CASE OF PAPAMICHALOPOULOS AND OTHERS v. GREECE

Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Preliminary objection dismissed (Art. 34) Individual applications;(Art. 34) Victim;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Just satisfaction reserved (Article 41 - Just satisfaction)

The applicants , who are all of NORP nationality , are the owners or co - owners of land in the area of GPE , near GPE , GPE . On DATE ORG gave its consent for the construction of a hotel complex on the site . At the applicants’ request , an NORP firm of architects drew up plans .

By a Law of DATE ( anagastikos nomos no . CARDINAL - " Law no . CARDINAL/CARDINAL " ) , which was passed DATE after the dictatorship was established , ORG transferred an area of QUANTITY . m near LOC beach to ORG ( PERSON ) .

CARDINAL of the applicants , who owned part of this land ( QUANTITY . m ) , applied to ORG at ORG ) , requesting him to take interim measures and " restore the original position " .

On DATE ORG made CARDINAL orders granting the applications , as the land in question was not public forest but consisted of agricultural land cultivated by the owners . CARDINAL of the CARDINAL orders , however , was revoked by ORG at ORG on the ground of " lack of urgency " , following an application by ORG .

On DATE the Minister of Agriculture informed ORG headquarters that part of the land transferred was not available for disposal and that it was necessary to take steps to " restore the rightful position " .

Far from restoring the land to its owners , however , the ORG proceeded to construct a naval base and a holiday resort for officers . A royal decree of CARDINAL DATE ( published in ORG of DATE ) designated the entire LOC region as a " naval fortress " .

After DATE of the dictatorship in DATE , PERSON , the father of the applicants PERSON and ORG , commenced proceedings in ORG to establish his title to CARDINAL parcels of land . In a judgment ( no . CARDINAL/CARDINAL ) given on DATE the court held that in DATE the plaintiff had indeed acquired title to QUANTITY . m of land by a notarially recorded deed ; that the land in question was not public forest but consisted of parcels which had been cultivated and occupied bona fide by various individuals successively since DATE ; and that ORG was therefore obliged to return it .

ORG upheld this decision on DATE ( in judgment no . CARDINAL/CARDINAL ) . It considered that the ORG had not transferred ownership of the land in question in DATE since it had no title and the presumption of ownership applied only to forests , not to agricultural land .

An appeal on points of law by ORG was dismissed by ORG ( PERSON ) on DATE ( in judgment no . CARDINAL/CARDINAL ) , on the ground that Mr PERSON ascendants had acquired title to their land by prescription and in accordance with ORG law applicable at the time ( DATE ) .

On DATE Mr PERSON sent a bailiff to serve the above - mentioned judgments on ORG with a view to their enforcement . On DATE , accompanied by a bailiff , he went to the entrance of the naval base and sought enforcement of the court decisions , but the commanding officer of the base refused to admit them on the grounds that he had been ordered not to and that they required authorisation from ORG headquarters , which was refused . An application to ORG at ORG was also unsuccessful .

In DATE PERSON and the other applicants brought CARDINAL actions in ORG to establish their title to the land in issue . The ORG intervened in the proceedings in support of ORG .

In CARDINAL interlocutory decisions of DATE ( CARDINAL . DATE and CARDINAL/CARDINAL ) the court ordered further inquiries into the facts . It also held it necessary to commission several experts to examine the title documents in the applicants’ and ORG possession and file an opinion within DATE on whether the land belonged to the plaintiffs or was part of the public forest transferred by PERSON no . DATE . However , the proceedings remained pending .

On DATE the Minister of Defence informed the applicants that the construction of the naval base prevented return of the land in question , but that proceedings were under way with a view to a grant of other plots of land to replace those occupied by ORG .

On DATE the Minister of Agriculture requested the Prefect of GPE to transfer to the applicants land of equal value situated in that region . He stated that even though the court decisions delivered so far related to only some of the private individuals who had been dispossessed in DATE , future or pending actions brought by other owners would certainly have the same outcome .

Notwithstanding a decree of DATE regulating building development within the " Ramnoudos " archaeological site in the PERSON valley ( in which the disputed land was situated ) , ORG carried on with the construction of a hotel complex within the perimeter of the naval base .

By a joint decision of CARDINAL DATE the Minister for ORG and ORG set up a committee of experts to choose certain of the pieces of land offered in exchange by ORG and value them ; among these was a plot at PERSON in GPE ( see paragraph CARDINAL below ) . The committee expressed its findings in a report of DATE .

In section CARDINAL ( see paragraph CARDINAL below ) of PERSON no . CARDINAL/CARDINAL , published in ORG of DATE , it was expressly acknowledged that private individuals who were claiming title to land occupied by ORG were entitled to apply for other land in exchange , using the procedure laid down in LAW ( see paragraph CARDINAL below ) ; for this purpose it provided for a procedure for verifying title to the land in accordance with LAW of that code .

The explanatory memorandum on the PERSON contained the following :

" [ S]ection [ CARDINAL ] provides for the possibility of settling the case of the properties included in the area ... transferred to ORG under LAW . CARDINAL/CARDINAL .

This is an area of QUANTITY . m. It is claimed by a number of private individuals . Some of these have brought actions in the civil courts and obtained from ORG a final decision in which they are acknowledged to be the owners . Having regard to the fact that the other [ pending ] cases are likely to have the same outcome and that paying compensation would be a solution disadvantageous to the authorities , an enactment must be passed enabling [ the remaining private individuals ] to replace their properties by others , which belong to the ORG and are available , subject to prior verification of the ORG title .

Under this PERSON the applicants applied to ORG ( Epitropi apallotrioseon ) , composed of the President of ORG and civil - service experts . In decision no . DATE the ORG acknowledged their ownership of an area of CARDINAL sq . m. It stated the following :

" ... it appears from the hearings , written submissions , oral statements and documents in the case file that the applicants ... occupied bona fide in continuous and regular fashion from time immemorial until DATE an area of approximately [ QUANTITY . m ] situate at FAC ... ; that the aforesaid area had for a long time been used for agriculture , as shown by several items of evidence ... "

On DATE ORG appealed to ORG against this decision . ORG joined it by intervening in the proceedings on DATE .

In a judgment of CARDINAL DATE ( no . DATE ) ORG declared the appeal inadmissible ; in the court ’s opinion , only the ORG and the parties concerned had standing to appeal against the decision in question , and not third parties such as ORG .

On DATE ORG upheld this decision .

The Minister for Economic Affairs lodged an appeal on points of law , which was declared inadmissible by ORG on DATE ( in judgment no . CARDINAL/CARDINAL ) on the following grounds :

" ... Law no . CARDINAL/CARDINAL gave third parties ... who claim ownership of the tract contained within the larger area transferred to ORG the possibility of applying for the claimed land to be exchanged for another plot of equal value ... . Such exchanges will be effected in accordance with the procedure laid down in DATE , DATE and CARDINAL of Article CARDINAL of LAW , that is to say by a decision of ORG , after administrative proceedings before a tripartite board and in accordance with LAW . ... In order to ensure that these exchanges are effected quickly and simply , the legislature has given interested parties the possibility of using the simple , quick procedure provided for in LAW in order to have their [ title ] acknowledged . In adopting the aforementioned provision of LAW no . CARDINAL/CARDINAL , it did not intend to provide , in accordance with LAW , a solution for the dispute which might arise if ORG claimed against third parties the ownership of the area transferred by PERSON no . DATE . For that purpose ORG will have to use the procedure of ordinary law . This is apparent not only from the wording and the grammatical interpretation of the aforementioned provision ... but also from the purpose that the legislature sought to achieve ...

... In granting the right to have their title ... acknowledged only to the ` private ORG ( natural and legal persons ) that own [ these ] areas of land ... , the legislature did not introduce any unjustified discrimination against ORG and did not deprive it of judicial protection , as it is still open to it , under ordinary - law procedure , to secure recognition of its title , which will not , however , enable it to receive other areas of land as this was not the legislature ’s intention ... "

On DATE ( in judgment no . CARDINAL/CARDINAL ) ORG dismissed , on the same grounds , an appeal on points of law that had been brought by ORG .

On DATE a further decree extended the geographical boundaries of the " naval fortress " .

Pursuant to section CARDINAL of Law no . CARDINAL/CARDINAL , the Prefect of LOC informed the Minister of Agriculture and the applicants on DATE that some of the parcels of land offered in exchange were subject to special rules of ownership , while others had already been developed , and others again were protected by the legislation on forests .

In DATE the Minister of Agriculture suggested to the applicants that they should accept land in the prefecture of GPE , QUANTITY from LOC ; it asked the Prefect of PERSON to look for land for this purpose . In view of the authorities’ silence , CARDINAL Members of ORG in DATE put questions in ORG to ORG asking what action had been taken in the matter . In a letter of CARDINAL DATE ORG admitted that it had been unable to find suitable land .

On DATE the applicants had brought CARDINAL actions in ORG against ORG and ORG , represented by ORG , for damages for the loss of use of their property . In CARDINAL judgments of DATE the court adjourned the cases on the ground that verification of the ORG title to the land had not been completed except in the case of PERSON .

Earlier , ORG had asked ORG to produce a valuation of the property in issue . The designated expert obtained from the third applicant , PERSON , the opinion of all the owners in question on the documents which ORG had communicated to him . On DATE PERSON asked ORG for information about the nature of the documents made available to the expert . On DATE the ORG refused to provide any on the ground that the matter was of the nature of an internal procedure and this ruled out any intervention by third parties .

Several other actions for damages brought over a period up to DATE were adjourned by ORG or else have not yet been heard .

On DATE ORG wrote to ORG ( PERSON tou GPE ) asking them to find land which might be used for the proposed exchange ; it also drew their attention to the ORG ’s obligation to pay the applicants exorbitant sums of money if the exchange did not take place . In its answer ORG again stated that there was no land available .

By decision no . CARDINAL of the ORG , published in ORG of CARDINAL DATE , the administrative board of ORG had transferred to ORG ownership of CARDINAL sq . m of land belonging to the disused NORP military camp at GPE , GPE , in the vicinity of the land in issue ( see paragraph CARDINAL above ) . This land , which was intended for sale , was included in the land register and given the name " PERSON estate " . On CARDINAL DATE ORG placed advertisements in the press .

On DATE the applicants’ lawyer wrote to ORG , asking whether it would be possible to allocate the new estate to his clients ; on DATE he sent an identical letter to all the relevant ministers , the President of ORG and ORG . The applicants have not yet received any response , apart from a copy of a letter from ORG department responsible for public property to ORG asking the latter to take action under its powers and notify the writer and the other public authorities dealing with the case .

Under LAW of DATE , which applied at the time the PERSON in issue was passed ,

" CARDINAL . No one shall be deprived of his property unless it is for the public benefit , which must be duly proved , when and as specified by law and only after full compensation . Compensation shall in all cases be determined by the civil courts . In urgent cases it may also be determined by the courts on a provisional basis after the beneficiary has been heard or summoned , and the court may , at its discretion , require the latter to provide commensurate security , as provided by law . Until payment of the final or provisional compensation determined by the court , all rights of the owner shall be maintained intact and occupation of the property shall not be allowed .

Special status shall govern requisitioning to meet the needs of the armed forces in the event of war or mobilisation or to meet an immediate social need that is likely to jeopardise public order or public health . "

" CARDINAL . Property shall be protected by the ORG ; rights deriving therefrom , however , may not be exercised contrary to the public interest .

No one may be deprived of his property unless it is for the public benefit , which must be duly proved , when and as specified by law and only after full compensation corresponding to the value of the expropriated property at the time of the court hearing on the provisional determination of compensation . In cases in which an application is made for immediate final determination of compensation , regard shall be had to the value at the time of the court hearing of the application .

Any change in the value of expropriated property occurring after publication of the expropriation decision and resulting exclusively from it shall not be taken into account .

Compensation shall in all cases be determined by the civil courts . It may also be determined by the courts on a provisional basis after the beneficiary has been heard or summoned , and the court may , at its discretion , require the latter to provide commensurate security before receiving the compensation , as provided by law .

The compensation awarded must be paid within DATE at the latest from the date of publication of the decision provisionally determining the compensation payable ; in the case of applications for immediate final determination of compensation , this must be paid within DATE at the latest from the date of publication of the court ruling , otherwise the expropriation shall automatically be revoked .

The compensation as such shall be exempt from all taxes , deductions and rates .

The cases in which a compulsory indemnity shall be payable to the beneficiaries for loss of income from expropriated property until the time of payment of the compensation shall be laid down by law .

Where works of public benefit or of general importance to the economy of the country are being carried out , a law may allow the expropriation by the ORG of areas greater than that of the land needed for the execution of the works . The same law shall lay down the conditions and terms of such expropriation , as well as the arrangements for the disposal or use for public or public - utility purposes in general of expropriated areas not required for the execution of the proposed works .

Under section CARDINAL of Law no . DATE ,

" Land of which third parties have claimed ownership and which forms part of the area at FAC in GPE which was transferred to ORG under PERSON no . CARDINAL/CARDINAL ... may , on application by the persons concerned , be exchanged for land of equal value , dedicated for public use ( koinokhristes ) or available under the legislation on land use , in accordance with the procedure provided for in paragraphs CARDINAL , DATE and CARDINAL of Article CARDINAL of LAW .

In order to have their ownership of the said land acknowledged , the persons concerned may follow the procedure laid down in LAW ... "

The relevant paragraphs of ORG and CARDINAL of the Rural Code provide :

" Acknowledgment of title

Where an application is made to it by the parties concerned , the appropriate ORG shall determine title to the expropriated land in accordance with Law no . CARDINAL and Article CARDINAL of the present code .

Within not DATE from the notification of the decision , the ORG and the parties concerned may challenge the decision in ORG that has jurisdiction , which shall make a final ruling in accordance with the procedure laid down in the following Articles .

Against judgments given by the courts of first instance under LAW before the present PERSON comes into force an appeal shall lie within not more than one year from the date of commencement of this PERSON to ORG that has jurisdiction ...

Persons acknowledged as owners of expropriated land shall be invited by the Minister of Agriculture ... to lodge a notarially recorded certificate in which they declare that they accept the exchange of land effected under the preceding paragraph and waive any claim for compensation .

The aforementioned allocation of land belonging to the ORG , to a municipality or to a cooperative shall take effect by decision of the Minister of Agriculture in lieu of a title deed , which shall be entered in the land register .


David Thór Björgvinsson;Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano

NORP The applicant , PERSON , is a dual NORP and GPE national , who was born in DATE and lives in GPE . Her application was lodged on DATE . She was represented before the ORG by Mr M. GPE , a barrister practising in GPE .

ORG ( “ the Government ” ) were represented successively by their Agents , PERSON and PERSON of ORG .

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

The case relates to a domestic civil claim brought by the applicant in respect of an incident that occurred in DATE , in which the applicant claims that she was unlawfully detained and assaulted by officers of ORG ( “ the defendant ” ) . In DATE the applicant was granted legal aid to pursue a claim for damages in respect of these allegations . She was initially represented by ORG ( “ ORG ” ) .

The applicant ’s claim was issued at ORG ( “ the CLCC ” ) on DATE . Her particulars of claim ( the document setting out the basis of her claim ) were filed with the CLCC and served the defendant on DATE . On DATE the CLCC recorded that the parties had agreed an extension of time for service of the defendant ’s defence to the claim to DATE . On DATE the defence was served on the applicant , although it is not clear whether this defence was ever filed with the court . On DATE a telephone call was received by the CLCC from the applicant ’s solicitors advising that they would fax the defence to the court . There is , however , no record that the defence was received or that the solicitors followed up their telephone conversation .

The parties agreed their own directions regarding the progress of the case ( that is , the procedural timetable for the case ) and , consequently , documents were disclosed and witness statements exchanged . In the meantime nothing was heard from the court . In DATE , the applicant withdrew instructions from ORG and , in DATE , instructed ORG ( “ FAC ) . Transfer of legal aid funding from ORG to ORG was confirmed on DATE .

On DATE the applicant ’s solicitors wrote to the CLCC seeking to progress the case . On receipt of the letter the CLCC wrote to the defendant on DATE requesting that a copy of the defence be filed with the court , which the defendant did on DATE . On DATE an allocation questionnaire was sent to the parties . ( An allocation questionnaire is a document the parties must complete and return to the court so that the court can give appropriate directions as to where , when and how the case should be heard ) . The applicant filed her questionnaire on DATE and a case management conference ( a conference between the court and the parties to agree procedural directions and identify the issues in the case : “ a ORG ” ) was listed for DATE . At the ORG the applicant was refused permission to rely on her own expert medical evidence , directions were given for the instruction of a single joint expert , and a trial window was set for DATE and DATE . The CLCC subsequently listed the case for trial on DATE .

On DATE the applicant made an application to amend her claim and an application to vacate ( that is , adjourn ) the trial date set for CARDINAL DATE . In DATE the applicant withdrew instructions from ORG . In the meantime , the CLCC duly listed her applications for hearing on DATE and CARDINAL DATE respectively but the applicant , stating that she would not be able to attend the hearing of her application as a litigant in person , did not attend on DATE and sought an adjournment ( with which the defendant agreed ) of the hearing set for CARDINAL DATE .

On DATE the applicant applied to have her application of CARDINAL DATE re - considered and/or for a stay of the order of CARDINAL DATE . On DATE she also applied for the trial date of CARDINAL July CARDINAL to be vacated on the basis that she had to instruct new solicitors who required time to prepare her case and on the basis that she was not medically fit to represent herself . This application was listed for CARDINAL DATE . At some time in DATE the applicant instructed new solicitors , PERSON , who applied for a transfer of the applicant ’s legal aid certificate . On DATE the applicant applied to adjourn the hearing listed for CARDINAL DATE on the ground that funding had not yet been transferred to PERSON and that she was unable to represent herself . On DATE , with neither party in attendance but with the defendant ’s agreement , the CLCC ordered that the application be adjourned generally with permission to apply to restore . The applicant found the order confusing and thought that it meant that the trial date had been vacated .

On DATE the applicant made a further application to vacate the trial date to allow her new solicitors time to prepare the case . There is no record of a response to this application . The applicant did not attend the trial on DATE . She stated that this was due to reasons of ill - health . The trial judge ordered the applicant to attend the following day . The applicant claimed that she did not receive notice of this order , although it appears that the trial judge was satisfied that it had been communicated to her by the court clerk . The applicant did not attend court on DATE and her claim was dismissed .

In DATE the applicant withdrew instructions from PERSON .

On DATE the applicant applied to have her claim reinstated , arguing that the trial should have been adjourned and that she had good reasons for not attending . She failed to enclose with her application the prescribed application fee , although the applicant , in her submissions to this ORG , maintains that this was because she believed she was entitled to an exemption from paying the fee . Therefore , on DATE , the CLCC returned the application to the applicant notifying her of her failure to pay the fee . The applicant paid the fee on CARDINAL DATE . The application was then listed and heard on DATE . The applicant was represented at the hearing of this application by counsel on a direct access basis ( that is , a barrister directly instructed by a lay person without the need for that person to first instruct a solicitor ) . The judge held that the applicant had good reason for failing to attend the trial and reinstated her claim . A ORG was listed for DATE but on CARDINAL DATE the applicant applied for an adjournment . The defendant agreed to this request . At a hearing before the judge – attended only by the applicant – the hearing was adjourned until DATE .

In or around DATE the applicant states that she re - instructed ORG . It appears that ORG applied for a new legal aid certificate but were refused . The applicant stated that her application was “ bungled ” and that ORG ( “ the ORG ” ) “ lost or mysteriously returned ” her papers . CARDINAL letters were sent by the ORG to the applicant . The first , dated DATE , stated that “ you have provided insufficient information / documentation to enable the application to be fully considered ... you may apply for review by DATE ” . The second , dated DATE , stated that the “ file has been closed ... because the application was rejected DATE as it was not properly completed and we have not received the correctly completed application ... If public funding is still required , a fresh application must be made ” . ORG offered to represent the applicant on a private client basis . However , the applicant stated that she was unable to afford their fees .

On DATE the ORG was again adjourned , at the request of CARDINAL or both of the parties for DATE . On DATE a ORG was held at which no order was made as to medical evidence and a trial window was set for DATE and DATE . On DATE the case was listed for trial on DATE . At the defendant ’s request , the trial was re - listed for DATE .

The applicant claimed not to have been informed of this new trial date until DATE when she applied to have it vacated on grounds that , although she was available , her solicitor had gone on holiday without notifying her and that she could not represent herself on health grounds . The application to vacate was heard and rejected on DATE . The defendants relied at this hearing on a letter from ORG , dated DATE , which stated that the file handler had gone away for DATE between DATE and DATE and that , in any event , ORG were no longer instructed by the applicant .

The applicant instructed counsel on a direct access basis to renew on DATE of the trial her application to vacate . Counsel was not instructed in relation to the trial itself for which he had no time to prepare . The applicant did not attend the trial on DATE , again for health reasons . The judge refused the renewed application to vacate and dismissed the applicant ’s claim in its entirety . He ordered that any application to set aside his judgment be made without notice in the first instance .

On DATE the applicant applied to have the judgment set aside . The applicant did not pay the prescribed fee until DATE . On DATE the applicant telephoned the CLCC to ask for her application to be listed after DATE . The hearing was listed and took place on a without notice basis on DATE when she was granted leave to apply on notice to the defendant .

The hearing was listed for DATE . On DATE the defendant requested that the hearing be relisted as counsel was unavailable for the original date . On DATE the ORG agreed and requested that the parties informed the court of the dates which they wished to avoid . The defendant did so by letter dated DATE . The applicant did not and instead lodged a complaint over the decision to relist the hearing . On DATE she applied to have the hearing date of CARDINAL DATE reinstated . This application was dismissed by the CLCC on DATE .

On DATE the applicant requested the CLCC not to relist the hearing until further notice . She then requested by letter dated DATE that the CLCC list the hearing in DATE . The CLCC sought dates to avoid from the parties and , following receipt of correspondence , listed the hearing for DATE . The defendant subsequently notified the CLCC that it was unable to attend on that date and , following further correspondence , the court required the attendance of both parties on DATE to set a date , emphasising that once the hearing had been fixed it would not be relisted again . The case was then relisted for the first agreed date when both parties could attend , DATE .

The application to set aside the judgment of CARDINAL DATE dismissing the applicant ’s claim was heard on that date . The applicant was again represented by counsel on a direct access basis . After reciting the procedural history of the case and the reasons advanced by the applicant for her absence at DATE trial date , the judge hearing the application concluded :

“ Taking all those matters into consideration , both the history and the discrepancies which are evident in the versions given by the [ applicant ] and the documentation [ and ] the similarity of her reliance upon the same excuses for not attending in the past strongly suggest to me that [ the applicant ] can not come anywhere near satisfying this court that there were good reasons for not attending and that those reasons were genuinely honest . I am fully satisfied that they were not in relation to the trial fixed for DATE ” .

The applicant maintains that the CLCC had lost the case file and the applicant ’s bundle , and that the judge should not have proceeded without them .

On DATE the applicant filed an appeal notice with ORG out of time . In that notice she claimed that an earlier notice of appeal had been filed in time on an old form , although no evidence of an application on this old form was provided . The applicant attributed the delay in appealing to those of the CLCC in obtaining the judge ’s signature on the relevant order ( DATE ) and in providing a transcript of his judgment ( DATE ) . On DATE the High Court refused permission to appeal , holding that no reasons had been given to explain the delay in issuing the appeal notice and that , in any event , the proposed appeal had no prospects of success .


Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of P1-1;Remainder inadmissible;Pecuniary and non-pecuniary damage - award

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

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

The applicant is the owner of a maisonette in GPE , GPE . He inherited CARDINAL undivided CARDINAL - share of the LOC from his father , who died in DATE and the other undivided CARDINAL - share from his mother , who died in DATE .

On DATE the applicant ’s father had entered into a temporary emphyteusis contract ( a contract granting a tenement [ house , flat or other type of real property ] for a stated yearly rent or ground rent to be paid in money or in kind ) with PERSON The parties had agreed that PERSON was to pay a DATE amount of MONEY ( MTL – approximately MONEY ( ORG ) ) and was to return the LOC with vacant possession to the owner after DATE . They further agreed that in respect of maintenance , the grantor was responsible only for “ extraordinary expenses in connection with the roofs and ceiling ... unless caused by the negligence of the acquirer ” .

In accordance with LAW , the LOC reverted ipso iure to the applicant on DATE .

In DATE under LAW ( see paragraph CARDINAL below ) amending LAW of LAW , PERSON and PERSON , as holders of the utile dominium at the time and as NORP citizens occupying the LOC as their ordinary residence , were granted the right to retain possession of the LOC under a lease , without the consent of the owner . The law did not apply to temporary emphyteusis contracts entered into after DATE .

By a letter of DATE , DATE in which the temporary emphyteusis contract lapsed , the applicant informed PERSON and PERSON that he would not renew the contract of emphyteusis and that they should vacate the LOC .

By a letter dated DATE , PERSON and PERSON informed the applicant that they were not seeking renewal of the contract but that they were availing themselves of the right granted to them under LAW of DATE whereby they could retain the property under a lease .

After DATE , PERSON and PERSON remained in possession of the LOC under a lease , bringing about a completely new legal relationship between them and the applicant . As a result the applicant claimed that he had been unilaterally deprived of his property without being able to have recourse to a court for a determination as to whether it was necessary for PERSON and PERSON to retain the property or to establish just and fair lease conditions . The applicant also submitted that PERSON and PERSON also owned other property , whilst he could not make use of his property for the benefit of his daughter , who was getting married .

On DATE the applicant instituted proceedings before ORG ( the “ RRB ” ) in order to have a fair amount of rent fixed . On DATE these proceedings were adjourned sine die in view of the constitutional proceedings instituted by the applicant , and they have not been resumed since . According to the applicant the proceedings were awaiting the outcome of the constitutional proceedings and would be resumed according to law , as stated in TIME hearing before ORG . According to the Government , the applicant abandoned these proceedings , which were then declared to have been vacated on DATE . The maximum compensation the applicant could be offered by the ORG in accordance with the law ( see paragraph CARDINAL below ) was MTL CARDINAL ( approximately ORG CARDINAL ) per year .

According to an architect ’s report dated DATE , the market value of the vacant premises amounted to ORG CARDINAL,CARDINAL ( approximately ORG MONEY ) , while the rental value was ORG CARDINAL ( approximately EUR CARDINAL ) per month .

On an unspecified date the applicant instituted constitutional redress proceedings before ORG ( FAC ) . He complained that the lease imposed on him , as owner of the premises , which had been granted in emphyteusis at the time of the introduction of the new law , subject to inadequate compensation , infringed his rights under LAW No . CARDINAL to the LAW and was discriminatory and contrary to LAW , since other LOC , particularly those rented after DATE , were not subject to the same conditions .

By a judgment of DATE ORG rejected the applicant ’s claims . It held that the case was not CARDINAL of deprivation of property but rather of control of use . Although it had been claimed that the rent received by the applicant was minimal , the legislator had put in place provisions to deal with this ; in particular , the rent could be adjusted DATE in line with the inflation index , subject to capping at double the original amount . Consequently , there had been no breach of the applicant ’s property rights . In respect of LAW , it noted that the applicant had not invoked any basis for the discrimination and that the applicant and persons who rented out LOC after DATE were not persons in a similar situation and that consequently , no discrimination could have arisen .

On DATE the applicant appealed .

By a judgment of CARDINAL DATE ORG rejected the applicant ’s claims . It held that the law at issue restricted the use of property ; thus , the interference suffered by the applicant constituted control of the use of property , which had been legitimate and in the general interest , falling within the ORG ’s wide margin of appreciation . In view of the housing situation in GPE , the new law was meant to protect persons occupying LOC as their ordinary residence for a certain period of time from being evicted . The law also allowed for the rent to be reviewed as mentioned by the first - instance court . ORG found that the sum of ORG CARDINAL ( approximately ORG CARDINAL ) per year was certainly low and that it would be preferable for the executive to revise the laws determining such compensation , a task which fell outside the competence of the courts . However , the sum was higher than that payable under other rent laws in force in the country . Hence , having considered all the circumstances , it held that , although the amount of rent was close to the demarcation line below which it would qualify as unjust compensation , it did not result in a violation of the applicant ’s property rights . In respect of LAW , ORG upheld the first - instance judgment , ruling that no comparison could be made in the absence of an analogous situation .

According to LAW , LAW of LAW , emphyteusis is defined as :

“ a contract whereby CARDINAL of the contracting parties grants to the other , in perpetuity or for a time , a tenement for a stated yearly rent or ground - rent which the latter binds himself to pay to the former , either in money or in kind , as an acknowledgement of the tenure . ”

Other articles of the Civil Code related to this form of contract , in so far as relevant , read as follows :

Article CARDINAL ( CARDINAL )

“ A temporary emphyteusis ceases on the expiration of the time expressly agreed upon , and the reversion , in favour of the dominus , of the tenement together with the improvements takes place , ipso jure . ”

Article CARDINAL

The emphyteuta shall keep , and in due time restore the tenement in a good state .

Article CARDINAL

The emphyteuta is bound to carry out any obligation imposed by law on the owners of buildings or lands :

Provided that if for the carrying out of any such obligation a considerable expense is required , and the emphyteusis is for a time , the court may , upon the demand of the emphyteuta , compel the dominus

Section CARDINAL of Act XXIII of DATE amending LAW of LAW ( ORG ) Ordinance ) , in so far as relevant , reads as follows :

“ ( CARDINAL ) Notwithstanding anything contained in LAW or in any other enactment the following provisions of this section , and of section FAC shall have effect with respect to all contracts of temporary emphyteusis made at any time .

( CARDINAL ) Where a dwelling - house has been granted on temporary DATE

( a ) for a period not exceeding thirty years , if the contract was made before CARDINAL DATE , or

( b ) for any period , if the contract is made on or after the date aforesaid , and on the expiration of any such emphyteusis the emphyteuta is a citizen of GPE and occupies the house as his ordinary residence , the emphyteuta shall be entitled to continue in occupation of the house under a lease from the directus dominus -

( i ) at a rent equal to the ground - rent payable immediately before the expiration of the emphyteusis increased , at the beginning of the lease of the house by virtue of this article , and after the lapse of DATE thereafter during the continuance of the lease in favour of the same tenant , by so much of the ground - rent payable immediately before such commencement or the commencement of each subsequent DATE , being an amount not exceeding such ground - rent , as represents in proportion to such ground - rent the increase in inflation since the time the ground - rent to be increased was last established ; and

( ii ) under such other conditions as may be agreed between them , or failing agreement , as the ORG may deem appropriate .

Section CARDINAL of the LAW defines the notion of “ tenant ” as follows :

( a ) the widow or widower of a tenant provided husband and wife were not , at the time of the death of the tenant , either legally or de facto separated ;

( b ) where the tenant leaves no widow or widower such members of the tenant ’s family as were residing with him or her at the time of his or her death ; and

( c ) any sub - tenant in relation to the tenant :

Provided that for the purposes of sections CARDINAL and CARDINAL , “ tenant ” shall not include any of the persons included under paragraph ( b ) or ( c ) of this definition but shall include , instead , the children , and any brother or sister , of the tenant who are not married and who reside with the tenant at the time of his or her death and any ascendant of the tenant who so resides with the tenant .

According to section CARDINAL of the PERSON of Urban Property GPE , LAW of LAW , where the lessor desires to resume possession of the LOC on termination of the lease he shall apply to ORG for permission to do so . According to section CARDINAL of the Ordinance , this permission is granted , inter alia :

“ ... if the lessor requires the premises ( other than a shop ) for his own occupation or for that of any of his ascendants or descendants , whether by consanguinity or affinity , or of a brother or sister , and ( except as otherwise provided in this paragraph of this section ) the ORG is satisfied that alternative accommodation is available which is reasonably suitable to the means of the tenant and his family as regards extent , character , and proximity to place of work ( if any ) :

According to section CARDINAL(CARDINAL ) of ORG ) Ordinance :

“ Where on the expiration of an emphyteusis ... the dwelling - house is subject to a lease , the provisions of the PERSON of ORG ) Ordinance , shall not apply in respect of such lease :

Provided that where the tenant under the said lease is a citizen of GPE and occupies the house as his ordinary residence he shall , on the termination of the lease , be entitled to continue in occupation of the house under a new lease from the directus dominus at the same rent and under the same conditions .... ”

According to section CARDINAL(CARDINAL ) of ORG ) Ordinance as amended in DATE :

“ The provisions of section CARDINAL shall not apply to any contract of temporary emphyteusis entered into on or after DATE . ”


No violation of P1-3 in respect of Mr Krasnov;Violation of P1-3 in respect of Mr Skuratov;No separate issue under Art. 14;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

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

On DATE the general elections to ORG of GPE , the lower chamber of the NORP bicameral legislature , were held to elect CARDINAL members for a term of DATE . CARDINAL of the members ( CARDINAL seats ) were returned by a majority vote from single - mandate district constituencies . The other CARDINAL seats were allocated on a proportional basis to candidates on federal rolls submitted by political parties or electoral blocs that gained MONEY of the valid votes cast in a single federal constituency ballot .

On DATE Mr PERSON was elected head of the district council of the LOC district of GPE ( глава районной управы Пресненского района г. GPE ) .

On DATE the GPE City Duma enacted Law no . CARDINAL “ on the organisation of local self - government in the city of GPE ” . Section CARDINAL of that law determined that the bodies of local self - government in GPE would include a municipal assembly ( муниципальное собрание ) as the representative body and a municipality ( муниципалитет ) as the executive body . Pursuant to transitional provisions of the law ( section CARDINAL § CARDINAL ) , heads of district councils who had been appointed or elected to their position before the law was enacted were to remain in power until the appropriate body had been formed , and its officials appointed or elected , in accordance with the law .

On DATE the municipal assembly of the LOC district passed a decision to rename the district council of the LOC district of GPE as the “ LOC ” municipality ( муниципальное учреждение – муниципалитет « Пресненский GPE ) . On DATE the assembly adopted the regulation on the “ LOC municipality and appointed PERSON as its director .

On DATE the director of the “ LOC ” municipality ordered the dismissal of the first applicant on the ground that he had not been re - elected to his position .

On DATE the first applicant submitted his self - nomination application , for the elections to ORG , to ORG ) of central single - mandate constituency no . CARDINAL ( in GPE ) . He indicated that he was employed as “ the head of the district council of the LOC district of GPE ” .

On DATE ORG registered the first applicant as a candidate for election .

On DATE ORG examined materials concerning verification of the information submitted by the first applicant and decided to apply to ORG with a request for the annulment of its own decision of DATE in the light of newly discovered circumstances .

On DATE ORG granted the ORG 's request and annulled the first applicant 's registration as a candidate for the PERSON elections . It established that the first applicant had submitted untrue information about his employment as head of the district council of the LOC district of GPE .

On DATE ORG of GPE dismissed the first applicant 's appeal against the judgment of DATE , finding as follows :

“ The [ first - instance ] court correctly applied the substantive law ... [ I]t determined that , once it had been established that the information submitted by a candidate about himself , including the place of his employment , was untrue and if such circumstance became known after the registration , a court ... could annul the decision on registration .

Having examined the evidence obtained by ORG after the registration of Mr PERSON , the court established that on DATE PERSON PERSON had been elected as head of the LOC district council and that on the basis of a decision ... of CARDINAL DATE ... the district council was renamed as the ' LOC ' municipality and Mr [ PERSON ? ] was appointed its director , whereas Mr PERSON was dismissed ... because he had not been re - elected ... It follows that at the time of self - nomination Mr PERSON was not the head of the district council of the LOC district of GPE .

The arguments in the appeal to the effect that the re - organisation of the district council had been carried out in flagrant breach of the law and that Mr PERSON 's dismissal had been unlawful can not be the grounds for quashing of the judgment and for declaring Mr PERSON 's registration valid , as the examination of these issues falls outside the scope of the present proceedings . Neither the re - organisation of the district council nor Mr PERSON 's dismissal were ... appealed against or annulled .

Mr PERSON 's argument that his continued employment as head of the district council is confirmed by the entry in his employment record , has been examined and rejected by the court . It follows from the case - file that on DATE a letter was sent to Mr PERSON 's address whereby he was invited to take cognisance of the dismissal order . The claimant did not make use of his procedural right to prove the circumstances on which his claims were based ... For instance , he did not produce a certificate from the human resources department about his position at the moment of self - nomination or any orders ( regulations ) that he may have adopted after DATE as head of the district council , or any other proof of his employment in that period . ”

On DATE the second applicant submitted the documents concerning his nomination by ORG of GPE ( “ CPRF ” ) for the elections to ORG , to ORG of the Buryatskiy single - mandate constituency no . CARDINAL . According to the acknowledgement - of - receipt coupon signed by the secretary of the Commission , the second applicant enclosed an application form , copies of his passport , diplomas and employment record ( see paragraph CARDINAL below ) , tax and property declarations and a copy of a certificate attesting to the membership status of ORG candidates for election to ORG , signed by the Chairman of ORG of ORG and addressed to ORG ( ORG ) ( see paragraph CARDINAL below ) .

On DATE ORG refused registration of the second applicant , invoking the following CARDINAL grounds :

“ In the application written by the candidate Skuratov himself , his position is indicated as ' acting head of the department of constitutional , administrative and international law of ORG . However , according to the entries in the candidate 's employment record , his appointment as acting head of the department ... occurred at the same time as his transfer to the position of professor in the same department ... In fact , Mr Skuratov simultaneously performs the duties of acting head of the department and those of a professor of [ that ] department , which does not correspond to the information that he provided about his employment .

Having indicated his membership of ORG of GPE , the candidate ... did not provide a document showing his membership of the ORG and his status within the party addressed to ORG and endorsed by the standing management of the party . Instead he submitted a copy of a certificate concerning membership of candidates for ORG elections and their status within the party addressed to ORG ... ”

The third ground for the refusal was that the copies of the second applicant 's diplomas had been certified by a non - governmental organisation rather than by the competent authority .

On DATE the second applicant complained to ORG .

On DATE ORG determined that ORG had no solid grounds to consider that the second applicant had submitted untrue information . The ORG requested ORG to reconsider the second applicant 's registration immediately .

On DATE ORG issued a new decision refusing the second applicant 's registration . It modified the first CARDINAL grounds for refusal and added a new CARDINAL . As to the second applicant 's employment , it stated that , according to a certificate of CARDINAL DATE signed by the pro - rector of ORG and enclosed with the second applicant 's complaint to the ORG , Mr Skuratov was a professor in the department . Since a copy of that certificate had not been made available to ORG , the second applicant was considered to be in breach of electoral law in that he had failed to inform it of a change in his employment . As to the second applicant 's membership in the ORG , the ORG noted that he had been in possession of an appropriate document and had enclosed it with his complaint to the ORG , but he had only done so on DATE , that is after the expiry of the registration period on DATE . As a new ground for refusal , the ORG found that the second applicant had printed certain campaign materials which had not been paid for from his election fund .

The second applicant complained once again to ORG . On DATE it rejected his complaint . It determined that the second applicant had omitted to state that he had also been a professor in the university and that a document showing his membership in the ORG had been incorrectly addressed .

The second applicant contested these decisions before a court . On DATE ORG dismissed his claim , upholding the first CARDINAL grounds for refusal relied upon by ORG . It found that the second applicant had failed to inform that Commission of his appointment to the position of professor and to submit an appropriate document confirming his party membership .

On DATE ORG of GPE upheld , on the second applicant 's appeal , the judgment of DATE . It found as follows :

“ It has been established that in the application form ... of DATE the candidate ... Skuratov indicated his position as acting head of the department ... However , it transpires from a copy of ORG 's employment record ... that he was appointed acting head of the department ... by the order ... of CARDINAL DATE . Pursuant to the order ... of CARDINAL May CARDINAL Skuratov had been elected for DATE as a professor of the department of constitutional law ... and , by an order ... of CARDINAL DATE , he was transferred to the position of professor of the department of constitutional , administrative and international law . Skuratov failed to submit information ... concerning his transfer to the position of professor of the department of constitutional , administrative and international law .

The court can not agree with his argument that he had no intention of misleading the election commission ... because he did not see any substantial discrepancy in the information submitted . The [ first - instance ] court correctly determined that he should have indicated , as his current position , that of professor ... Because it is precisely that position which defines , in the spirit of the labour law , the substance of the employment contract between [ Skuratov ] and the educational institution , which corresponds to its organisation chart and which determines the nature of his professional duties ... At the same time , the fact of acting in another position may only be of a temporary nature , that is until the person has been approved in that position or has been reassigned to his old one ...

ORG also considers that , as the right of a candidate to indicate his party membership and status in his application form carries a corresponding obligation to submit a document confirming that information ... officially certified by the standing governing body of the political party , such document can not be replaced by the list of that party 's candidates in single - mandate constituencies signed and sealed by the Chairman of the party 's central committee and addressed to ORG ...

Pursuant to section CARDINAL § CARDINAL(CARDINAL ) of LAW , a failure to submit documents required for registration of a candidate under that law is a ground to refuse registration of that candidate ... ”

On DATE ORG of GPE submitted its federal roll of candidates to ORG elections . On DATE the roll was registered by ORG . The second applicant was candidate no . CARDINAL in the LOC regional group .

On DATE PERSON , Chairman of the general council of the electoral bloc “ Russian Pensioners ' Party and ORG ” , made an application to ORG of GPE , seeking exclusion of the second applicant from the federal roll of ORG . Referring to the decisions of ORG of the Buryatskiy district , he claimed that the submission of untrue information by the second applicant had infringed the rights of other political parties and electoral blocs standing in the elections , including his bloc .

In its observations of DATE , ORG objected to the granting of the application . In its view , the claimants had failed to show how the registration of the second applicant had impaired their rights . It submitted that at the time of registration of the federal roll , the ORG had had no doubts as to the accuracy and authenticity of the information submitted by the ORG about its nominees and that the circumstances invoked by the claimants could not be a ground for curtailing the second applicant 's right to stand for election .

On DATE ORG of GPE granted the application by PERSON , finding that the personal information submitted by the second applicant had been untrue because the position of “ acting head of a department ” was not among those listed in FAC and in the ORG - graduate LAW . Both the second applicant and the ORG appealed .

On DATE ORG of ORG upheld the judgment of DATE , giving the following reasons :

“ Having indicated in his application form ... that his position was acting head of the department ... while he permanently held the position of professor in that department , Mr Skuratov thereby submitted inaccurate personal information , which was the ground ... to annul his registration ... [ T]he first - instance court was also justified in referring to the fact that neither the Labour Code nor the Graduate and Post - graduate LAW provided that the office of acting head of a department was a permanent one ...

As ORG correctly determined in its judgment , the right to apply to a court with an application for annulment of a candidate 's registration ... is vested ... in political parties and electoral blocs ... ( section CARDINAL § CARDINAL of LAW , LAW ) . As to the specific electoral rights and interests of the claimant ( who had also submitted and registered a federal roll of candidates to ORG ) , in the instant case they are affected by the inclusion of the candidate Skuratov in the federal roll of candidates of the ORG because that candidate had not complied with the formal requirements that applied in an equal measure to all candidates , political parties and electoral blocs and made possible the exercise of the right to stand for election . Such interests of the claimant are envisaged in sections CARDINAL and CARDINAL of LAW , according to which members of ORG of GPE are elected by citizens of GPE in general , equal and direct elections ; political parties and electoral blocs stand for election to the State PERSON members on equal grounds in accordance with the procedure established by the present federal law ... ” ( original emphasis )

The second applicant submitted a copy of his employment record ( трудовая книжка ) and a copy of ORG certificate .

The relevant entries in his employment record read as follows :

“ CARDINAL . DATE . Started fulfilling duties of Prosecutor General of GPE ...

DATE . Discharged from the prosecution bodies of his own initiative ...

DATE . Appointed acting head of the department of constitutional and administrative law , order no . CARDINAL-l of DATE .

CARDINAL/CARDINAL/CARDINAL . Transferred to the position of professor of constitutional and administrative law , order no . CARDINAL of DATE .

CARDINAL/CARDINAL/CARDINAL . Transferred to the position of professor of constitutional , administrative and international law , order no . DATE .

CARDINAL/CARDINAL/CARDINAL . Dismissed from the position of professor of constitutional and administrative law , order no . QUANTITY DATE .

CARDINAL/CARDINAL/CARDINAL . Appointed acting head of the department of constitutional , administrative and international law , order no . DATE . ”

The relevant parts of the certificate printed on the letterhead of ORG of GPE read as follows :

“ To ORG of GPE :

Certificate concerning membership of candidates to ORG ... standing for election in single - mandate constituencies ... in the political party ' ORG of ORG and their status in the party .

GPE , district no . DATE Skuratov PERSON – CPRF member .

Chairman of the [ ORG ] of the CPRF [ signature , seal ] PERSON ”

LAW Federal Law “ On election of members of ORG of the GPE ” , no.CARDINAL-FZ of DATE , as amended on DATE ) provides as follows .

Pursuant to section LANGUAGE , a candidate may not be registered if he or she submitted untrue information in his or her application form . According to section CARDINAL § CARDINAL ( CARDINAL ) , the application form of a candidate who nominated himself or herself for the elections must indicate , in particular , his or her “ education , principal place of work or service and the position held ( if he has no principal place of work or service – profession ) ” . The same information is required from candidates nominated to federal rolls by political parties ( section CARDINAL § CARDINAL ( CARDINAL ) ) who may , in addition and without being obliged to do so , indicate their membership and status in a political party on the condition that they submit a document confirming such information and officially certified by the standing governing body of that party . The same requirements apply to the candidates nominated by political parties for election in single - mandate constituencies ( section CARDINAL § CARDINAL ) .

On DATE ORG OSCE ) released the final Election Observation Mission Report concerning the elections to ORG held on DATE . The relevant extracts read as follows :

“ There were relatively few complaints concerning registration of parties and candidates , and the ORG adjudicated most of these in a fair and open manner . However in a number of instances , courts and lower level election commissions disqualified candidates in a selective manner for trivial violations ...

In a ruling which suggested an inconsistent and selective application of the registration rules , former Procurator General PERSON ( DATE ) was refused registration on the basis that he had failed to mention in his nomination papers that he had a second job of a professor at ORG and had also failed to provide timely confirmation of his membership of the [ ORG ] . The ORG 's decision was initially revoked by the ORG . However , when the matter was remitted to the ORG , it again refused to register PERSON , on the same grounds . On a second appeal to the ORG , Mr Skuratov 's complaint was rejected on the grounds that the ORG had provided clearer reasons for its decision . Mr Skuratov 's subsequent appeal to ORG was also rejected . ”


Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste

The applicant , Mr Petro Ivanovych Baloga , is a NORP national who was born in DATE and lives in GPE village , GPE region , GPE .

At the material time , the applicant was a district police officer .

On DATE the local prosecutor 's office instituted criminal proceedings against the applicant , charging him with abuse of authority and forgery . It was alleged , in particular , that during DATE the applicant had drawn up a number of reports of administrative offences and forged the signatures of imaginary offenders in order to embellish his work statistics . However , the offenders mentioned therein did not exist .

On DATE ORG ( hereinafter referred to as “ the ORG ” ) found that the acts imputed to the applicant had ceased to be a danger to society . Accordingly , it ruled that he was no longer liable and discontinued the proceedings against him . The applicant appealed .

On DATE ORG ( hereinafter referred to as “ the Court of Appeal ” ) quashed the decision of DATE , having noted that the lower court had not verified whether the applicant had consented to the discontinuation of the proceedings against him , and that it had examined the case in the applicant 's absence . It ruled , however , to discontinue the proceedings against the applicant . According to the applicant 's submissions he was not provided with a copy of that decision in due time and this therefore caused delays in appealing in cassation against it .

From DATE to CARDINAL DATE no hearings were held .

On DATE , having allowed the applicant 's appeal in cassation , ORG found that , contrary to the requirement of the law , the courts in both instances had examined the case in the applicant 's absence and that they had discontinued the proceedings against him without his consent . Accordingly , it quashed the ruling of DATE and remitted the case for fresh consideration to ORG .

On DATE ORG quashed the decision of DATE and ordered a retrial .

On DATE and CARDINAL DATE the court hearings were adjourned owing to the applicant 's failure to attend them . The applicant asserted in this regard that he had not been duly summoned .

On DATE ORG ordered the police to secure the applicant 's attendance at the next court hearing . According to the applicant , he was brought to the hearing on DATE .

According to the applicant , on DATE , he was again brought by the police to ORG . However , he alleges that this was without a proper court order .

According to the ORG 's submissions , the applicant failed to appear on DATE .

On DATE ORG found the applicant guilty of abuse of authority and forgery but amnestied him .

On DATE ORG , pointing out a number of shortcomings of the lower court ( for example , the failure to indicate in the judgment the punishment given to the applicant , the failure to indicate the date of the amnesty act referred to , the failure to resolve the matter of court fees ) , quashed the judgment of DATE and ordered a retrial .

The applicant appealed in cassation . On DATE ORG rejected his request for leave to appeal .

Meanwhile , on CARDINAL and DATE the applicant failed to appear . Owing to the applicant 's failure to comply with the court summons , ORG ordered the police to secure the applicant 's attendance at the court hearing . According to the applicant , these orders were enforced on DATE .

On DATE ORG found the applicant guilty of the aforesaid crimes and sentenced him to DATE imprisonment . The court also banned the applicant from holding positions in the organs of ORG . By the same judgment the court amnestied the applicant .

On DATE ORG upheld the judgment of CARDINAL DATE .

On DATE ORG rejected the applicant 's appeal in cassation . However , it ruled that the applicant should be exempted from punishment because the statutory time - limit for prosecuting him had elapsed .

According to the records provided by the Government the adjournments due to the applicant 's failure to appear caused a delay of DATE .


The applicants , PERSON , PERSON , PERSON , PERSON and Mr PERSON are NORP citizens , who were born in DATE , respectively and live in GPE , GPE , PERSON , NORP and ORG . They are represented before the ORG by ORG and ORG , lawyers practising in GPE , GPE .

The applicant and her husband lived in GPE . The husband received his pension until DATE when the payments stopped . GPE is situated in a part of GPE which was occupied from DATE until DATE .

In DATE the applicant and her husband left GPE , due to the military operation “ Storm ” ( PERSON ) , and went to live in GPE .

On DATE the husband died .

In DATE the applicant returned to GPE .

It appears that the applicant requested ORG to grant her payments related to her late husband ’s pension . The applicant ’s right to a family pension was recognised as from DATE and the applicant has continued to receive payments of her pension from that date .

The applicant then filed an action with ORG ( PERSON u ORG ) seeking payments of her late husband ’s pension for the period DATE and DATE .

On DATE the court rejected the applicant ’s claim . It found that the applicant and her husband had lived in an occupied part of GPE and that the husband had received a pension from the authorities which controlled that territory . According to LAW a person was allowed to receive CARDINAL pension and since the applicant ’s husband had received a pension from the authorities of the occupied territory he had no right to another pension from the NORP authorities .

On DATE the applicant appealed against the first instance judgment .

On DATE ORG ( PERSON u ORG ) upheld the first instance judgment .

The applicant lived in ORG . She received a family pension until DATE when the payments stopped . ORG is situated in a part of GPE which was occupied from DATE until DATE .

In DATE the applicant left GPE , due to the military operation “ Storm ” , and went to live in GPE .

In DATE the applicant returned to GPE .

It appears that the applicant requested ORG to provide her with a pension . The applicant ’s right to a family pension was recognised as from DATE and the applicant has continued to receive payments of her pension from that date .

The applicant then filed an action with ORG seeking payments of her pension for the period DATE and DATE .

On DATE the court rejected the applicant ’s claim . It found that the applicant had lived in an occupied part of GPE and that she had received a pension from the authorities which controlled that territory . According to LAW a person was allowed to receive CARDINAL pension and since the applicant had received a pension from the authorities of the occupied territory she had no right to another pension from the NORP authorities .

On DATE ORG upheld the first instance judgment .

The applicant lived in GPE . She received a pension until DATE when the payments stopped . Mađari is situated in a part of GPE which was occupied from DATE until DATE .

In DATE the applicant returned to GPE .

It appears that the applicant requested ORG to pay her pension . The applicant ’s right to a family pension was recognised as from DATE and the applicant has continued to receive payments of her pension from that date .

On DATE the court rejected the applicant ’s claim . It found that , according to LAW of LAW , it was possible to seek pension instalments only for DATE . Since it was established that the applicant had received a pension for DATE before she had filed her claim with ORG , the period for which the applicant had sought the pension instalments fell within the statutory limitation .

The applicant lived in NORP . She received a pension until DATE when the payments stopped and the applicant left GPE and went to live in GPE until DATE . Then she returned to GPE and settled in ORG , a town situated in a part of GPE which was occupied from DATE until DATE .

In DATE the applicant returned to GPE .

It appears that the applicant filed a request for payment of her pension . The applicant ’s right to a family pension was recognised as from DATE and the applicant has continued to receive payments of her pension from that date on .

On DATE the court rejected the applicant ’s claim . It found that , according to LAW of LAW , it was possible to seek pension instalments only for DATE . Since it was established that the applicant had received a pension for DATE before she had filed her claim with ORG , the period for which the applicant had sought payments of her pension fell within the statutory limitation .

The applicant lived in ORG . He received a pension until DATE when the payments stopped . ORG is situated in a part of GPE which was occupied from DATE until DATE .

On DATE the applicant returned to GPE .

It appears that the applicant filed a request for payment of his pension for the period DATE and DATE with ORG , ORG ( Hrvatski zavod za mirovinsko osiguranje , Područna služba u ORG ) . On DATE that authority issued a decision stating that payment of the applicant ’s pension had been stopped on CARDINAL DATE due to the war in GPE . Since the applicant had lived in the occupied territory the NORP authorities had been unable to verify his address . It also stated that the applicant had received a pension from the authorities that had controlled that territory . The applicant ’s right to receive again the payments of his pension from the NORP authorities was recognised as from DATE .

The applicant then filed an action with ORG seeking payments of his pension for the period DATE and DATE .

On DATE the court rejected the applicant ’s claim . It noted that ORG , ORG had decided that the applicant had had no right to a pension for the period in question and found that a regular civil court had no competence to set aside such a decision issued by an administrative body , but only to determine the applicant ’s civil claim for payment . However , such a claim had no legal ground as the applicant ’s right to receive a pension in the period from DATE until DATE had not been recognised by the competent authority .

On DATE all CARDINAL applicants filed together a constitutional complaint . They recalled that they had requested payment of the pension instalments for the respective periods during which no pension had been paid and alleged that ORG refused to pay , contrary to the law . Thus , their right to the peaceful enjoyment of their property had been violated .

Furthermore , they alleged that their right to equality before the courts was violated because in other proceedings concerning similar claims , other courts in GPE had granted such claims . Also , the exact amount of the pension instalments that they claimed had never been established .

They argued furthermore that the lower courts had erred in the application of laws because they had applied LAW retroactively and also wrongly interpreted the rules regulating statutory limitation .

In respect of the first CARDINAL applicants ORG rejected the complaint on DATE and in respect of the fifth applicant the complaint was rejected on DATE .

It found that , in essence , the constitutional complaint was of a fourth instance nature since the applicants complained that the lower courts wrongly established the facts and erred in their application of the laws . It concluded that the lower courts’ decisions were based on law and well reasoned and that the rights complained of were not violated .

In respect of the first applicant , PERSON ORG stated as follows :

... The applicant is treating her constitutional complaint as a regular legal remedy and is asking ORG to act as a court of appeal in respect of the courts that gave the impugned judgments .

However , according to the constitutional definition of ORG jurisdiction , as regulated by LAW as well as by LAW of LAW , a constitutional complaint is a remedy established for the protection of human rights and fundamental freedoms and may be filed against an act ( and the proceedings that preceded such an act ) that has violated an applicant ’s human rights or fundamental freedoms guaranteed by LAW ( constitutional rights ) .

The applicant asks ORG to rule that the contested judgments violated her rights guaranteed in LAW , LAW , Articles DATE , CARDINAL and DATE , LAW and LAW in connection with ORG , DATE and DATE and LAW .

More specifically , the applicant alleges an infringement of her constitutional rights under LAW and LAW , in that her right to equality before the law and before the courts had been violated because the first - instance court failed to ask the defendant to certify the exact amount of the pension instalments that had not been paid to the applicant during the material period .

However , the first - instance court established that the late applicant ’s husband had received a pension from a “ para - fund ” , whose acts were recognised on the basis of LAW ( Official Gazette no . CARDINAL/CARDINAL ) . According to LAW of the former LAW ( Official Gazette nos . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL ) and LAW of LAW ( Official Gazette no . CARDINAL/CARDINAL ) a beneficiary who has acquired the right to CARDINAL or more pensions is allowed to receive CARDINAL pension . Accordingly , the first - instance court established that the late applicant ’s husband had chosen to receive in the relevant period a pension based on the act that that court recognised pursuant to LAW ; it further established that the applicant had no legal basis to claim for the same period another pension on a different basis .

The applicant herself indicated the value of her claim . In rejecting the applicant ’s request that the exact amount of the pension instalments that she sought be established , having already ruled that her claim had no legal basis , the first - instance court did not violate her right to equality before the law and the courts .

Lastly , the second - instance judgment accepted the defendant ’s objection based on the statutory limitation in LAW , which provides that all outstanding payments under LAW of that provision ( pensions and other monetary instalments ) that have not been paid owing to circumstances caused by a beneficiary can be sought only for DATE when the claim for payment has been filed , noting that the applicant had filed her claim on DATE but had been in receipt of her family pension since DATE , a period of DATE before the time when she filed her claim .

The facts relevant in the proceedings in which the impugned judgments were given , and on which the applicant based her constitutional complaint , are not relevant for the assessment whether the applicant ’s constitutional rights were violated . Presentation of evidence and the establishment of facts fall within the competence of the courts that conducted those proceedings . ”

In respect of the other CARDINAL applicants ORG gave very similar reasoning .

The relevant parts of LAW ( Zakon o mirovinskom osiguranju - ORG no . CARDINAL/CARDINAL ) provide in its LAW that pension instalments which have not been paid owing to circumstances caused by a beneficiary can be sought only for DATE , and that the period before that falls within the statutory limitation .

Section CARDINAL provides that a person who , according to NORP law , is entitled to CARDINAL or more pensions under the compulsory national retirement pension scheme may receive CARDINAL of those pensions .

Section CARDINAL of LAW ( Zakon o konvalidaciji , Official Gazette no . CARDINAL/CARDINAL ) provides that all individual acts and decisions issued by various bodies or legal persons exercising public authority in matters of a judicial or administrative nature in the parts of GPE that were under the protection and authority of ORG , are to be validated by that LAW , according to LAW , LAW on human rights and freedoms and the rights of ethnic and national communities or minorities in GPE and other statutes .


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant was born in DATE and lives in GPE .

In DATE the applicant married ORG In DATE they had a son , D. Subsequently , the applicant and ORG separated . Since their separation , they have been living in the same town and in the same street .

On DATE ORG issued an interim contact order . According to its terms , the applicant was allowed to visit the child every DATE and every first DATE and third DATE , QUANTITY

DATE and DATE the GPE police intervened on CARDINAL occasions in order to facilitate the applicant 's contact with his child . These interventions took place at ORG 's place of residence and it would appear that on all these occasions the applicant was able to see the child .

On DATE ORG dissolved the applicant 's marriage . It awarded parental rights to ORG , limited the applicant in the exercise of his rights and ordered that NORP 's permanent residence be with his mother . The applicant was allowed to participate in decisions about the child 's education and health .

On DATE , CARDINAL DATE and CARDINAL DATE the applicant made applications for fines to be imposed on ORG under LAW . He subsequently withdrew the applications .

On DATE ORG modified the access arrangements to allow the applicant to take his son for DATE holiday CARDINAL .

DATE and DATE the GPE police intervened on QUANTITY occasions in order to facilitate the applicant 's contact with NORP It appears that only on one of these occasions was the applicant unable to see NORP , as the child stated that he had not wished to see his father .

On DATE , on the applicant 's motion , ORG ordered ORG to allow the applicant 's contact with the child on pain of a CARDINAL ORG fine .

DATE and DATE the police intervened on CARDINAL occasions in order to enforce the applicant 's contacts with his son .

On DATE the applicant and his ex - wife concluded a court settlement concerning the applicant 's visiting right . According to its terms the contacts were to be enforced under supervision of a court appointed guardian in order to protect NORP 's well - being .

NORP However , the mother failed to comply with the access arrangements . On DATE the applicant asked ORG to impose a fine on ORG for failure to comply with the settlement . On DATE ORG ordered ORG to make the child available for a visit ( by DATE ) , on pain of having to pay a fine .

On DATE the applicant lodged yet another request for a fine to be imposed on ORG On DATE ORG dismissed that request . The court obtained reports from CARDINAL experts including a psychologist and heard evidence from several witnesses . It considered that ORG had not turned the child against his father . It noted that the child had not wished to attend the meetings with his father . Moreover , because of the forced contacts , in particular the DATE holiday in DATE , NORP started suffering from anxiety and fear . The court also made reference to the fact that the applicant had proposed not to have any contacts with the child for DATE if ORG did not claim maintenance payments for that period . The applicant 's further appeal was dismissed by ORG on DATE .

Meanwhile , on DATE the applicant filed a motion for amendment of the divorce decree in the part relating to parental rights . On DATE ORG dismissed his application .

The applicant appealed , and on DATE ORG gave a decision granting custody to the applicant and ordering that NORP 's permanent residence be with his father . The mother was allowed to participate in decisions concerning the child 's education and choice of profession .

On DATE ORG filed an application with ORG to be granted sole custody of NORP

On DATE ORG returned the applicant 's request to impose a fine on ORG since he had failed to pay the required court fee . His subsequent interlocutory appeal was dismissed on DATE .

On DATE ORG modified the decision of DATE . The court held that ORG should be granted full custody over NORP and that NORP 's place of residence should be with his mother . The applicant was allowed to decide jointly about the child 's education and choice of profession .

A further appeal lodged by the applicant was dismissed by ORG on DATE . The court held that the applicant had not had a good relationship with his child and that the boy was afraid of him . The court stressed that the applicant could not have successfully claimed custody over NORP since his son fled from him whenever he had seen him .

Meanwhile , the applicant asked the court to hand NORP over to him . On DATE ORG gave an interim decision and held that while the custody proceedings were pending the child should stay with his mother . On DATE ORG refused to hand NORP over to the applicant .

On DATE ORG dismissed the applicant 's motion to impose a fine on ORG for obstructing his access to the child .

On DATE the applicant again requested that NORP be restored to him . On DATE ORG refused his request . The applicant did not appeal against that decision .

On DATE the applicant filed an application to be granted full parental rights . His application was dismissed by ORG on DATE . The court held that NORP had been living with his mother , with whom he had very close relations , and it was in the child 's best interest to leave him with her . The court referred to the child 's ( then DATE ) own statements that his mother had not obstructed his contact with the applicant . It was NORP himself who had avoided contact with his father . The court further noted that DATE ( when ORG filed a claim for increase of maintenance payments ) the applicant had not attempted to contact his son and to exercise his visiting rights . Their contact was limited to occasional meetings on the street , since they lived nearby . The applicant 's appeal against this decision was dismissed on DATE by ORG .

On DATE the applicant asked the court to impose a fine on the mother for obstructing his contacts with NORP On DATE ORG dismissed his request . The applicant did not appeal against that decision .

The relevant domestic law concerning the enforcement of a parent 's visiting rights is set out in the ORG 's judgment in the case of GPE v. GPE no . CARDINAL/CARDINAL , § § CARDINAL - CARDINAL , DATE .


Violation of Art. 11;Not necessary to examine Art. 14;Pecuniary damage - financial award;Non-pecuniary damage - financial award

The applicants , PERSON and PERSON , were born in DATE and DATE and live in LOC and GPE respectively . The first applicant was a member of the trade union PERSON and the second applicant was its president .

The trade union PERSON was founded in DATE by civil servants from various localities under LAW ( Law no . CARDINAL ) . Under LAW of its constitution its objective is to promote democratic trade unionism to further the aspirations and claims of its members . Its head office is located in GPE .

On DATE Tüm Bel Sen entered into a collective agreement with ORG for a period of DATE from DATE . The agreement concerned all aspects of the working conditions of ORG employees , including salaries , allowances and welfare services .

As ORG had defaulted on certain of its obligations under the agreement , in particular those of a financial nature , the first applicant , as a representative of the union , brought civil proceedings against it in ORG ( the “ ORG ” ) on DATE .

In a judgment of CARDINAL DATE ORG found in favour of PERSON ORG appealed on points of law .

On DATE ORG quashed the judgment of the court below . It found that , even though there was no legal bar preventing civil servants from forming unions , they were not , as the law stood , authorised to enter into collective agreements .

In a judgment of CARDINAL DATE ORG confirmed its earlier judgment on the ground that , despite the fact that the domestic statute contained no express provision affording unions formed by civil servants the right to enter into collective agreements , this omission had to be remedied in the light of international treaties such as the relevant convention of ORG , which had already been ratified by GPE .

On DATE ORG quashed the judgment of the court below . It ruled that , at the time the union was formed , the applicable law did not permit civil servants to form trade unions . The union PERSON could not rely on the international labour conventions that dealt with such matters as they had not yet been incorporated into domestic law and no implementing legislation had been enacted . ORG concluded that the union did not have legal personality or the capacity to enter into a collective agreement .

An application for rectification lodged by representatives of the union was dismissed by ORG on DATE .

Following an audit of ORG accounts by ORG , the ORG asked the members of the union PERSON to reimburse the additional income they had purportedly received as a result of the defunct collective agreement .

The relevant provisions of LAW read as follows :

“ Operative workers and employers shall have the right to form trade unions and federations of unions , without prior permission , in order to safeguard and develop their economic and social rights and interests in their labour relations .

In order to form a union or a federation of unions , it shall suffice to submit the information and documents prescribed by law to the competent authority designated by law . If it finds that this information and documentation is not in conformity with the law , the competent authority shall apply to the appropriate court for the suspension of activities or the dissolution of the union or federation of unions .

Everyone shall be free to become a member of or withdraw from membership of a union .

No one shall be compelled to become a member , remain a member , or withdraw from membership of a union .

Operative workers and employers can not hold concurrent memberships in CARDINAL trade union .

Employment in a given workplace shall not be made conditional on membership or lack of membership of a trade union .

In order to hold a leadership position in a trade union or federation of trade unions , it is necessary to have effectively been employed as an operative worker for DATE .

The statutes , administration , and functioning of trade unions and federations of trade unions shall not be inconsistent with the characteristics of the LOC or with democratic principles as defined in the LAW . ”

“ Employees and employers shall have the right to form trade unions and federations of unions , without prior permission , in order to safeguard and develop the economic and social rights and interests of their members in their labour relations , and to join and withdraw from such entities of their own free will . No one shall be compelled to become a member or withdraw from membership of a union .

The right to form a union may only be restricted by law and for the purposes of safeguarding national security or public order and preventing crime , and for the protection of public health or public morals and the rights and freedoms of others .

The formalities , conditions and procedures to be applied in exercising the right to form a union shall be established by law .

It is not permitted to hold membership of CARDINAL trade union simultaneously within the same sector of employment .

The scope of the rights in this area of ORG employees who do not have the status of operative worker , and the exceptions and limitations applicable to them , shall be established by law in accordance with the nature of the tasks entrusted to them .

The statutes , administration and functioning of trade unions and federations of unions must not be inconsistent with the fundamental characteristics of the LOC or with democratic principles . ”

“ Operative workers and employers shall have the right , in the course of their bilateral relations , to enter into collective bargaining agreements in order to regulate their economic and social position and conditions of work .

Collective agreements shall be entered into in accordance with the statutory procedure .

It shall be prohibited to enter into or apply more than one collective agreement in a single workplace within the same period . ”

“ Workers and employers shall have the right , in the course of their bilateral relations , to enter into collective agreements in order to regulate their economic and social position and conditions of work .

The trade unions and federations of unions which the ORG employees referred to in the first paragraph of Article CARDINAL shall be entitled to form and which do not fall within the scope of the first and second paragraphs of the present article , nor that of LAW , may appeal to judicial authorities and may engage in collective bargaining with the administration in accordance with their aims on behalf of their members . If an agreement is reached as a result of collective bargaining , the text of the agreement shall be signed by the parties . This text shall be presented to ORG so that administrative or judicial arrangements can be made . If no such agreement is reached through collective bargaining , the points of agreement and disagreement shall be drawn up and signed by the relevant parties and submitted for consideration by ORG . The procedure for the implementation of this paragraph shall be set out in legislation .

“ The essential and permanent duties required by the public services that the ORG , State economic enterprises and other public corporate bodies are assigned to perform , in accordance with general principles of administration , shall be carried out by civil servants and other ORG employees .

The qualifications , appointment , duties and powers , rights and responsibilities , and salaries and allowances of civil servants and other ORG employees , and other matters related to their status , shall be provided for by law .

The procedure and principles governing the training of senior civil servants shall be specially provided for by law . ”

Section CARDINAL of LAW ( Law no . CARDINAL ) of CARDINAL DATE stated that civil servants were authorised to form and join trade unions and professional organisations , in accordance with the conditions set out in special laws . Its second paragraph stated that the said professional organisations were authorised to defend the interests of their members before the competent authorities . That section was repealed by LAW no . CARDINAL of DATE . It was brought back into force by LAW no . CARDINAL of DATE . The text now reads :

“ Civil servants shall be authorised to form trade unions and federations of trade unions and to join them . ”

Article CARDINAL of the Freedom of Association and Protection of the Right to Organise Convention , DATE ( Convention No . CARDINAL ) provides :

“ Workers and employers , without distinction whatsoever , shall have the right to establish and , subject only to the rules of the organisation concerned , to join organisations of their own choosing without previous authorisation . ”

The relevant articles of the Right to Organise and Collective Bargaining Convention , DATE ( Convention No . CARDINAL ) read as follows :

“ Measures appropriate to national conditions shall be taken , where necessary , to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or ORG organisations and workers’ organisations , with a view to the regulation of terms and conditions of employment by means of collective agreements . ”

“ CARDINAL . The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations .

In accordance with the principle set forth in paragraph CARDINAL of LAW of the International Labour Organisation the ratification of this LAW by any Member shall not be deemed to affect any existing law , award , custom or agreement in virtue of which members of the armed forces or the police enjoy any right guaranteed by this LAW . ”

“ This Convention does not deal with the position of public servants engaged in the administration of the ORG , nor shall it be construed as prejudicing their rights or status in any way . ”

The relevant provisions of LAW provide as follows :

“ With a view to ensuring or promoting the freedom of workers and employers to form local , national or international organisations for the protection of their economic and social interests and to join those organisations , the Contracting Parties undertake that national law shall not be such as to impair , nor shall it be so applied as to impair , this freedom . The extent to which the guarantees provided for in this Article shall apply to the police shall be determined by national laws or regulations . The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations . ”

“ With a view to ensuring the effective exercise of the right to bargain collectively , the Parties undertake :

to promote joint consultation between workers and employers ;

NORP to promote , where necessary and appropriate , machinery for voluntary negotiations between employers or ORG organisations and workers’ organisations , with a view to the regulation of terms and conditions of employment by means of collective agreements ;

NORP to promote the establishment and use of appropriate machinery for conciliation and voluntary arbitration for the settlement of labour disputes ;

and recognise :

the right of workers and employers to collective action in cases of conflicts of interest , including the right to strike , subject to obligations that might arise out of collective agreements previously entered into . ”