Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-3 - Rights of defence;Article 6-3-d - Examination of witnesses;Obtain attendance of witnesses);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Equality of arms);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra;Nona Tsotsoria

The applicant was born in DATE . The facts of the case may be summarised as follows .

On DATE the applicant was arrested on suspicion of extortion . While in detention awaiting the trial in the extortion case , on CARDINAL DATE the applicant was charged with having committed robbery on DATE .

On DATE the applicant submitted a complaint to ORG attached to ORG , maintaining his innocence with regard to the charges of robbery and pointing out that his alibi could be proved by his neighbours , who had seen him working in the yard of his residence on DATE in question . Similar complaints were addressed to ORG on DATE and on DATE .

On DATE a confrontation was carried out between the applicant and a witness PERSON The applicant ’s counsel was present . According to the record of the confrontation , PERSON confirmed the applicant ’s involvement in the robbery and the applicant denied it . When given an opportunity to put questions to PERSON , the applicant did not have any .

On DATE the pre - trial investigation in the applicant ’s criminal case was completed and he was given an opportunity to read the materials in the case file . After reading the case file the applicant submitted several written requests , including a request to hold an identity parade to determine whether the victim of the robbery could identify him in a line - up .

On DATE a prosecutor rejected the applicant ’s requests . With regard to the identity parade , the prosecutor considered that it would serve no useful purpose as the victim had stated that he would not able to recognise his attackers .

On DATE the Rīga City Zemgale District Court convicted the applicant of extortion and sentenced him to a prison term of DATE . That judgment eventually became final after the applicant revoked his appeal .

From DATE to DATE hearings in the robbery case took place in ORG . At the hearing , apart from the applicant and his CARDINAL co - accused , the following witnesses were present and testified : GPE , who explained that he had driven all the accused persons to the victim ’s residence ; GPE , the victim ’s neighbour , who had not seen the act of robbery but had heard some conversations through the doors of his apartment and had later seen that the victim had been beaten ; CARDINAL minor girls , who had noticed a car in which goods taken from the victim ’s apartment were being loaded and had written down its licence number ; GPE , the applicant ’s former partner , who testified that she had seen the applicant at home on DATE of the robbery ; PERSON , a friend of GPE , who had also seen the applicant at home on DATE of the robbery ; PERSON , the applicant ’s neighbour , who had seen the applicant working in the yard of his house on DATE of the robbery ; PERSON , the applicant ’s neighbour , who on DATE of the robbery had worked in the yard together with the applicant , and CARDINAL other witnesses .

NORP The court then turned to the question of whether the pre - trial statements of the victim and the witness PERSON could be read out in their absence . The applicant insisted that they had to be questioned in court . On DATE the victim had written to the court and indicated that he was unable to attend the hearing “ owing to a disability ” . The court decided to read out the victim ’s pre - trial statements .

On DATE the court ordered that PERSON be brought to the hearing by the police under constraint , since he had failed to appear at the court without a legitimate excuse . On DATE the police informed the court that PERSON was not residing at the address known to the court . The court then decided to read out the pre - trial statements of PERSON The applicant again insisted that PERSON had to be questioned in person because his testimony directly implicated the applicant in the commission of the crime . The court nevertheless read out the statements obtained during the pre - trial investigation , according to which PERSON had attempted to enlist GPE ’s help in recovering his stolen motorcycle and that the CARDINAL accused had also joined in . PERSON had waited in the car outside the victim ’s apartment building , so he did not see what happened inside but saw the accused carrying out a TV set and other items , which they loaded into the boot of the car and eventually took with them

On DATE ORG adopted a judgment by which the applicant was convicted of robbery and sentenced to CARDINAL years’ imprisonment . The court held that the applicant and his co - accused had gone to the victim ’s apartment to help PERSON find his stolen motorcycle . It considered that the applicant ’s guilt had been established by the testimonies of the applicant ’s co - accused , the victim , GPE , GPE , GPE , and the CARDINAL minor girls who had written down the number of the licence plate of the car used to transport the victim ’s stolen property . The court considered that there was no reason not to believe the pre - trial statements of PERSON and that slight discrepancies in the testimony of GPE could be explained by the fact DATE had passed since the events in question . The court did not believe the testimonies of the witnesses who confirmed that on DATE of the robbery the applicant had been working in the yard of his house , because those witnesses had been questioned at the applicant ’s request and because too long a time had passed since DATE of the robbery and they could not possibly remember what the applicant had been doing on DATE .

On DATE the applicant submitted an appeal , which he amended on DATE . He complained inter alia about the victim ’s absence from the hearing , which had been justified with reference to his disability ; yet , according to the information available to the applicant , his disability was not such as to prevent him from attending the trial . Further , the applicant alleged that his defence had been impaired by the absence of PERSON from the court hearing , especially because PERSON had a reason to falsely accuse him because of their strained personal relationship . He complained that CARDINAL other people – S.K - a and LAW – had not been summoned to the court and that their testimonies given during the pre - trial investigation had not even been read out . The applicant requested that the victim , PERSON , S.K - a and S.K - s be summoned to the appeal hearing .

On DATE ORG rejected the applicant ’s appeal against the judgment of the first - instance court , essentially relying on the reasoning of the first - instance court and without specifically addressing any of the above - mentioned issues raised by the applicant in his appeal .

On DATE the applicant submitted an appeal on points of law to the ORG of ORG . He essentially repeated the submissions he had made in his appeal .

On DATE ORG sent the applicant a letter , explaining , inter alia , that there had been a delay with regard to the hearing of his case in ORG because of “ objective reasons ” – the heavy workload of that court .

On DATE the ORG of ORG rejected the applicant ’s appeal on points of law . In its decision the ORG pointed out , inter alia , that during the trial at the court of appeal the applicant had not repeated his request that – among others – M.B. and the victim be summoned to the hearing . The ORG therefore held that the applicant ’s complaint about their absence was ill - founded .

On DATE ORG ( PERSON vietu pārvalde ) sent a letter to the applicant informing him that in DATE a blood test had disclosed that he was HIV positive . Subsequently , additional tests had revealed that the applicant was also infected with hepatitis C.

On DATE the applicant sent a letter to ORG , inter alia expressing his belief that he had been infected in LOC in circumstances unknown to him . The applicant also explained that he had never used intravenous drugs and that he was not a homosexual .

On CARDINAL occasions in DATE ORG received letters from the applicant in which he explained that he had been infected with HIV while in LOC . However , he consistently reiterated that he did not know in what circumstances he had been infected .

On DATE the applicant lodged a claim with ORG seeking damages from LOC because he had been infected with HIV by the fault of the prison staff .

On DATE the administration of FAC submitted its response . It pointed out that on DATE , upon the applicant ’s arrival at FAC , his HIV test had been negative . On DATE the test had been positive , which made the representatives of FAC believe that the initial test could have been performed during the “ window ” period and that the applicant had been infected before his arrest or , alternatively , that he had been infected while in prison because of failure to observe personal hygiene or by way of a sexual intercourse . It was also noted that all the blood samples in FAC were taken using single - use vacuum containers , which excluded the possibility of being infected during the taking of a blood sample .

In his reply of CARDINAL DATE the applicant indicated that , on the contrary , when his blood was taken in DATE , a multiple - use glass syringe had been used . He contended that he could not have been infected by his cell - mates and that , instead , he had been infected with HIV and hepatitis C in DATE when the medical staff of ORG had used a multiple - use syringe to take a sample of his blood .

On DATE the applicant amended his claim , additionally alleging that because of the negligence of the prison ’s medical staff he had been infected with hepatitis C.

On DATE Central Prison replied to the applicant ’s statement of CARDINAL DATE , pointing out , inter alia , that ORG had used single - use syringes since DATE and that there were no multiple - use syringes in the medical centre of that prison in DATE .

On DATE ORG rejected the applicant ’s claim . The judgment noted that the very fact of being placed in prison placed people at a risk of being infected with HIV and hepatitis C. The nurse who had taken the applicant ’s blood sample in DATE had testified before the court that exclusively single - use syringes had been used for blood tests in LOC since DATE or DATE . The court considered that the respondent had proved that a single - use syringe had been used when taking the applicant ’s blood sample . It also noted that it was impossible to pinpoint exactly when the applicant had been infected with hepatitis C , since he had not been tested for that disease upon his arrival at FAC in DATE .

On DATE the applicant submitted an appeal against the judgment of the first - instance court , which he disputed in a general manner . DATE he amended his appeal and noted that , while single - use syringes might indeed have been available in FAC , they had not been used for his blood test in DATE . He also requested that his presence at the hearing be ensured .

In a letter of DATE ORG informed the applicant that the hearing concerning his appeal would be held on DATE . The applicant was invited ( aicināts ) to attend the hearing . On DATE the administration of Jelgava Prison sent confirmation to ORG that the applicant had attested by his signature that he had received the above information .

On DATE ORG of ORG held a hearing and issued a judgment with regard to the applicant ’s appeal . In the judgment the court pointed out that “ the plaintiff has not appeared [ at the hearing ] because he is detained ” . There was no further analysis of the question of the applicant ’s absence . The appeal court essentially dismissed the appeal by relying on the same grounds as the first - instance court . The respondent ’s representatives and the nurse from FAC were reported to have stated that FAC had used exclusively single - use syringes since DATE .

On DATE the applicant lodged an appeal on points of law . Among other things he complained that he had not been transported to the appeal court hearing .

On DATE and then again on DATE the applicant complained to ORG that he had been infected with HIV because of negligence on the part of the medical staff of ORG . The applicant ’s complaint requested “ the initiation of criminal proceedings against the persons responsible for infecting me with HIV and hepatitis C ” . ORG forwarded the applicant ’s claim to ORG , which on DATE refused to initiate an internal investigation concerning the actions of the prison staff because the applicant ’s appeal on points of law was still pending before the ORG of ORG .

In the meantime , on DATE the ORG , by a decision of a preparatory meeting ( rīcības sēde ) , had dismissed the applicant ’s appeal on points of law . The ORG did not address the applicant ’s complaints about his absence from the appeal court hearing .

At a hearing held on DATE in the case concerning the applicant ’s alleged infection , he had left to the court ’s discretion the decision whether to open the trial to the public . The court had decided to hold a closed hearing .

At the hearing on DATE the applicant expressed his desire for the trial to be open to the public , as long as no photos were taken . The representative of ORG objected to opening the trial to the public , since the case concerned sensitive medical information . The court allowed the applicant ’s request and the trial was opened to the public .

On DATE a DATE newspaper , PERSON , published an article entitled “ Prison Doctors Accused of Injecting AIDS ” , where it was stated that “ prisoner PERSON had lodged a complaint against ORG alleging that he had been infected with AIDS because of the fault of the doctors at the prison . The article also included a photograph of the applicant behind bars , in DATE profile , where his facial features were clearly distinguishable . It also reported that the trial had not been open to the public and further described the applicant as a recidivist , who had been convicted CARDINAL times and was currently serving a prison term of DATE in FAC .

On DATE another hearing was held in the trial between the applicant and FAC . The applicant told the court that he did not object to the presence of representatives of the media at the hearing , but added that no pictures should be taken and that his name should not be published . If video recordings were to be made , the applicant insisted that his face should not be visible and his name should not be shown . The court acceded to the applicant ’s demands and prohibited the representatives of the media from disclosing the applicant ’s identity , while otherwise authorising media coverage of the trial .

On DATE the applicant lodged a claim with ORG , naming the publisher of PERSON ( ORG “ GPE Nams ” ) as the respondent and requesting non - pecuniary damages for moral and psychological harm caused to him when PERSON published the above - mentioned article , which included his photo in which he was fully recognisable . The claim was based on an alleged infringement of personal data protection legislation and an alleged violation of criminal law which , in accordance with LAW , created an obligation to pay damages .

NORP In its response the publisher pointed out that the applicant had implicitly consented to the disclosure of his personal data when he had lodged a claim against FAC . Furthermore , he had not asked for the trial to be closed to public . At an unspecified later date the respondent publisher amended its observations , indicating that the disputed article had merely put together information that had been in the public domain . Furthermore the applicant himself had striven to make the information about his case as widely available as possible .

On DATE ORG adopted a judgment by which it dismissed the applicant ’s claim . It expressed the opinion that data protection legislation was applicable to the applicant , as he could be identified from the photograph published in the newspaper . It also agreed that the applicant had not consented to the publication of his personal data , since during the trial he had asked not to be filmed or photographed . Thus the respondent newspaper had contravened the law by publishing sensitive personal data . Nevertheless , the applicant had failed to prove the existence of any damage and/or had not referred to any legal basis for the damages claimed ; therefore his claim for compensation had to be dismissed .

On DATE the applicant appealed . Among other things he indicated specific types of damage he had allegedly suffered . On DATE the applicant submitted additional comments to the appeal court in which he emphasised that the publication of his data and photo had been prohibited by the court during the hearing of CARDINAL DATE in the case against FAC .

On DATE and DATE the applicant asked the appeal court when his appeal would be heard and also requested that his presence at the hearing be ensured .

On DATE ORG of ORG held an appeal hearing . Its verbatim record indicates that the court noted that the applicant had not appeared at the hearing and , after asking for the opinion of the respondent , it decided to proceed in the applicant ’s absence .

On DATE ORG adopted its judgment , in which it was pointed out that the applicant had not been escorted to the hearing and that the case could be heard in his absence . No further comments in this regard were made .

As to the substance , the court held that the media were not subject to the data protection legislation and that there were no legal grounds for compensating the non - pecuniary damage allegedly caused to the applicant by the publication .

On DATE the applicant lodged an appeal on points of law . He complained , among other things , that the case had been heard by the appeal court in his absence .

On DATE the ORG of ORG , by a decision of a preparatory meeting , dismissed the applicant ’s appeal on points of law . The ORG considered that the applicant had merely disputed the assessment of facts by the first - instance and appeal courts and therefore his appeal on points of law did not meet the procedural requirements . The decision did not mention the applicant ’s complaint about his absence from the appeal hearing .

As in force at the material time , section CARDINAL ( CARDINAL ) of ORG provided that civil proceedings were to be conducted on an adversarial basis ( “ sacīkstes formā ” ) . In practice it meant the following :

Each party shall prove the facts forming the basis of its claims or objections . ...

Evidence shall be submitted by the parties and by other participants . If it is not possible for the parties or other participants to submit evidence , the court shall ask ( izprasīt ) for such evidence on the basis of a reasoned request . ”

As in force at the relevant time , section CARDINAL of the Criminal Law provided for criminal responsibility for inadequate performance of professional duties by a medical professional resulting in serious or life - threatening injuries , a person ’s death or infection with HIV . Under section CARDINAL ( CARDINAL ) of LAW the statute of limitations for this crime was DATE .

Article CARDINAL of LAW as in force at the relevant time obligated prosecutors to initiate criminal proceedings every time signs of a criminal offence ( noziedzīga nodarījuma pazīmes ) were discovered . According to LAW criminal proceedings could be initiated only in those cases when there was a sufficient basis ( pietiekams pamats ) to believe that a criminal offence had been committed .

Article CARDINAL provided as follows :

“ [ A ] prosecutor ... has to accept materials , applications and declarations concerning a criminal offence that has been committed ... , including in cases which do not fall under his jurisdiction .

In relation to the materials , application or declaration received CARDINAL of the following decisions shall be taken :

to initiate criminal proceedings ;

to refuse to initiate criminal proceedings ;

to submit the application or declaration to [ a competent institution ] .

Applications and declarations concerning crimes shall be examined immediately but at the latest within DATE of their receipt . ... ”

Article CARDINAL of the Code of Criminal Procedure provided that a copy of a prosecutor ’s decision to refuse to initiate criminal proceedings was to be sent to the person who had submitted the complaint . The complainant was also to be informed of his or her right to appeal against the decision .

At the relevant time Article CARDINAL of the Code of Criminal Procedure provided that the trial in the first - instance court had to start DATE after a criminal case had been received at that court .

According to ORG as in force at the relevant time , the parties to a case had a right to participate in hearings ( section CARDINAL ( CARDINAL ) ( CARDINAL ) ) . However , a hearing could proceed even if a party to the case failed to appear in court ( section CARDINAL ) . Nevertheless , according to section CARDINAL a court had an obligation to postpone a hearing if a party was not present because he or she had not been informed of the time and place of the hearing or if he or she had not appeared for reasons the court found to be justified . A court had a choice whether to postpone a hearing if a party who had been informed of the time and place of a hearing failed to appear for unknown reasons ( section CARDINAL ) .

NORP Under section CARDINAL(CARDINAL ) of ORG Law the processing of sensitive personal data is prohibited , except if the data subject has given his or her written consent for the processing of his or her sensitive personal data .

Section CARDINAL(CARDINAL ) of ORG provides , among other things , that LAW does not apply if personal data is processed for journalistic , artistic or literary purposes , and it is not prescribed otherwise by law . Section CARDINAL(CARDINAL ) of that law , however , provides that section CARDINAL(CARDINAL ) has to be applied in compliance with the right to private life of an individual and the freedom of speech .

In accordance with section CARDINAL(CARDINAL ) of the Law on Press and Other ORG it is prohibited to publish information concerning the state of health of individuals without their consent .

On DATE ORG of ORG CARDINAL , containing a LAW , the relevant part of which reads as follows :

There is an area in which the exercise of the right of freedom of information and freedom of expression may conflict with the right to privacy protected by LAW . The exercise of the former right must not be allowed to destroy the existence of the latter .

NORP The right to privacy consists essentially in the right to live one ’s own life with a minimum of interference . It concerns private , family and home life , physical and moral integrity , honour and reputation , avoidance of being placed in a false light , non - revelation of irrelevant and embarrassing facts ... protection from disclosure of information given or received by the individual confidentially ...

The right to privacy afforded by LAW should not only protect an individual against interference by public authorities , but also against interference by private persons or institutions , including the mass media . National legislations should comprise provisions guaranteeing this protection . ”

Recommendation Rec ( CARDINAL ) CARDINAL on “ The ethical issues of HIV infection in the health care and social settings ” , adopted by ORG DATE , reads as follows in so far as is relevant to the present case :

“ Public health authorities are recommended :

in relation to reporting of cases :

to ensure that the reporting of AIDS cases ... is used for epidemiological purposes only and therefore carried out in strict compliance with appropriate confidentiality regulations and in particular that data is transmitted on a non - identifiable basis ;

to avoid any possible discriminatory use of sensitive health - related data ;

to avoid discouraging individuals from seeking voluntary testing ,

in relation to the patient - health care worker relationship :

to strongly support respect for confidentiality , if necessary by introducing specific policies and by promoting educational programs for health care workers to clarify confidentiality issues in relation to HIV infection . ”


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

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

On DATE the applicant filed with ORG ( Sąd Rejonowy ) an application for division of the joint matrimonial property .

The proceedings were terminated on DATE , when ORG ( Sąd Najwyższy ) refused to deal with the cassation appeal . On DATE , the date on which the application was lodged with the ORG , they were pending before ORG .

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

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

“ CARDINAL . NORP Parties

Section CARDINAL reads , in so far as relevant :

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

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

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

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

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

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

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

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

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


Remainder inadmissible;Violation of P1-1;Pecuniary damage - award

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

In DATE the applicant purchased a CARDINAL share in certain real estate in ORG which had been donated to the ORG by the original owners in DATE . The purchase price of CARDINAL NORP korunas ( CZK ) ( MONEY ( ORG ) ) for the whole property was fixed by an expert in DATE .

At the time the application was lodged the property was being used by the applicant 's daughter and her family .

On DATE , after the entry into force of Act no . CARDINAL ( “ LAW ” ) , a certain PERSON instituted restitution proceedings in LOC ( okresní soud ) against CARDINAL co - owners , including the applicant , seeking recovery of the property in issue by virtue of section CARDINAL ( CARDINAL ) of LAW . PERSON alleged that the acquisition of the property by the applicant and the other co - owners had been vitiated by a breach of the regulations in force at the time , that they had enjoyed an unlawful advantage , and that the price they had been required to pay had been lower than the real value of the property .

On DATE , after the case had been examined by the courts at CARDINAL levels of jurisdiction DATE , ORG ruled against the applicant and the other co - owners and transferred the title to the property to P. , the daughter of the original plaintiff who had died in the meantime . In the course of the proceedings , several expert reports assessing the value of the disputed property at the time of its acquisition by the applicant had been produced at the request of ORG : an expert report valuating the property at CZK CARDINAL,CARDINAL ( EUR CARDINAL ) , an audit report by a company , PERSON , fixing the price at CZK MONEY ( ORG CARDINAL ) and an amendment to the audit report setting the price at CZK MONEY ( ORG CARDINAL ) . It emerged from this amendment that when valuing the property the earlier reports had been based on the correct price regulation but certain interpretative directives ( směrnice a pokyny ) issued by ORG had been disregarded . The court found on the one hand that the defendants had acquired the property at a lower price than that required by the law in force at the material time . On the other hand , the plaintiff had failed to establish that they had enjoyed an unlawful advantage when acquiring the property , in that the father of CARDINAL of them was a member of ORG .

On DATE ORG ( krajský soud ) upheld the judgment of the first - instance court . It accepted the conclusions set out in the amendment to the audit report , as the reasons for the difference in prices had been satisfactorily explained . Thus , it considered a new audit , as suggested by the applicant , to be superfluous . ORG judgment became final on DATE .

On DATE ORG ( PERSON ) , without holding a public hearing , dismissed the applicant 's appeal on points of law ( dovolání ) of DATE , stating , inter alia , as follows :

“ The court of cassation finds well - founded [ the applicant 's ] arguments challenging the legal conclusions of the audit report . ... There was no reason to apply ... the particular provision of LAW ( CARDINAL ) of LAW , which only concerned expropriation and was intended to protect persons from whom real estate was taken ...

Despite this interpretation ... , the court of cassation could not grant the applicant 's request to quash as incorrect the judgment of the appellate court . Even if the wear and tear [ to the property ] had not been calculated at PERCENT , as applied by the amendment to the audit report , but at PERCENT , as applied in the previous expert reports , the price ... fixed under LAW would have been higher than the purchase price agreed between the parties ... The difference in the prices is thus not based on the subjective valuation of the expert or his interpretation of LAW , but also on the smaller surface area considered by the original expert ... [ as well as ] the wrong classification of the construction ... In these circumstances , the finding of the appellate court that the defendants had acquired the disputed property at a price lower than that established by LAW is correct ... ” .

On DATE ORG ( PERSON ) dismissed a constitutional appeal by the applicant ( ústavní stížnost ) in which she alleged , in particular , a violation of LAW ( right to property ) and CARDINAL § CARDINAL ( right to judicial protection ) of LAW ( Listina základních práv a svobod ) .

NORP In DATE the applicant was reimbursed by ORG her share of the purchase price of the property , corresponding to CZK CARDINAL,CARDINAL ( EUR CARDINAL ) . Moreover , ORG proposed the applicant and the other co - owners a sum of CZK MONEY ( EUR CARDINAL ) in compensation for the costs reasonably incurred for the upkeep of the property . That sum was fixed by an expert and the applicant was ready to accept it . However , due to an objection by P. , the new owner of the property , against whom ORG would have had a counterclaim , that sum was not paid out . In a letter of CARDINAL DATE , ORG advised the applicant to seek that compensation by means of a civil action against ORG . The applicant failed to do so however .

In an expert report produced for the purposes of inheritance proceedings after the applicant 's father ( one of the co - owners ) had died on DATE , the disputed property was valued at CZK MONEY ( EUR CARDINAL ) . According to a resolution of the GPE CARDINAL ORG of DATE , the CARDINAL share left by the deceased was acquired by the applicant . The resolution became final on DATE .

In a letter of DATE ORG informed the applicant that it had found that her right to a determination of her civil claim within a reasonable time had been violated and that she had been awarded CZK CARDINAL ( ORG CARDINAL,CARDINAL ) in non - pecuniary damages for the length of the restitution proceedings . In a letter of DATE the applicant informed the ORG that she did not wish to pursue her claim before the domestic courts .

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

NORP Under section CARDINALa of LAW , the court of cassation decides on an appeal on points of law without holding a hearing . The court holds a hearing if it considers it appropriate or if it has to review evidence .


CASE OF HERRI BATASUNA AND BATASUNA v. SPAIN

Alejandro Saiz Arnaiz;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger

The first applicant , the political party PERSON , was founded on DATE .

The second applicant , the political party GPE , was founded on DATE .

On DATE the NORP parliament enacted ORG no . CARDINAL/CARDINAL on political parties ( PERSON de Partidos Políticos – “ the NORP ” ) . According to its explanatory memorandum , that PERSON was intended to develop ORG , DATE , DATE and DATE of the Spanish Constitution by amending and updating LAW no . CARDINAL/CARDINAL of CARDINAL DATE on political parties , regard being had to the experience acquired over DATE , and to establish a complete and coherent framework for political parties , reflecting their role in a consolidated democracy .

The main innovations introduced by the new PERSON appeared in LAW on the organisation , functioning and activities of political parties , and in LAW on their dissolution and suspension by the courts of their activities .

Chapter II lays down the basic criteria intended to ensure compliance with the constitutional requirement that the organisation and operation of political parties be democratic and that they may freely engage in their activities in accordance with the LAW and the law . LAW parties to respect democratic principles and human rights , describing in detail the type of conduct that would be in breach of the principles in question . According to the explanatory memorandum , the LAW is based on the principle that any project or objective is constitutional provided that it is not pursued by means of activities which breach democratic principles or the fundamental rights of citizens . The PERSON is not intended to prohibit the defence of ideas or doctrines calling into question the constitutional framework . Its aim is rather to reconcile freedom and pluralism with respect for human rights and the protection of democracy . The explanatory memorandum states that a party may be dissolved only in the event of repeated or accumulated acts which unequivocally prove the existence of undemocratic conduct at odds with democracy and in breach of constitutional values , democracy and the rights of citizens . In that connection , sub - paragraphs ( a ) , ( b ) and ( c ) of paragraph CARDINAL of section CARDINAL draw a clear distinction between organisations which defend their ideas or programmes , whatever they may be , in strict compliance with democratic methods and principles , and those whose political activity is based on an accommodation with violence , political support for terrorist organisations or violation of the rights of citizens or democratic principles .

Chapter III sets out the grounds on which political parties may be dissolved or their activities suspended by order of the court and describes the applicable procedure in the courts . The PERSON invests the “ special ORG ” of ORG established by CARDINAL of LAW ( PERSON del Poder Judicial – “ the LOPJ ” ) with jurisdiction for the dissolution of political parties . Furthermore , provision is made for specific priority proceedings , involving a single level of jurisdiction , which may be brought only by the public prosecutor ’s office or the government , of their own motion or at the request of ORG or the ORG . According to the PERSON ’s explanatory memorandum , the proceedings in question are intended to reconcile the principle of legal certainty and the rights of the defence with the principle of promptness and a reasonable time - limit . The judgment delivered by ORG upon completion of those proceedings may be challenged only by way of an amparo appeal to ORG . Section CARDINAL details the effects of the court - ordered dissolution of a political party . Once the judgment has been served , the dissolved party must cease all activity . Furthermore , it may not set up a political organisation or use an existing party with a view to pursuing the activities of the party that has been declared illegal and dissolved . In order to rule as to whether or not there is any continuity between an existing party and a party which has been dissolved , ORG has regard to whether any “ substantial similarity ” exists between the structure , organisation and operation of the parties in question , or other evidence such as the identity of their members or leaders , their funding or their support for violence or terrorism . The assets of a dissolved political party are liquidated and transferred to the ORG to be used for social and humanitarian purposes .

The PERSON was published in ORG of the ORG on DATE and came into force the following day .

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

Founded as an electoral coalition , the political organisation ORG took part in the general elections of DATE ( the first elections in GPE following the entry into force of LAW ) . On DATE it was entered into the register of political parties at ORG .

Following ORG sentencing on DATE of CARDINAL members of ORG national directorate to imprisonment for collaboration with an armed organisation , ORG ( “ EH ” ) was set up on DATE to stand in the NORP elections of CARDINAL DATE , initially as an association of voters and then as a political party .

On DATE ORG filed documents at the register of political parties seeking registration as a political party .

On DATE the NORP autonomous government brought an action before the Constitutional Court challenging the constitutionality of the PERSON , criticising in particular sections CARDINAL(CARDINAL ) , CARDINAL(CARDINAL ) , CARDINAL(CARDINAL ) , PERSON ) and ( CARDINAL ) , CARDINAL ) , CARDINAL and DATE , LAW ( sections CARDINAL ) and paragraph CARDINAL of the sole transitional provision of that PERSON .

By a judgment of CARDINAL DATE , ORG declared the impugned LAW constitutional . As regards the very existence of such a LAW making provision for the dissolution of political parties and its purpose which , according to the NORP government , consisted of “ establishing a model of militant democracy imposing restrictions on political parties , in particular by imposing on them an obligation , not provided for in the LAW , to accept a given political regime or system ” , ORG stated :

“ According to the applicant government , the argument set out above is based on references in certain paragraphs of sections CARDINAL , CARDINAL and CARDINAL of the PERSON to the ‘ constitutional values expressed in constitutional principles and human PERSON ( section CARDINAL(CARDINAL ) ) , to ‘ democratic principles’ ( sections CARDINAL and PERSON ) ) , to the ‘ system of GPE and to the ‘ democratic system’ ( sections CARDINAL ( CARDINAL ) and ORG ) , sub - paragraph ( c ) ) , to the ‘ constitutional ORG and to ‘ public peace’ ( section CARDINAL(CARDINAL ) , sub - paragraph ( c ) ) . Despite the fact that the legal significance of those references can be grasped only in the context of each of the provisions containing them and that each of the provisions in question must in turn be interpreted in the light of the law and of the legal system as a whole , the NORP government ’s submission that there is no place , in our constitutional order , for a model of ‘ militant democracy’ within the meaning given to that expression by the Government , namely , a model in which not only compliance with , but also positive acceptance of , the established order and first and foremost the LAW is required , must be endorsed ... The impugned LAW allows for no such model of democracy . Right at the outset , the explanatory memorandum lays down the principle of a distinction between the ideas and aims proclaimed by political parties , on the one hand , and their activities , on the other , and states that ‘ the only aims explicitly vetoed are those which fall within the criminal law’ , so that ‘ any project or objective is deemed to be constitutional provided that it is not pursued by means of activities which breach democratic principles or the fundamental rights of ORG . Consequently , and as regards the aspect which is of particular interest here , the PERSON lists as grounds for illegality DATE that is to say , acts – of political parties which , through their activities , and not through the ultimate aims proclaimed in their manifestos , fail to satisfy the requirements of LAW , which the impugned LAW merely mentions .

... Secondly , and most importantly , it is clear that the principles and values to which the PERSON refers can be none other than those proclaimed by LAW , and that their content and scope depend on the meaning arising out of the interpretation of the positive constitutional provisions as a whole . Thus , in our system , LAW can only be principles specific to the democratic order arising out of the institutional and normative fabric woven by LAW , the actual functioning of which leads to a system of powers , rights and balances giving form to a variant of the democratic model which is precisely that assumed by LAW in establishing GPE as a social and democratic ORG governed by the rule of law ( LAW ) . ”

As regards the applicant parties’ argument that the provisions of the PERSON , namely some of the cases referred to in section CARDINAL(CARDINAL ) ( tacit support , for example ) , established a “ militant democracy ” in breach of the fundamental rights of freedom of ideology , participation , expression and information , ORG stated :

“ ... the system established by DATE of LAW PERSON must firstly be described . The first paragraph refers not to a positive adherence of any kind but to simple respect for constitutional values , which must be demonstrated by political parties when engaging in their activities and which is compatible with the broadest ideological freedom . Paragraph CARDINAL provides that a political party may be declared illegal only ‘ when as a result of its activities , it infringes democratic principles , in particular when it seeks thereby to impair or to destroy the system of liberties , to hinder or to put an end to the democratic system by repeatedly and seriously engaging in any of the conduct described below’ . Lastly , sub - paragraphs ( a ) , ( b ) and ( c ) list the general criteria for a party to be declared illegal on account of its activities ... As regards paragraph CARDINAL of section CARDINAL of the PERSON , the flawed drafting of its introduction might suggest that the instances of behaviour described by that provision are in addition to those specified in the preceding paragraph and that they must therefore be interpreted separately . However , an interpretation of these CARDINAL provisions taken together and an interpretation of the whole section which contains them show that the instances of behaviour described in paragraph CARDINAL of section CARDINAL have the general features described in paragraph CARDINAL of the same section . The instances of behaviour referred to in section GPE ) of the PERSON merely specify or clarify the principal causes of illegality set out in general terms in section CARDINAL(CARDINAL ) of the PERSON . A separate interpretation and application of such conduct can be done only on the basis of the cases provided for in section CARDINAL(CARDINAL ) .

That having been said , while it is not for ORG to determine whether or not mere failure to condemn [ terrorist acts ] can be construed as implicit support for terrorism , it is clear that symbolic actions can be used , in certain circumstances , to legitimise terrorist acts or excuse or minimise their anti - democratic effects and implicit violation of fundamental rights . In such circumstances it is plainly impossible to speak of a violation of the right to freedom of expression .

The same can be said , in general , of sub - paragraph ( c ) of section ORG ) of the PERSON , which provides : ‘ where , through its activities , it repeatedly and seriously violates democratic principles or seeks to impair or to destroy the system of liberties or to hinder the democratic system or to put an end to it by means of the conduct referred to in section CARDINAL.’ It must also be stated in this regard that that provision concerns only the activities of political parties and in no way extends to their aims or objectives . The wording of that provision shows , therefore , that only those parties which through their activities rather than their ideology effectively and proactively seek to ‘ impair or to destroy the system of GPE are liable to be dissolved . ”

As regards the NORP government ’s complaint that the dissolution measure prescribed by law was disproportionate , ORG stated :

“ ... taken separately , none of the conduct described in section CARDINAL of the PERSON can entail a party ’s dissolution . In order for that measure to be pronounced , as stated in section CARDINAL(CARDINAL ) , the conduct in question must be engaged in ‘ repeatedly and PERSON . Secondly , it must be pointed out that the existence of a party which , through its activities , collaborates with or supports terrorist violence , jeopardises the survival of the pluralist order proclaimed by the LAW and that , faced with that danger , dissolution would appear to be the only sanction capable of repairing the damage done to the legal order . Lastly , it must be stressed that LAW contains a definition of a party . According to LAW , a party may only be considered a party if it is the expression of political pluralism . Consequently , it is quite acceptable , constitutionally , for a party whose activities undermine pluralism and to a greater or lesser extent destabilise the democratic order , to be dissolved . Similarly , ORG has considered that even though the margin of appreciation left to GPE must be a narrow one where the dissolution of political parties is concerned , where the pluralism of ideas and parties inherent in democracy is in danger , a ORG may forestall the execution of a policy at the root of that danger [ PERSON ( ORG ) and Others v. GPE , nos . ORG , CARDINAL , ORG and CARDINAL , DATE ] .

... it is not sufficient to establish the existence of just one of the acts described by the LAW . On the contrary , those acts need to be engaged in ‘ repeatedly and PERSON ( section CARDINAL(CARDINAL ) ) or ‘ repeatedly or PERSON ( section GPE ) ) . ... To conclude , [ the relevant provisions ] describe particularly serious conduct and establish as grounds for dissolution only those which are manifestly incompatible with the peaceful and lawful means which are an essential part of the process of political participation to which the LAW requires political parties to lend their qualified support . ... The criteria established by the case - law of ORG as regards the dissolution of political parties have therefore been complied with ( ORG of GPE and Others v. GPE , DATE , Reports of Judgments and Decisions DATE ; ORG and Others v. GPE , CARDINAL DATE , Reports CARDINAL ; ORG ( ÖZDEP ) v. GPE [ ORG ] , no . CARDINAL , ORG CARDINAL-VIII ; PERSON ( ORG ) and Others v. GPE , nos . ORG , ORG and CARDINAL , DATE and [ ORG ] , ECHR CARDINALII ; PERSON and Others v. GPE , nos . CARDINAL , CARDINAL/CARDINAL and CARDINAL/CARDINAL , ECHR CARDINALII ; and ORG ( DEP ) of GPE v. GPE , no . GPE , DATE ) . That case - law states that in order to comply with ORG , the dissolution of a party must satisfy certain criteria , namely : ( a ) the law must include the circumstances and causes of dissolution ( that criterion is clearly satisfied by the rules at issue , since they are set out in a formal law ) ; ( b ) the aim pursued must be legitimate ( which , as indicated above , consists in the instant case of protecting the democratic process of political participation through the exclusion of any associative organisation which could be likened to a party exercising an activity not falling within the constitutional definition of political parties ) ; and ( c ) the dissolution must be ‘ necessary in a democratic society’ ( demonstrated in the context of the foregoing analysis of the specific causes of dissolution provided for by law ) .

... The fact that convicted terrorists are regularly appointed to positions of leadership or entered on lists of candidates for election may appear to constitute an expression of support for terrorist methods which goes against the obligations imposed by LAW on all political parties . Furthermore , the fact that such a practice can be taken into account only if the convicted terrorists have not ‘ publicly rejected terrorist aims and ORG can not be interpreted as an obligation to disavow earlier activities . The provision in question [ section CARDINAL(CARDINAL)(c ) ] is of prospective effect only and applies only to political parties which are led by convicted terrorists or whose candidates are convicted terrorists . It lays down as a cause of dissolution the regular use of people who may legitimately be assumed to sympathise with terrorist methods rather than with any ideas and programmes that terrorist organisations might seek to implement .

Lastly , as regards the NORP government ’s complaint that the principle of non - retrospectivity in relation to section CARDINAL(CARDINAL ) of the PERSON and paragraph CARDINAL of the sole transitional provision had been violated , ORG held :

“ For the purposes of applying section CARDINAL(CARDINAL ) of the PERSON , which lists the factors that can be taken into account in assessing and characterising activities that may give rise to the dissolution of a political party , the aforementioned paragraph characterises as unlawful ‘ the establishment , on DATE or following the date of entry into force , of a political party which pursues the activities of another party or succeeds that party with a view to evading application of the provisions of this PERSON in respect of it’ . Worded as it is , that provision can not be held to be unconstitutional as it is quite clear that its sole purpose is to enable section CARDINAL(CARDINAL ) of the PERSON to be applied ‘ to activities pursued after the entry into force of this Institutional Law’ , as stated therein . In no circumstances does it make provision for the judging of activities and acts prior to the PERSON , since only those subsequent to the entry into force of the PERSON are deemed to be relevant .

In other words , the PERSON specifically states that the various causes that may lead to dissolution of a party may be taken into account only after its entry into force . The activities considered separately and ‘ the continuing nature or repetition’ of the activities mentioned in section ORG ) , to which the transitional provision refers , are subsequent to the entry into force of the PERSON . That said , for the purposes of determining the significance of those activities and assessing their relevance to the overall conduct of the party concerned ( and for that purpose only , since to take account of conduct pre - dating the effective date of the PERSON in order to justify a declaration of unlawfulness would be unconstitutional because it would constitute a breach of the principle of non - retrospectivity enshrined in LAW ) , it is perfectly possible to take into consideration what the PERSON refers to as the ‘ trajectory’ ( section CARDINAL(CARDINAL ) ) of the party in question , which trajectory could encompass acts prior to the entry into force of the PERSON , but that can not in any way be considered as a retrospective effect under LAW . ”

ORG also rejected the complaints based on the principle of non bis in idem , the lack of foreseeability and the exceptional nature of the PERSON , the specific features of the judicial proceedings and the allegations concerning the system for founding and registering political parties . Accordingly , it dismissed the applicant parties’ claims , stating in paragraph CARDINAL of its reasoning that sections GPE ) , CARDINAL ) , CARDINAL ) and ( CARDINAL ) and paragraph CARDINAL of the sole transitional provision of the PERSON were constitutional only if “ interpreted in accordance with the terms set out in CARDINAL , DATE , DATE , DATE , DATE , DATE and CARDINAL ” of the reasoning of its judgment .

NORP The government of ORG subsequently lodged an application with ORG ( no . CARDINAL ) , which was declared inadmissible on the ground of incompatibility ratione personae on DATE .

Meanwhile , by a decision of CARDINAL DATE delivered in the context of criminal proceedings for illegal association ( Article CARDINAL of the NORP LAW ) , central investigating judge no . CARDINAL at FAC had ordered the suspension of GPE ’s activities and the closure , for DATE , of any headquarters and offices that could be used by ORG and GPE . The same measure was applied to EH , which is not an applicant before the ORG .

On DATE , implementing an agreement adopted by ORG on DATE , the Attorney - General ( Abogado del Estado ) lodged an application with ORG on behalf of the NORP government for the dissolution of the political parties ORG , GPE and GPE on the ground that they had breached the new ORG on account of various acts which conclusively demonstrated conduct inconsistent with democracy , constitutional values , democratic practice and the rights of citizens .

On DATE , ORG ( ORG ) also filed an application with ORG with a view to the dissolution of the political parties ORG , GPE and GPE in accordance with sections CARDINAL et seq . of the PERSON . In his application , he asked ORG to find that the parties in question were illegal , and order that they be removed from the register of political parties , that they immediately cease their activities and that the effects of the PERSON be extended to any party newly created in breach of the PERSON or succeeding any of the parties concerned , that their assets be liquidated and that they be dissolved in accordance with section CARDINAL(CARDINAL ) of the PERSON .

On DATE ORG sought the referral of a preliminary question to ORG concerning the constitutionality of the PERSON as it was of the view that the PERSON as a whole , and several of the sections thereof taken separately , violated the rights to freedom of association , freedom of expression and freedom of thought , and the principles of lawfulness , legal certainty , non - retrospectivity of less favourable criminal laws , proportionality and non bis in idem , as well as the right to take part in public affairs .

By a unanimous judgment of DATE , ORG refused to refer ORG ’s question to ORG , pointing out that that organisation ’s challenges to the constitutionality of the PERSON had already been examined and rejected in ORG judgment of DATE . It declared PERSON , GPE and GPE illegal and pronounced their dissolution under sections CARDINAL(CARDINAL ) and ( CARDINAL ) of the PERSON on the ground that they were part of “ a terrorist strategy of ‘ tactical separation’ ” . It considered that significant similarities between the CARDINAL parties at issue , and between them and the terrorist organisation ORG – “ CARDINAL organisations having substantially the same ideology ... and , moreover , tightly controlled by that terrorist organisation DATE had been established . It concluded that in reality there existed a “ single entity , namely , the terrorist organisation ORG , hidden behind an apparent plurality of legal entities created at different times according to an ‘ operational succession’ devised in advance by that organisation ” . It also liquidated the assets of the parties at issue , in accordance with section CARDINAL(CARDINAL)(c ) of the same PERSON .

ORG noted in its judgment that , while political parties constituted the essential foundations of political pluralism , they had to engage in their activities and pursue their aims and objectives in accordance with the law and democratic processes , stating that activities involving the use of violence or restricting the fundamental rights of others could not be tolerated . ORG referred to the NORP constitutional system , which , in its view , unlike other legal systems , did not constitute a model of “ militant democracy ” , since the only condition imposed on the expression of differences was respect for the rights of others . It pointed out that the PERSON recognised that any project or objective was constitutional provided that it was not “ pursued by means of activities which breach[ed ] democratic principles or the fundamental rights of citizens ” . In that regard , it pointed out that , by law , political parties were liable to be declared illegal only on the basis of “ activities ” consisting of serious and repeated conduct . In the instant case , according to ORG , the calls to violence justifying the restriction of the freedoms of the parties at issue stemmed from a deliberate apportionment of tasks between terrorism and politics , ORG devising “ justification of the need for terrorism as one of the functions ” entrusted to ORG .

Bearing in mind the historical and social context of the fight against terrorism in GPE , ORG held that the terrorist organisation ORG and its satellite organisation , PERSON ( “ ORG ” ) , had been directing ORG since its creation . To reach that conclusion , it relied on evidence demonstrating the existence of hierarchical links between the CARDINAL organisations and revealing , in particular , that ORG , as ORG ’s delegate , had controlled the process of appointing the most senior members of ORG and its successors ( EH and GPE ) and had participated in it . ORG held that ORG had been created in response to ORG ’s wish to split armed activity and mass activity “ organically and structurally ” , which resulted in “ clear hierarchical submission ” of the parties at issue to the terrorist organisation ORG . In that connection , it referred to a ORG internal document which read as follows :

“ ORG ... considers that armed struggle in association with mass struggle and institutional struggle – the latter serving the former – is the key to the advance and triumph of the revolution ; mass struggle likewise requires an historical alliance of ORG , the physical manifestation of which is ORG . ”

As regards the “ operational succession ” held to exist between the CARDINAL political parties that had been declared illegal , ORG relied on the fact that the people occupying posts of responsibility within the CARDINAL organisations – notably their spokesperson , ORG and belonging to different parliamentary groups , were the same . It also took account of the existence of premises used by all the parties at issue . As regards links between the applicant parties and the terrorist organisation ORG , it noted that several of their members , in particular their spokesperson , ORG , had been convicted of terrorism - related offences .

ORG held that the evidence set out below , subsequent to the date of entry into force of the PERSON , showed that the applicant political parties were instruments of ORG ’s terrorist strategy .

– On DATE Batasuna had refused to appoint representatives to the NORP parliamentary committee responsible for the situation and needs of victims of terrorism , as it considered it to be “ political , manipulated and biased ” .

– On DATE , reacting to the decision of central investigating judge no . CARDINAL at FAC by which GPE had been declared civilly liable for damage caused by street violence ( kale borroka ) , ORG , the spokesperson for that organisation , had exhorted the NORP people to respond “ energetically to this new attack ” and had criticised the decision for having provoked a “ serious and anti - democratic situation ” .

– On DATE , during a commemoration of the DATE battle of ORG , ORG had made the following statement :

“ We must continue to work and to struggle , either within or outside the law . The reality is that we will not falter because we are at a point in history where the process we have undertaken must be rendered irreversible . ”

– On DATE the mayor and a GPE councillor of the municipality of PERSON had taken part in a demonstration in support of ORG terrorists living in GPE .

– On DATE , at a gathering outside the GPE navy command , a GPE municipal spokesperson , referred to as ORG , had explained that the purpose of that demonstration was to let the ORG authorities know “ that they could not move around with impunity in GPE Herria ” .

– On DATE J.E.B. , ORG spokesperson in the municipality of PERSON , had stated that GPE “ did n’t want ORG to stop killing , but did not want PERSON to have recourse to any kind of violence and wanted those who engaged in it to cease to exist ” .

– At a plenary session of the municipal council on DATE Batasuna had refused to condemn the campaign of threats against councillors of ORG ( ORG ) in the municipality of ORG .

– At a press conference on DATE concerning the potential handover to GPE of GPE , an ORG member convicted in GPE , the mayor and the chairman of ORG of the municipality of PERSON , GPE and GPE , GPE members , had declared that they supported ORG and “ all those who [ were ] in the same situation ” .

– GPE and its leaders had refused to condemn the ORG attack of CARDINAL DATE in which CARDINAL people had died . In that regard , during a press conference in GPE A.O. had described that event as a “ painful consequence ” of the failure to solve the “ political conflict ” in ORG and had accused the NORP Prime Minister [ then PERSON ] “ of bearing the greatest responsibility ” for “ what [ had happened ] [ at ] that time and what [ might ] happen in future ” .

– Municipalities run by GPE and that party ’s website had used an anagram of “ PERSON ” , an organisation that had been declared illegal by central investigating judge no . CARDINAL at FAC and was on the NORP list of terrorist organisations ( ORG ) .

– At a demonstration organised by GPE in GPE on DATE and run by GPE ’s leaders ORG , ORG , slogans supporting ORG prisoners and threatening expressions such as “ borroka da bide bakarra ” ( the struggle is the only way ) , “ zuek faxistak zarete terroristak ” ( you , the NORP , are the real terrorists ) or “ gora ORG militarra ” ( long live ORG military ) had been used .

– On CARDINAL and DATE , GPE - run town halls had put up placards on their facades supporting terrorism or those engaging in terrorism , alluding to the transfer of “ NORP prisoners to the NORP Country ” and showing photographs of several terrorists .

– At a GPE press conference held in GPE on DATE , ORG had criticised the “ NORP ORG ’s genocide strategy ” and proclaimed that the NORP people were going to “ organise themselves ” and “ fight ” so that some “ little NORP ” could never again tell NORP what their institutions should be . He had also warned the government of ORG ( nationalist government coalition ) that if it took part in closing down GPE headquarters , the result would be “ an unwanted scenario ” , expressions which had been interpreted DATE by the media as “ a threat against the NORP executive ” .

– During an interview with the newspaper Egunkaria on DATE , ORG , ORG representative in the NORP parliament , had stated that “ ORG [ did ] not support armed struggle for the fun of it , but that [ it was ] an organisation conscious of the need to use every means possible to confront the ORG ” .

– On DATE at a GPE meeting held in GPE following the demonstration organised by that party against its dissolution , PERSON had criticised the leaders of ORG for abiding by NORP law , accusing them of lacking “ national dignity ” . He had also encouraged the participants to “ go out into the street and respond vigorously ” .

– Municipalities governed by the parties in question had advocated terrorist activities , as evidenced by the fact that CARDINAL ORG terrorists had been made honorary citizens ( hijo predilecto ) by the municipalities of LAW and PERSON .

– Since DATE GPE council representatives in GPE and ORG had been committing acts of harassment against the representatives of non - nationalist parties , thus contributing to a climate of civil confrontation .

– Municipalities governed by ORG had displayed sketches and placards calling for a struggle against the ORG , against representatives of ORG power , against other political parties or members of those parties , notably the Prime Minister of the NORP government and the leaders of ORG and ORG .

– After the entry into force of the PERSON , the CARDINAL parties at issue had continued to pursue the same strategy of complementing , on a political level , the actions of the terrorist organisation ORG in the context of a jointly organised “ operational succession ” .

Relying on the above evidence , ORG held that the activity of the applicant political parties , as manifested through conduct in line with a strategy predefined by the terrorist organisation ORG , consisted of “ providing assistance and political support to the actions of terrorist organisations with the aim of overthrowing the constitutional order or seriously disturbing the public peace ” , within the meaning of section CARDINAL(CARDINAL)(c ) of the PERSON . It concluded that the conduct of which the applicant parties had been accused corresponded to the cases referred to in sub - paragraphs ( a ) , ( b ) , ( d ) , ( f ) and ( h ) of paragraph CARDINAL of section CARDINAL of that PERSON . It stated firstly that some of the conduct described , such as GPE ’s demonstration in GPE , where pro - ORG slogans had been heard , could be characterised as explicit political support for terrorism , while other conduct , such as the refusal of GPE and its leaders to condemn the ORG attack of CARDINAL DATE , sought to “ justify terrorist actions and minimise their importance and the violation of the fundamental rights arising therefrom ” . In that connection , ORG stated :

“ In the constitutional context , the existence of political parties which , from an intellectual point of view , fail to take a clear and unequivocal stance against terrorist activities or which , with calculated ambiguity , systematically seek to conceal the fact that they do not disavow criminal acts by officially deploring the consequences thereof without , however , censuring in any way the barbaric behaviour of those who cause such acts through the use of violence to achieve their objectives , can not be tolerated .

For the purposes of these proceedings , the repeated strategic and systematic silence of a political party concerning terrorist activities can only be interpreted , from a political and constitutional viewpoint , as a clear sign of their ‘ acceptance by GPE or ‘ implicit PERSON , that is , as their alignment with the arguments of the perpetrators of those criminal actions and the tacit acceptance of violence as a means of achieving set objectives which , in our constitutional system , can only be achieved by peaceful means . ”

The court held , secondly , that other conduct of which the applicant parties had been accused , such as the harassment of representatives of non - nationalist parties in the municipalities of GPE and ORG , had contributed to the emergence of a climate of civil confrontation intended to intimidate opponents of terrorism and deprive them of their freedom of opinion .

It observed , thirdly , that conduct such as publicly describing ORG prisoners as political prisoners or using the anagram of “ PERSON ” proved that the parties at issue were using symbols reflecting terrorism or violence . It noted , lastly , that the applicant parties had also taken part in activities in praise of terrorist activities .

Turning to the need for and the proportionality of the dissolution of the applicant parties , ORG pointed out that it was taking account of the text of the Convention and of the ORG ’s case - law , which would serve as a guide in the interpretation of fundamental constitutional rights , in accordance with LAW of LAW . It considered that , in view of the applicant parties’ frequent calls to violence , as established by the above - mentioned evidence , the measure to dissolve the applicant parties had been justified for the purposes of protecting the fundamental rights of others , “ a necessary element of democracy ” . ORG referred in particular to the ORG ’s judgment in PERSON ( ORG ) and Others v. GPE ( [ ORG ] , ORG . ORG , CARDINAL , ORG and CARDINAL , ECHR CARDINALII ) , considering that that judgment imposed on parties claiming to exercise functions in a democratic society a real legal duty to distance themselves from any ambiguous or unclear messages as to the use of violence ( ibid . , § CARDINAL ) . It pointed out furthermore that the calls to violence at issue in the case before it appeared to be more explicit than those at issue in the case submitted to the ORG .

GPE and ORG lodged CARDINAL amparo appeals with ORG against the judgment of ORG .

NORP In their appeals , they complained firstly of the lack of impartiality of the President of ORG , who had been the reporting judge in the proceedings leading to their dissolution even though he was the president of ORG , the body which had issued a favourable report on the bill resulting in the PERSON at issue . They submitted that the conflation of jurisdictional and consultative functions in CARDINAL person had resulted in a loss of objective impartiality . GPE relied in that regard on LAW ( right to a fair hearing before an independent and impartial tribunal ) .

Secondly , the applicant parties alleged that the guarantees of a fair trial had not been rigorously observed in so far as the dissolution of GPE had been based , inter alia , on the conduct attributed to certain PERSON and PERSON municipal councillors , who had made an alleged member of ORG and an ORG member who had been convicted and had served his sentence honorary citizens ( hijo predilecto ) , facts which had been established ex parte , after completion of the phase of the proceedings during which new evidence could be introduced and without the applicant parties having been able to defend themselves against such allegations .

They complained , thirdly , of a violation of the presumption of innocence , submitting that the facts deemed to have been proven in the judgment of ORG had been based on a single press release and that GPE and its members had been deemed to have carried out acts attributable to another political organisation , namely EH . Moreover , they criticised the judgment of DATE for having considered as established fact that ORG had been created on the basis of an agreement between the leaders of ORG and ORG , and that ORG , GPE and GPE were in fact one and the same organisation which had been assigned certain functions by ORG and which acted under the instructions of the latter , while those allegations had actually been based on documents having no probative value and on the statements of expert witnesses working for the NORP government .

Fourthly , and lastly , the applicant parties considered that their right to freedom of expression , thought and association had been breached as a result of their dissolution .

By CARDINAL unanimous judgments of DATE ORG dismissed the appeals .

In the judgment on ORG ’s amparo appeal , ORG repeated the arguments contradicting the applicant parties’ submissions concerning “ militant democracy ” set out in its judgment of DATE . It pointed out that “ any project or objective [ was ] constitutional provided that it [ was ] not pursued by means of activities which breach[ed ] democratic principles or the fundamental rights of citizens ” . It also pointed out that “ the constitutionality of section CARDINAL of the PERSON ha[d ] been recognised by judgment CARDINAL ” and that “ the answers to the objections raised by GPE as to the constitutionality [ of the conduct described by the provisions of the PERSON at issue ] could be found in the legal bases of that LAW ” .

ORG stated :

“ The refusal of a political party to condemn terrorist attacks can be seen , in certain cases , as ‘ [ ... ] tacit political support for ORG [ section CARDINAL(CARDINAL)(a ) ORG ] , or ‘ legitimising terrorist actions for political ends’ [ section CARDINAL(CARDINAL)(a ) PERSON ] , in so far as it may excuse terrorism or minimise the significance thereof ... The failure to condemn terrorist actions also constitutes a tacit or implicit manifestation of a certain attitude towards terror . ... Against a backdrop of terrorism that has been in place for DATE , with those responsible always legitimising terror by claiming equality between the types of forces fighting each other and by presenting it as the only possible solution to an allegedly historical conflict , the refusal of a party to condemn a specific terrorist attack , which undeniably reflects that party ’s wish to disassociate itself from the condemnatory stance taken by other parties in relation to such acts , is all the more significant since it reflects the position of a party which has sought to pass off the terrorist phenomenon as an inevitable reaction to the past and unjust aggression of a terrorised ORG . ... Furthermore , ... the refusal to condemn [ terrorist acts ] , combined with serious and repeated acts and conduct , indicates an accommodation with terror which runs counter to organised coexistence in the context of a democratic ORG . ... It must therefore be concluded that it would not appear to be unreasonable or erroneous to take account of facts judicially established in proceedings having observed all the guarantees covering the grounds for dissolution laid down by the PERSON – whose unconstitutionality in abstracto was ruled out by ORG judgment no . DATE thus ruling out any possibility of a breach of LAW , and that no substantive fundamental right , such as the right of political association ( Articles CARDINAL and CARDINAL of the LAW ) , the right to freedom of conscience ( LAW ) and the right to freedom of expression ( LAW ( a ) of LAW ) has been breached . ”

Lastly , in the reasoning of its judgment ORG pointed out that in its appeal , GPE had literally alleged that the effect of the PERSON “ had been to deprive ideologies linked to terrorism and violence of any possibility of developing lawfully , in breach of the procedural definition of democracy ” , and had argued that the PERSON at issue declared unlawful “ the mere fact of providing political and ideological support to the actions of terrorist organisations with the aim of overthrowing the constitutional order ” . It held that this “ link with terrorism and violence ” ... “ fell outside the constitutionally legitimate scope of the exercise of freedom of association and freedom of expression and could therefore be prohibited by the democratic legislature ” .

As regards ORG amparo appeal , ORG again referred to its judgment of CARDINAL DATE , in which it had indicated that the various causes of dissolution of parties could only be taken into account as of the entry into force of the PERSON , stating , however , that “ for the purpose of determining the significance [ of the activities listed by the PERSON ] and assessing their importance having regard to the overall conduct of the party at issue ( and for such purposes only , since to take account of conduct prior to the entry into force of the LAW in order to justify a declaration of illegality [ would have been ] unconstitutional in that it [ would have ] breached the principle of non - retrospectivity enshrined in LAW ) , it [ was ] perfectly possible to take into consideration what the PERSON called the ‘ trajectory’ ( section CARDINAL(CARDINAL ) ) of the party at issue which could encompass conduct prior to the entry into force of the PERSON , without it being possible in any circumstances to consider that to be a case of retrospective application prohibited by LAW . ORG pointed out that the applicant party had not been dissolved because of acts pre - dating the entry into force of the PERSON or conduct attributable to other parties , but because it had been held that GPE , ORG and EH “ constituted ‘ successive units’ of a single reality – namely a political organisation used as a tool by a terrorist group for unlawful purposes – , that the successive forms assumed by a single political party had de facto been dissolved , and that the dissolution pronounced by ORG had been based on subsequent facts stated as being entirely attributable to the applicant party on account of the fact that ORG had found the CARDINAL dissolved parties to be materially identical ” .

Lastly , ORG dismissed the complaints of lack of impartiality and failure to comply with the principle of adversarial proceedings as lacking any constitutional basis .

On DATE ORG ended the ceasefire that it had declared on DATE . Since that date , several fatal attacks have been carried out in GPE .

“ Political parties are the expression of political pluralism ; they contribute to the formation and expression of the will of the people and are an essential instrument for political participation . Their creation and the exercise of their activities are free in so far as they respect the LAW and the law . Their internal structure and their functioning must be democratic . ”

“ CARDINAL . The right of association is recognised .

Associations which pursue ends or use means legally defined as criminal offences are illegal .

Associations set up on the basis of this section must be entered in a register for the sole purpose of public knowledge .

Associations may only be dissolved or have their activities suspended by virtue of a court order stating reasons .

Secret and paramilitary associations are prohibited . ”

“ CARDINAL . A ORG comprising the President of ORG , the different divisional presidents and the most senior and the most recently appointed judge of each division shall examine :

( i ) applications for review of judgments ... ;

( ii ) challenges [ to the President of ORG , the different divisional presidents , or CARDINAL senior divisional judges ] ;

( iii ) civil liability claims against divisional presidents ... ;

( iv ) investigation and adjudication of claims against divisional presidents ;

( v ) allegations of judicial error imputed to a division of ORG ;

( vi ) procedures for a declaration of illegality and consequent dissolution of political parties , pursuant to ORG no . CARDINAL/CARDINAL of DATE on political parties ;

“ CARDINAL . Political parties may freely engage in their activities . In engaging in those activities , they shall respect the constitutional values expressed in democratic principles and human rights . They shall perform the functions attributed to them under LAW democratically and in full respect for pluralism .

A political party shall be declared illegal when , as a result of its activities , it infringes democratic principles , in particular when it seeks thereby to impair or to destroy the system of liberties , to hinder or to put an end to the democratic system , by repeatedly and seriously engaging in any of the conduct described below :

( a ) systematically violating fundamental freedoms and rights by promoting , justifying or excusing attacks on the life or integrity of the person , or the exclusion or persecution of an individual by reason of ideology , religion , beliefs , nationality , race , sex or sexual orientation ;

( b ) fomenting , encouraging or legitimising violence to be used as a means to achieve political ends or as a means to undermine the conditions that make the exercise of democracy , pluralism and political freedoms possible ;

( c ) providing assistance and political support to the actions of terrorist organisations with the aim of overthrowing the constitutional order or seriously disturbing the public peace , subjecting the public authorities , certain persons or certain groups in society or the population in general to a climate of terror , or contributing to increasing the effects of terrorist violence and the resulting fear and intimidation .

The conditions described in the preceding paragraph shall be deemed to have been met where there has been a repetition or an accumulation , by the political party , of CARDINAL or more of the following instances of behaviour :

( a ) giving express or tacit political support to terrorism by legitimising the use of terrorist actions for political ends outside peaceful and democratic channels , or by excusing them or minimising their significance and the ensuing violation of human rights ;

( b ) accompanying violent action with programmes and activities promoting a culture of civil conflict and confrontation associated with the actions of terrorists or those who resort to intimidation ; pressurising , neutralising or socially isolating anyone opposing that violent action , by forcing them to live with a DATE threat of coercion , fear , exclusion or deprivation of freedom and depriving them in particular of their freedom to express their opinions and to participate freely and democratically in public affairs ;

( c ) including regularly in its directing bodies or on its lists of candidates for election persons who have been convicted of terrorist offences and who have not publicly renounced terrorist methods and aims , or maintaining among its membership a significant number of militants who are also members of organisations or bodies linked to a terrorist or violent group , except where it has taken disciplinary measures against them with a view to their exclusion ;

( d ) using as instruments of its activity , jointly with its own or in place thereof , symbols , slogans or items which represent or symbolise terrorism or violence and conduct associated with terrorism ;

( e ) conceding to terrorists or to any person collaborating with terrorists the rights and prerogatives which the legal system – and in particular electoral law – grants to political parties ;

( f ) collaborating habitually with entities or groups which systematically act jointly with a terrorist or violent organisation or which defend or support terrorism or terrorists ;

( g ) supporting , through government institutions , the entities referred to in the preceding paragraph through administrative , financial or any other measures ;

( h ) promoting or covering activities the object of which is to reward , pay tribute to or honour terrorist or violent actions or those who commit them or collaborate or participate in them ;

( i ) covering disruptive , intimidatory or socially coercive actions that are linked to terrorism or violence .

NORP In assessing and evaluating the activities to which this section refers and the continuing nature or repetition thereof in the context of the trajectory of a political party , even if that party has changed its name , account will be taken of the party ’s decisions , documents and communiqués , its bodies and its parliamentary and municipal groups , the conduct of its public activities and the way in which it calls on citizens to mobilise , demonstrations , interventions and public engagements of its leaders and members of its parliamentary and municipal groups , the proposals formulated within or outside institutions as well as the significant repetition , by its members or candidates , of certain behaviour .

Account will also be taken of administrative penalties imposed on the political party or its members and any criminal convictions of its leaders , candidates , elected officials or members for the offences listed in Titles XXI to XXIV of the Spanish Criminal Code and which have not resulted in disciplinary measures leading to the exclusion of the parties concerned . ”

NORP The judicial dissolution of a political party shall be decided by the relevant court in the following cases :

( a ) where the party is considered to be an illegal association for the purposes of the NORP LAW ;

( b ) where it continuously , repeatedly and seriously breaches the obligation imposed by sections CARDINAL and CARDINAL of LAW to have a democratic internal structure and to operate democratically ;

( c ) where , as a result of its activities , it repeatedly and seriously infringes democratic principles or seeks to impair or to destroy the system of liberties or to hinder or to put an end to the democratic system by means of the conduct referred to in section CARDINAL .

The cases provided for in sub - paragraphs ( b ) and ( c ) of paragraph CARDINAL of this section shall be examined by the special ORG created by LAW of the LOPJ , in accordance with the procedure laid down in the following section of LAW , which derogates from the LOPJ . ”

“ CARDINAL . NORP The government or the public prosecutor may trigger the procedure to have a political party declared illegal and to have it dissolved ...

No appeal shall lie against a judgment delivered by the special Chamber of ORG pronouncing dissolution or rejecting an application for dissolution save , as the case may be , an amparo appeal before ORG ... ”

For the purposes of application of the provisions of paragraph CARDINAL of section CARDINAL to activities subsequent to the entry into force of LAW , the constitution , on a date immediately prior or subsequent to that date of entry into force , of a political party carrying on the activities of another party or succeeding it with the aim of avoiding application to it of the provisions of this PERSON , shall be deemed to constitute a fraudulent evasion of statutory provisions . This will not constitute an obstacle to the application of this PERSON and sections CARDINAL of LAW may be applied to the party concerned . The special ORG shall be vested with power to assess continuation or succession and fraudulent intent . ”

“ ... CARDINAL . PERSON Askatasuna / Tierra Vasca y Libertad / Basque Fatherland and ORG ) [ The following organisations are part of the terrorist group ORG : K.a.s . , Xaki , PERSON , ORG , PERSON pro - amnistía , GPE , GPE ( ORG . PERSON , ORG ] . ”

“ ... CARDINAL . The ORG considers that the issue of restrictions on political parties is by nature a very complex one . However , the tragic events which took place in GPE on DATE should encourage us to reflect still further on the threats to democracy and freedoms posed by extremism and fanaticism .

In conclusion and in the light of the foregoing , the ORG calls on the governments of member ORG to comply with the following principles :

( ii ) restrictions on or dissolution of political parties should be regarded as exceptional measures to be applied only in cases where the party concerned uses violence or threatens civil peace and the democratic constitutional order of the country ;

( v ) a political party should be banned or dissolved only as a last resort , in conformity with the constitutional order of the country , and in accordance with the procedures which provide all the necessary guarantees to a fair trial ;

“ CARDINAL . For the purposes of this Convention , ‘ public provocation to commit a terrorist offence’ means the distribution , or otherwise making available , of a message to the public , with the intent to incite the commission of a terrorist offence , where such conduct , whether or not directly advocating terrorist offences , causes a danger that CARDINAL or more such offences may be committed .

Each ORG shall adopt such measures as may be necessary to establish public provocation to commit a terrorist offence , as defined in paragraph CARDINAL , when committed unlawfully and intentionally , as a criminal offence under its domestic law . ”

“ CARDINAL . Each Party shall adopt such measures as may be necessary to establish as a criminal offence under its domestic law : ...

( c ) NORP contributing to the commission of one or more offences as set forth in LAW by a group of persons acting with a common purpose . Such contribution shall be intentional and shall either :

( i ) be made with the aim of furthering the criminal activity or criminal purpose of the group , where such activity or purpose involves the commission of an offence as set forth in Articles CARDINAL to CARDINAL of this Convention ; or

( ii ) be made in the knowledge of the intention of the group to commit an offence as set forth in Articles CARDINAL to CARDINAL of this Convention .

LAW entities

“ CARDINAL . Each Party shall adopt such measures as may be necessary , in accordance with its legal principles , to establish the liability of legal entities for participation in the offences set forth in DATE .

Subject to the legal principles of the ORG , the liability of legal entities may be criminal , civil or administrative .

Such liability shall be without prejudice to the criminal liability of the natural persons who have committed the offences . ”


Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicant , PERSON , is a NORP national who was born in DATE and lives in the city of GPE . She was represented before the ORG by Mr PERSON , a legal specialist practising in that city .

ORG ( “ the Government ” ) were represented by Ms PERSON , former Representative of GPE at the ORG .

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

On DATE the applicant ’s sister passed away . According to her will , the sister bequeathed her apartment to the applicant . It appears that at that time the applicant resided in the apartment on the basis of a rent agreement dated DATE and valid for a term of DATE .

Thereafter the applicant was involved in court proceedings against other members of her family over the validity of the will and rights to the apartment .

By first instance judgment of CARDINAL DATE the Pushkinskiy ORG of the city of GPE ( “ the ORG ” ) , composed of judge PERSON and lay assessors PERSON and PERSON , declared the sister ’s will invalid on the ground of her insanity .

The judgment was taken on the basis of oral evidence given by the parties and CARDINAL witnesses , including the doctors of the applicant ’s sister , as well the sister ’s medical records and CARDINAL medical examination reports .

On DATE GPE ( “ the GPE ” ) upheld the judgment on appeal .

The applicant did not question the court composition in her case either before the first instance or on appeal .

On DATE ORG examined the eviction request of the applicant ’s relatives and decided to evict the applicant .

The court referred to the judgment of CARDINAL DATE and the rent agreement of DATE and noted that the agreement expired on DATE and that the applicant did not have any right to live in the apartment any longer . The court also noted that the owner of the apartment and his family had not owned any other apartments and had the intention of residing in the apartment themselves and that the applicant was not in need of a residence , since she owned a house in the LOC , and had until DATE owned an apartment in the town of PERSON in GPE and then sold it . Having regard to the above considerations , the court considered that the eviction order requested by the plaintiffs had been an appropriate and necessary measure which had been justified by the interests of the owner of the apartment .

This judgment was upheld on appeal on DATE .

On DATE the bailiffs commenced enforcement proceedings in respect of the judgment of DATE .

It is not clear whether the applicant has been evicted .

In DATE the applicant made a request to the President of ORG about the powers of lay assessors T. and PERSON

By letter of CARDINAL DATE the President of ORG responded to the applicant ’s request , having provided her with copies of documents confirming the powers of lay assessors T. and PERSON

The applicant considered that the lay assessors in her case had been incompetent to take part in the proceedings and applied for review of the judgment of CARDINAL DATE on the ground of new or newly discovered evidence .

By decision of CARDINAL DATE ORG rejected her request for review , having noted that the alleged incompetence of the lay assessors in her case was not new or newly discovered circumstance which would enable it to reopen the case .

On DATE ORG upheld the decision of CARDINAL DATE on appeal .