agents , PERSON and Mr PERSON .

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

On DATE the applicant brought a car registered in GPE ( a DATE ORG CARDINAL ) into the customs territory of GPE . When crossing the border he undertook an obligation to re - export the car before DATE . According to the ORG authorities he failed to do so .

On DATE , ORG ( “ the ORG ” ) drew up a report on an infringement of customs regulations due to the applicant ’s failure to remove the car from the customs territory of GPE ( LAW ) . This case of a violation of customs regulations was referred to ORG of PERSON ( “ the Novozavodsky Court ” ) for consideration .

On DATE , having heard the applicant , who stated that he had taken the car to GPE , although he had no confirmation for this , and ORG , which explained that a check of the records did not confirm that the car had crossed the border into GPE , ORG returned the case to the customs authorities for corrections and additional verification . In particular , the court noted that the information submitted by the ORG authority contained an inaccuracy as to the chassis number of the vehicle ( DATE instead of DATE ) and therefore the court ordered that the customs records be checked once again with the correct chassis number .

On DATE the applicant left GPE to take up permanent residence in GPE without informing the court about his new address .

ORG summoned the applicant for a further hearing in DATE .

By a letter of DATE , the applicant ’s lawyer informed the court that the applicant had registered as having left his apartment in GPE and had left for GPE at DATE . He also stated that the applicant had not been notified about the court hearing as the applicant ’s actual location was unknown to him .

The court summoned the applicant again for a hearing in DATE .

On DATE the court considered the case in the applicant ’s absence . The applicant ’s mother , who appeared before the court , confirmed that his actual place of residence was unknown . The court considered the applicant ’s failure to appear before it as an intentional evasion from justice and decided that the case could be considered in the applicant ’s absence . The court then found the applicant guilty of having failed to re - export the car in violation of LAW of the ORG DATE and reclassified the offence under LAW ORG DATE . The court ordered the confiscation of the vehicle , but given that the car ’s location was unknown , it replaced confiscation with payment of CARDINAL NORP hryvnias ( ORG ) ( MONEY ( ORG ) ) , which corresponded to the value of the car , in accordance with LAW .

On an unknown date the applicant lodged a request for review of the decision of DATE with the President of ORG .

By a letter of DATE the President of ORG informed the applicant that he had examined his case file and his request and found no reason for the review . He noted , in particular , that the decision of DATE was in accordance with law and that the applicant had been duly summoned twice at the address indicated by him and had provided no justification for his absence .

Relevant provisions of the Codes are summarised in the case of ORG v. GPE ( no . CARDINAL , § § CARDINAL - CARDINAL , CARDINAL DATE . )

The new ORG Code contains provisions relevant to the case which are similar to those in the old LAW .

Section CARDINAL of the PERSON provides for a fine or confiscation of goods in case of infringement of the obligation on taking the items in or out the customs territory of GPE ( LAW of the ORG Code CARDINAL ) .

Section CARDINAL of the Code foresees that , as a general rule , court hearings shall be conducted in the presence of the person against whom proceedings on violation of custom regulations have been brought . However , the hearings can be conducted in the absence of such a person when there is information about the timely notification of this person about the place and time of consideration of the case , but he or she has not submitted any request for adjournment of the case .

Section CARDINAL of the Code stipulates that if the confiscation ordered by the court is impossible the pecuniary equivalent of the value of the items to be confiscated shall be collected from the persons who have infringed the customs regulations ( Section CARDINAL of the Customs Code CARDINAL ) .


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra

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

CARDINAL .

DATE the applicant was the leader of the drivers ' trade union of a bread - making company in GPE . He was also a member of ORG ( “ GPE ” , PERSON Ţărănesc creştin şi NORP ) . On DATE his work contract was terminated on disciplinary grounds .

NORP In the DATE issue of the DATE local journal PERSON published an article under the heading : “ The snake within the GPE – because of him , PERSON was almost left without bread ” ( GPE din sânul GPE – din cauza PERSON era să rămână fără pâine ) in which he accused the applicant mainly of maintaining an ungrounded conflict with the company 's management , of harassing and defaming its director , of having repeatedly neglected his work duties alleging trade union needs and of having jeopardised bread distribution in PERSON in pursuit of his personal goals .

The relevant parts of the article read as follows :

“ ... Through his actions – lying , defaming and falsifying DATE he does nothing but undermine the GPE 's credibility ... That is why PERSON may be called , without hesitation :

The snake within the GPE

Paradoxically , sometimes bad faith comes from within the trade unions . I say this because the conflict between an uninspired trade union leader and the management of [ the bread - making company in GPE ] jeopardised the bread supply of the inhabitants of GPE on several occasions . ”

The article was accompanied by the applicant 's photograph and several documents issued by the employer or the trade union concerning the applicant 's activity .

On DATE the applicant lodged a criminal complaint with the ORG against ORG , the director of PERSON , and GPE , its chief editor . He accused them of having damaged his reputation by publishing that article . He sought CARDINAL NORP Lei ( ROL ) in respect of nonpecuniary damage .

DATE and DATE , LOC held several hearings in the case . However , it could not examine the case , as GPE had not been properly identified and summoned ( according to the applicant , another person with the same name had been summoned to appear in court instead ) . In addition , the applicant claimed that on DATE the court had informed him that the next hearing would take place on DATE , whereas in reality the court had met on DATE , and thus he was not able to participate in the court hearing . He was present at the other hearings .

On DATE the court sent the case to ORG and asked it to identify the accused GPE

On DATE the prosecutor sent the case back with the information requested and it was registered in the ORG list of cases again .

The applicant complained CARDINAL times against the judges or prosecutors , asking them to step down . His requests were all dismissed .

The parties were heard and documents were adduced . The applicant claimed that the court had refused to hear his witness and had not asked for additional evidence .

The court gave judgment on DATE . It acquitted the journalists and dismissed the applicant 's claim for damages . It also ordered the applicant to pay ROL CARDINAL,CARDINAL,CARDINAL to the ORG in respect of costs incurred in the proceedings .

It noted that GPE had written the article in good faith , had based it on documents provided by ORG and information available in other press articles previously published on the subject , and had checked the facts by means of a journalistic investigation . Furthermore , the applicant had failed to prove that the journalists had acted with the intent to defame him .

The applicant appealed , arguing notably that the court 's decision contradicted the evidence in the file , that the court had not examined the offensive language used in the article , had not given reasons for rejecting the civil claims and had unlawfully ordered him to pay the costs incurred by the ORG . He also requested that the court declare null and void an interlocutory judgment by means of which ORG upheld a request by CARDINAL of the judges to be allowed to step down from the case .

In addition , on DATE he also lodged a constitutional complaint against the order to pay costs . On DATE the complaint was dismissed as unfounded by ORG , on the ground that justice was not free of charge and that court fees did not as such restrict or deny access to court , as in any case the authorities were bound to investigate and decide on the case even when the parties refused to cover the expenses .

In a final decision of CARDINAL DATE ORG upheld the judgment .

ORG had examined the applicant 's arguments one by one . In essence , it found that the first - instance court had correctly interpreted the facts and the evidence in the file and considered that the reasons given for acquitting the journalists constituted relevant justification for dismissing the civil claim . It also considered that the complaints against the interlocutory judgment and against the obligation to reimburse the costs were unfounded .


André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska

The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . She is represented before the ORG by Mr D. Medvedskiy , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent Mr PERSON , succeeded by PERSON .

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

On DATE the applicant , who was working at the time as an international train manager , was detained on suspicion of attempted crossborder smuggling of goods , following a conspiracy by a group . She remained in detention , on the basis of judicial decisions , until she was convicted , on DATE , by ORG . By this verdict the court found the applicant guilty as charged and sentenced her to DATE imprisonment , suspended for DATE , and placed her on probation . She was released at the conclusion of the hearing .

The applicant is suffering from a number of kidney , stomach and spinal problems and has a long history of various gynaecological health problems . Thus , since DATE , when she had her left ovary , right fallopian tube and a benign breast tumour removed , she has been being monitored by ORG обласний протипухлинний центр , hereafter “ the Cancer Treatment Centre ” ) .

On DATE the applicant ( who had been in detention since CARDINAL DATE , see above ) was examined at FAC . The doctor recommended that she undergo additional examination and , if necessary , treatment in their centre .

On DATE , CARDINAL DATE , the applicant was taken to ORG no . CARDINAL Hospital ( “ the ORG ” ) , where she underwent inpatient treatment for pyelonephritis ( inflammatory kidney disease ) for DATE .

On DATE , after her discharge from ORG , the applicant was taken back to ORG , where she underwent another medical examination .

From CARDINAL to DATE the applicant was hospitalised in ORG ( Донецьке обласне клінічне територіальне медичне ORG , hereafter referred to as “ FAC ” ) for treatment in respect of a number of chronic kidney , gastric and gynaecological conditions . She was examined by doctors including a neuropathologist , a gastroenterologist , a gynaecologist , and an endocrinologist , was prescribed the necessary treatment , and its implementation was monitored . When the applicant was discharged from the hospital it was recommended that she have a further examination by a kidney specialist in about CARDINAL months’ time .

An X - ray on DATE identified a suspicious shadow on the applicant ’s lung . On DATE a tuberculotherapist diagnosed her with pneumonia and tuberculosis and prescribed non - specific antibacterial therapy for DATE , to be followed by an X - ray examination and another consultation .

On DATE the administration of ORG ( “ the GPE ” ) informed the applicant ’s representative in reply to his inquiry that having regard to its limited resources it was not able to provide the applicant with medical treatment in full compliance with the ORG recommendations .

From DATE to DATE the applicant underwent inpatient treatment for tuberculosis in the GPE medical unit , which consisted of several courses of antibacterial therapy . According to the information submitted by the Government ( not commented on by the applicant ) , she was also examined by tuberculotherapists , including from ORG , on DATE and DATE , DATE , DATE , DATE and DATE , as well as on DATE and DATE . Furthermore , on DATE , DATE and DATE , as well as on DATE and DATE , the applicant underwent X - ray examinations . According to the Government , the applicant then recovered from tuberculosis . They referred in this connection to the conclusion of ORG of DATE , according to which the applicant ’s radiograph of DATE showed post - tuberculosis residual changes in her lungs . Subsequent medical monitoring was recommended in that regard . The applicant however stated that she was still suffering from tuberculosis .

Meanwhile , on CARDINAL , DATE and DATE the applicant was again examined by ORG specialists , who diagnosed nodal mastopathy and ovarian cyst and recommended anti - inflammatory therapy , additional examination and surgery at their centre .

From DATE until her release on DATE the applicant underwent inpatient treatment in the GPE medical unit for gastric ulcer , gastroesophageal reflux disease , osteochondrosis and residual encephalopathy .

According to information from ORG , issued on DATE at the request of ORG , the applicant had no contact with ORG after DATE .

From DATE to CARDINAL DATE she was hospitalised in ORG and ORG for urolithiasis of the left kidney .

On DATE the applicant underwent ovarian surgery in ORG of ORG no . CARDINAL , from which she was discharged on DATE “ in a satisfactory state of health ” .


CASE OF SYLENOK AND TEKHNOSERVIS-PLUS v. UKRAINE

Violation of Art. 3;Violation of Art. 6-1;Violation of Art. 13;Violation of P1-1

Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

The first applicant ( “ the applicant ” ) was born in DATE and lives in PERSON . The second applicant ( “ the applicant company ” ) is a limited liability company owned by the applicant and registered and based in PERSON .

On DATE the applicant was arrested in the street by plain - clothes police officers – Mr S. , PERSON , PERSON and PERSON The applicant resisted his arrest , being unaware at the time that they were police officers . According to the applicant , during the arrest and later on at the police station he was beaten by the police officers .

On DATE the applicant was hospitalised with a broken rib , pneumothorax , head concussion and numerous bruises on his body . A forensic medical examination conducted DATE and DATE revealed numerous bruises on different parts of the applicant 's body and brain concussion . At the same time it did not confirm that the applicant had a broken rib .

On DATE the applicant complained to ORG ( the CCPO ) about the beatings .

On DATE the CCPO refused to institute criminal proceedings in respect of the applicant 's allegations . It noted that according to the explanations of the police officers the applicant had violently resisted his arrest and therefore they had applied force and had used handcuffs . Furthermore , the police investigator Mr PERSON had explained that he and other police officers had not committed any unlawful actions involving the applicant at the police station . Therefore , it concluded that the use of force against the applicant had been lawful .

On DATE ORG ( the CRPO ) quashed the decision of DATE owing to incompleteness of the investigation and instructed the CCPO to conduct additional investigative actions , including questioning of the applicant and detailed questioning of each police officer involved in the incident about the circumstances of the applicant 's arrest and the individual actions of each police officer involved .

An additional forensic examination of DATE concluded that the applicant had numerous bruises resulting from the application of force CARDINAL to CARDINAL times , a broken rib , chest trauma , pneumothorax and brain concussion .

On DATE the CCPO refused to institute criminal proceedings on the ground that , as it transpired from the testimony of the police officers involved in the incident , they had applied force lawfully during the arrest and had not used any unlawful means against the applicant in detention .

On DATE the Chernigiv ORG ( ORG ) quashed the decision of DATE on the ground that the applicant and eyewitnesses to the incident had not been questioned and that the decision of the CCPO had not established the circumstances in which the applicant had received so many injuries . The court ordered criminal proceedings to be instituted in the case .

On DATE the CCPO started the criminal investigation . Between CARDINAL May and DATE CARDINAL witnesses were questioned .

DATE and DATE the applicant was summoned CARDINAL times by the investigator but failed to appear .

On DATE the applicant was found guilty of inflicting medium bodily harm on CARDINAL of the arresting officers – PERSON This decision was upheld on appeal but quashed in cassation proceedings on DATE .

On DATE the criminal proceedings into the infliction of bodily harm on the applicant were suspended for failure to identify the offenders .

On DATE the ORG quashed the decision on suspension of the criminal proceedings and they were resumed .

On DATE the applicant was summoned by the investigator but failed to appear .

On DATE CARDINAL witnesses were questioned .

On DATE the applicant was recognised as a victim in the case .

On DATE the applicant was questioned as a victim .

DATE and DATE CARDINAL witnesses were questioned .

On DATE the applicant failed to appear for questioning . On this date and further on CARDINAL and DATE the investigator ordered that the applicant be brought before him ( примусовий привід ) .

On DATE , DATE the cross - examination between the applicant and PERSON , and police officers PERSON , PERSON , PERSON . , PERSON and PERSON , took place .

On CARDINAL DATE the criminal proceedings were suspended for failure to identify the offenders .

On DATE the CRPO quashed the decision of CARDINAL DATE on the suspension of criminal proceedings . The proceedings were resumed .

On DATE the investigator requested the applicant to provide him with the medical documents concerning the incident in order to conduct an additional forensic medical examination . According to the Government , the applicant did not provide the documents requested .

On DATE the criminal proceedings were suspended for failure to identify the offenders .

On DATE the ORG quashed the decision of CARDINAL DATE on the suspension of criminal proceedings . The proceedings were resumed .

On DATE the investigator ordered that the applicant be brought before him . At this time the applicant was detained in the PERSON in connection with other proceedings .

On DATE the ORG quashed the decision of DATE on the suspension of criminal proceedings . The proceedings were resumed .

On DATE and DATE the applicant was summoned by the investigator but failed to appear .

On DATE one witness was questioned .

DATE and DATE CARDINAL CARDINAL witnesses were questioned .

On DATE the ORG terminated the criminal proceedings for lack of corpus delicti in the actions of the police officers . The ORG noted that most of the witnesses , owing to the significant lapse of time , could not remember details of the incident and that the original testimonies of the police officers were correct and these officers had acted in accordance with the law .

On DATE ORG ( the ORG ) quashed the decision of CARDINAL DATE and remitted the case for an additional investigation .

On DATE and CARDINAL and DATE the applicant was summoned by the investigator but failed to appear .

On DATE , CARDINAL DATE and CARDINAL DATE the applicant was summoned by the investigator but failed to appear .

Since DATE , when the applicant was placed on the list of wanted persons in the context of another criminal case in which he was a defendant , the applicant has failed to appear on summons of the investigator .

On DATE the ORG received the medical documents from the applicant and on DATE the forensic medical examination was ordered .

On DATE the ORG awarded the applicant company ( from the ORG budget ) CARDINAL NORP hryvnias ( ORG ) in damages , ORG CARDINAL in fees and UAH CARDINAL.CARDINAL in costs and expenses . On DATE the judgment became final and on CARDINAL DATE the court issued a writ of enforcement .

On DATE the applicant company lodged the writ with ORG .

On DATE the bailiffs ' service refused to enforce the judgment of DATE owing to non - compliance of the enforcement writ with the formalities .

DATE . On DATE the applicant company lodged the same enforcement writ with ORG , which rejected it DATE for lack of jurisdiction .

On DATE the applicant company lodged the writ with ORG , which rejected it DATE , as the enforcement writ did not indicate the debtor or its location .

On DATE the applicant company requested ORG to specify in the enforcement writ the accounts of ORG from which the awarded amounts should be paid .

On DATE the court rejected the applicant company 's request on the ground that the representative of the ORG had not appeared and the other parties did not know the accounts , nor were they indicated in the case - file materials .

On DATE the applicant company repeatedly requested the court to bring the enforcement writ into compliance with the formalities . This request was rejected on DATE .

On DATE the applicant company lodged the same request with the same court once again .

According to the ORG , the judge of ORG invited the representative of the applicant 's company to the court to provide explanations , but the representative failed to appear .

Relevant domestic law concerning the applicant 's case can be found in the judgment in the case of PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) . Relevant domestic law concerning the applicant company 's complaints is summarised in PERSON v. GPE ( no . PERSON , § § DATE , DATE ) .


Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva

The applicant , Mr PERSON GPE , is a NORP national who was born in DATE and lives in GPE . ORG ( “ the Government ” ) are represented by their Agent , PERSON , of ORG .

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

Enforcement of the judgment given in the applicant ’s favour

On DATE the open joint - stock company GPE ( “ the company ” , ORG ВАТ ЕК „ Закарпаттяобленерго ” ) found that the applicant had been using QUANTITY which had been damaged . Consequently his electricity bills were recalculated . On DATE the company disconnected the applicant ’s household electricity supply since the applicant had failed to pay the amount he owed because of the damaged meter .

On DATE the applicant lodged a complaint with ORG ( “ the court ” , ORG районний місцевий суд ORG областi ) against the company , requesting that his electricity supply be restored and that he receive a response to his request for information .

On DATE the court partly dismissed the applicant ’s claims and partly left them unexamined .

On DATE ORG ( the “ court of appeal ” PERSON суд PERSON області ) quashed the ruling of the first - instance court . The court of appeal ruled that the disconnection had been unlawful , since NORP law did not allow cutting the electricity supply for the reasons given by the company . The court of appeal ordered that the applicant ’s household be reconnected to the electricity supply and that a response be given to his request for information .

According to the applicant ’s submissions , on DATE he requested the court to provide him with the writ of execution in respect of the judgment of DATE , as the company had failed to execute it voluntarily within the time - limit prescribed by NORP law .

On DATE the company restored electricity to the applicant ’s apartment . The Government provided this ORG with a copy of the company ’s letter of DATE containing a reply to the applicant ’s request for information .

On DATE a judge of the court informed the applicant that a copy of the judgment at issue had already been transferred to the company for execution and that under NORP legislation no writ of execution was necessary . It further informed the applicant that such a transfer was the only component of the mechanism provided for by the law to enforce the judgment at issue and was sufficient for that purpose .

In DATE the applicant instituted administrative proceedings in the court of appeal against the judge of the court , seeking to oblige him to provide the applicant with the writ of execution .

On DATE the court of appeal refused to consider the applicant ’s complaint , finding that the issuing of the writ of execution was within the realm of the judicial and not the administrative functions of the court and so could not be challenged in court .

On DATE ORG rejected the applicant ’s request for leave to appeal in cassation against the decision of DATE .

ORG The second disconnection of the applicant ’s household electricity supply

On DATE an officer of the company inspected the applicant ’s household electricity supply installation . The officer found that the applicant had failed to sign the agreement on electricity supply with the company , he had no electricity meter , and his household electricity supply installation did not comply with technical standards as prescribed by NORP law . On DATE a report containing a list of the shortcomings was drafted . The applicant was given DATE to rectify them .

On DATE an officer of the company inspected the applicant ’s household electricity supply installation and found that he had failed to rectify the shortcomings . He was given additional time to rectify them , until DATE . As the applicant failed to rectify the shortcomings , the company disconnected the applicant ’s household from the electricity supply in pursuance of paragraph CARDINAL of the Rules on Use of Electricity by Residential Customers .


Violation of Art. 6-1;Violation f Art. 10

The applicants were born in DATE and DATE respectively and live in GPE . DATE and DATE they took part in a play , entitled “ An Enemy of Justice ” ( PERSON ) , as actors . The play was staged on CARDINAL occasions in a number of towns and cities in GPE .

A number of newspapers and TV stations devoted coverage to the play and several provisions of LAW , which the applicants were supposed to have breached , were cited in some of those newspapers . On DATE the DATE PERSON newspaper ran the headline “ The play that led the general to rebel ” , referring to an army general having severely criticised the ruling ORG and its leader PERSON because of the play staged by the applicants .

On DATE the first , third and fourth applicants were arrested by police officers from the anti - terror Branch of the GPE police headquarters and placed in custody . The second applicant was arrested and detained DATE . The reason for their arrest was a criminal investigation opened by the prosecutor at ORG in connection with the play . The applicants did not have access to their lawyers while in police custody .

On DATE the applicants appeared before the judge at ORG in GPE . According to the verbatim records of this meeting , the applicants were accused of the offence of “ incitement of the public to an armed uprising against the armed forces ” , contrary to LAW in force at the time .

The applicants all stated that there was nothing in the play which could be interpreted as an incitement to an uprising . Nevertheless , the judge ordered their detention on remand , pending the introduction of criminal proceedings .

On DATE the prosecutor at ORG filed an indictment with that court and charged the applicants and CARDINAL other persons with the above mentioned offence . CARDINAL of the QUANTITY persons is the playwright . The other QUANTITY people had assisted in the staging of the play in various cities in CARDINAL way or another .

According to the indictment , the play was based on the perception that there was a risk of an attack , in the form of a military coup , against NORP . In CARDINAL part of the play , a number of NORP are gathered and discuss possible ways of avoiding that risk . CARDINAL person suggests that NORP should establish an armed force as a deterrent , regardless of the existence or otherwise of the risk of a military coup . At the end of the play a military coup takes place and the leader of the NORP is sentenced to death .

Criminal proceedings commenced before ORG of ORG ( hereinafter “ the trial court ” ) while the applicants were being held in detention pending the outcome . One of the CARDINAL judges on the bench of the trial court was a military officer . In their defence petitions submitted to the trial court , the applicants stated , inter alia , that the play was set in an imaginary country called “ PERSON ” and had nothing to do with GPE ; the dialogue in the play constituted “ artistic events ” . The play included a number of expressions and opinions , but it was not possible to regard them as incitement to armed rebellion .

During the criminal proceedings , the prosecutor requested the trial court to convict the applicants of the offence of “ incitement to hatred or hostility on the basis of a distinction between social classes , race , religion , denominations or region ” , contrary to LAW then in force , and not for the offence mentioned in the indictment .

On DATE the trial court found the applicants guilty of the offence under LAW and sentenced them to DATE and CARDINAL months’ imprisonment and the payment of a fine . The playwright was sentenced to CARDINAL years’ imprisonment . The other CARDINAL defendants were acquitted .

The applicants appealed against the judgment and argued that the mental element ( mens rea ) of the offence was lacking ; the words uttered by them as actors should be regarded as “ artistic events ” .

NORP The prosecutor also appealed against the judgment and argued that the applicants had staged the play at various locations and , as such , they should have been convicted and sentenced separately in respect of each occasion .

On DATE ORG quashed the judgment in so far as it concerned the applicants and the playwright , and upheld the acquittal of the other CARDINAL defendants . ORG , in line with the prosecutor ’s submissions , held that the applicants had staged the play at various locations and , therefore , they should have been convicted and sentenced in respect of each occasion .

Following the decision of ORG , the case was referred back to the trial court and the criminal proceeding against the applicants recommenced . In their observations submitted to the trial court , the applicants argued that the play staged in the CARDINAL locations had been based on the same script . They could not , therefore , be regarded as multiple offences .

On DATE the trial court convicted the applicants once more of the offence under LAW and sentenced them to CARDINAL years’ imprisonment for each time the offence had been committed , i.e. DATE , and the payment of a fine . In assessing the sentence , the trial court considered as aggravating factors “ the time and the locations where the plays were staged , the identities and personalities of the applicants and their social status ” .

The applicants appealed and argued that they were students and young amateur actors who were not well known . The play had been staged in theatres with an audience of CARDINAL persons . Due to the fact that the staging of the play in different locations was regarded both as an aggravating element as well as a separate offence , they were being punished multiple times . The applicants also submitted that , although they had staged the play a total of CARDINAL times , in CARDINAL of the locations they had staged the play twice in DATE , which , they argued , should count as CARDINAL offence only .

On DATE ORG quashed the judgment and held that the staging of the play on DATE on CARDINAL occasion should have been regarded as one offence for the purpose of sentencing .

On CARDINAL DATE the trial court again convicted the applicants of the offence defined in LAW and sentenced each applicant to DATE and QUANTITY months’ imprisonment as well as to the payment of MONEY fine ( MONEY at the time ) . Taking into account the time the applicants had already spent in prison , i.e. DATE and DATE in the case of the second applicant and DATE and DATE in the case of the remaining applicants ( see paragraph CARDINAL above ) , the trial court ordered their release . The playwright was sentenced to DATE imprisonment for having written the script .

Parts of the script that were reproduced in the trial court ’s judgment , included the following :

“ – So , what else did Allah mention in his book , did he mention taking up arms and rebelling against the ORG ?

– If that ORG does not rule by the rules of Allah and instead adopts laws as it wishes , enforces those laws against its citizens in order to force them to obey , resorts to the use of arms when they refuse to obey , then yes , just like the ORG behaves . ”

According to the trial court , the play had given a message to NORP about a perceived need for the public to take up arms against the armed forces of the State . By mentioning the possibility of a military coup , the military had been portrayed as an oppressive group . Members of the armed forces were referred to as non - religious persons or as persons affiliated to other religions . A need by real NORP to take up arms against such members of the armed forces had thus been depicted in the play . This , in the opinion of the trial court , amounted to incitement to hatred and enmity on the basis of a distinction based on class , race and religion , within the meaning of LAW of LAW .

The appeal lodged by the applicants was rejected by ORG on DATE .

A full description of the relevant domestic law may be found in GPE v. GPE , judgment of DATE , Reports of Judgments and Decisions CARDINAL-IV , § § DATE .


Remainder inadmissible;Violation of P1-1;Pecuniary damage - award;Non-pecuniary damage - finding of violation sufficient

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

The applicants were born in DATE and DATE respectively and live in GPE .

The applicants owned a piece of land measuring CARDINAL m² . By order of ORG , published in ORG on DATE , the land was expropriated to build a motorway .

During the expropriation proceedings before the first - instance court , then before ORG of ORG , the parties discussed whether the potential profit from exploiting a quarry located on the land concerned should be taken into account when calculating the amount to be paid in compensation for the expropriation . The applicants argued that they should be paid MONEY ( ORG ) in compensation . Having examined several expert reports , CARDINAL of which was ordered by the first - instance court of its own motion , ORG finally decided , in a judgment of DATE , that the potential profit from the quarry should not be taken into account , and awarded the applicants ORG CARDINAL,CARDINAL.CARDINAL in compensation for the expropriation .

On DATE the applicants lodged application no . CARDINAL/CARDINAL with the ORG , complaining about the lack of compensation regarding the quarry . The application was rejected by a committee on DATE as being out of time .

On DATE the applicants received notice of the court fees payable for the expropriation proceedings . The sum they were expected to pay amounted to ORG .

On DATE the applicants filed a complaint about the fees , alleging in particular that they violated the principle of fair compensation and the right of access to a court . They also pointed out various inaccuracies and miscalculations .

On DATE , acting on information provided by the registry , the ORG court judge acknowledged the mistakes and ordered their rectification . The amount owed was reduced to ORG , leaving the applicants owing the ORG EUR CARDINAL ORG in addition to the full amount of the compensation they had been awarded . The judge dismissed the applicants ' complaint regarding the alleged violations .

The applicants appealed to ORG . In a judgment of CARDINAL DATE , of which they were notified on DATE , ORG dismissed the appeal .

On DATE the applicants lodged a constitutional appeal against that decision , alleging that the interpretation of the relevant provisions of LAW , particularly LAW , was contrary to the principles of fair compensation and the right of access to a court guaranteed in LAW . In their view , court fees should on no account exceed the sum awarded to them in compensation for the expropriation of their property .

In a judgment of CARDINAL DATE ORG dismissed their appeal . First it noted that it could only examine the constitutionality of LAW of LAW , the only provision the courts below had applied . It then went on to hold that the provision concerned was not contrary to LAW ( access to a court ) and CARDINAL § CARDINAL ( fair compensation ) of the LAW . Concerning access to a court , it pointed out that while excessively high court fees could in some circumstances be an obstacle to access to a court , this was not the case in this instance as the applicants had to pay only LAW , a sum it considered reasonable . On the subject of fair compensation , ORG found that compensation for the loss suffered as a result of expropriation was quite unrelated to the matter of court fees , and that there was accordingly no reason why court fees should not exceed the sum awarded in compensation .

On DATE the applicants filed a request to have that judgment rectified , claiming that ORG had made a mistake , in so far as it had considered in its reasoning that the applicants owed ORG CARDINAL when they were in fact expected to pay court fees in the sum of ORG CARDINAL,CARDINAL.CARDINAL .

In a judgment of CARDINAL DATE ORG acknowledged its mistake and the need to rectify the judgment in respect of LAW . It found that ORG CARDINAL,CARDINAL.CARDINAL was a large enough sum to have affected the right of access to a court . It accordingly declared LAW of LAW , as interpreted by the lower courts , contrary to LAW . As regards LAW , however , it held that its earlier decision needed no rectification .

On DATE the applicants , wishing to know the exact sum they owed in court fees , filed a request for clarification of the judgment of DATE .

In a judgment of CARDINAL DATE ORG rejected that request , considering that it was for the lower court to determine the sum to be paid .

In an order of DATE , the ORG court , to which the case had been referred back , decided that the fees should not exceed the compensation awarded by CARDINAL .

On DATE the applicants paid the extra ORG CARDINAL .

Article CARDINAL of the LAW guarantees the right of access to a court . LAW guarantees the right of property and the right to fair compensation in the event of expropriation .

The general rule governing court fees is set forth in Article CARDINAL of LAW , under the terms of which it is in principle for the losing party to pay the court fees , which are indexed to the sum in dispute in the proceedings .

Article CARDINAL § CARDINAL of LAW ( Código das FAC ) , as applicable at the material time , stipulated that court fees owed by a person whose property had been expropriated were to be “ deducted ” ( saem ) from the compensation awarded for the expropriation .

Article CARDINAL of the same code provided for the court , in certain circumstances , to be able to exempt a party from paying all or part of the court fees .