Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicants are NORP nationals who were born in DATE and DATE respectively and live at GPE ) . They are married and have CARDINAL daughters : PERSON , who was born on DATE , and PERSON , who was born on DATE .

The applicants and their CARDINAL daughters had lived since the girls ' birth with PERSON parents and his unmarried brother on an old farm . PERSON works on a poultry farm . PERSON used to work in a factory , but since losing her job has stayed at home to look after the children and do the housework .

The applicants had attended a special school for people with learning difficulties ( ORG ) .

Owing to their late physical and , above all , mental development , the girls underwent a series of medical examinations . On the advice of CARDINAL of the doctors and at the applicants ' request , they received educational assistance and support from DATE . Thus , from DATE PERSON , the elder daughter , received educational assistance ( PERSON ) , while from DATE respectively , both girls attended a day - nursery school for children with special needs ( Heilpädagogischer Kindergarten ) .

DATE and DATE , PERSON , a social worker ( sozialpädagogische PERSON ) visited the applicants ' family at home , officially for TIME a week . The applicants say that she actually spent TIME there , as the time she spent travelling had to be taken into account . Relations between her and the applicants rapidly deteriorated , which the applicants say resulted in her preparing a very negative report on them .

PERSON report to ORG ( PERSON ) did indeed emphasise negative points : the applicants ' intellectual shortcomings , conflictual relations between the family members and the contempt that , initially at least , she had been shown by the family .

Following that report ORG made an application on DATE to ORG ( Vormundschaftsgericht ) for an order withdrawing the applicants ' parental responsibility for their CARDINAL children .

On DATE ORG appointed PERSON , a psychologist , to give expert evidence . He delivered his report on DATE .

On DATE , after hearing evidence from the applicants and the grandparents , ORG made an interlocutory order ( einstweilige Anordnung ) withdrawing the applicants ' rights to decide where their children should live ( Aufenthaltsbestimmungsrecht ) or to take decisions regarding the children 's health ( ORG zur GPE über ärztliche PERSON ) , notably on the ground that “ [ the applicants did ] not have the intellectual capacity required to bring up their children properly ” ( “ die Kindeseltern sind intellektuell nicht in PERSON , ihre NORP ordnungsgemäss zu erziehen ” ) .

DATE the girls were placed in the care of the assessment team ( PERSON ) of a private association at Meppen ( PERSON für familienorientierte PERSON ) , which was part of ORG ( ORG für familienorientierte Sozialpädagogik ) .

In a report dated CARDINAL and DATE , the chairwoman of the executive board of the society , PERSON , also requested that the applicants ' parental responsibility be withdrawn on the ground that , while the children 's IQ was expected to decrease , a new home would afford them a chance to enjoy a relationship that would stimulate the development of their social skills and intelligence ( eine Verflachung des IQ 's ist vorprogrammiert , eine Chance haben die NORP durch eine neue GPE , in der über die LAW für die Sozial- und FAC ) .

On DATE , after hearing further evidence from the applicants and the grandparents , ORG withdrew the applicants ' parental rights ( PERSON ) over their CARDINAL children . It relied notably on the finding in the psychologist 's report that the applicants were not fit to bring up their children , not through any fault of their own ( unverschuldet erziehungsunfähig ) , but because they did not possess the requisite intellectual capacity .

ORG found that the applicants lacked the necessary awareness to answer their children 's needs . Moreover , they were opposed to receiving any support from social services and , far from being genuine , the consent they had now given to the measures that had been taken was merely a reaction to the pressure they had felt as a result of the proceedings .

ORG added that the children 's development was so retarded that it could not be corrected by the grandparents or support from social services . Only a foster home DATE and in PERSON 's case this would have to be a professional foster home ( professionelle PERSON ) DATE could help the QUANTITY children , as any less radical measures would be inadequate .

On DATE the CARDINAL girls were placed with separate , unidentified ( IncognitoPflege ) foster parents ( PERSON ) on the register held by ORG , which had produced a report on CARDINAL and DATE requesting that the applicants ' parental responsibility for their children be withdrawn .

In letters of DATE , DATE and DATE the applicants ' family doctors said that they considered that the children should be returned to the applicants ' care .

In DATE the applicants appealed to ORG ( Landgericht ) against ORG decision of CARDINAL DATE .

From DATE to CARDINAL DATE PERSON attended a course to qualify as a childminder ( Qualifizierungskurs für PERSON ) ; she completed the course and received a certificate .

On DATE an expert in psychology from ORG ( Deutscher Kinderschutzbund ) , a private organisation from which the applicants had sought help , also expressed the view that the children should be returned to their family and receive extra educational support from social services .

After these views had been expressed , ORG appointed Mr Trennheuser as a second expert witness in psychology on DATE . He delivered his report on DATE . ORG also heard evidence from the applicants , the grandparents , the relevant authority and the expert witness .

By a decision of CARDINAL DATE ORG dismissed the applicants ' appeal on the ground that the relevant provisions of LAW ( Articles DATE and DATE see “ Relevant domestic law ” below ) governing the protection of children 's interests were satisfied .

ORG referred to the CARDINAL reports by the experts in psychology .

According to the first report , which had been lodged with ORG on DATE , the applicants were incapable of bringing up their children because of their own deficiencies and because they felt out of their depth . Bringing in persons from outside the family circle to assist would merely exacerbate existing tensions between the parents and their daughters and the applicants ' sense of insecurity . The family was dominated by the grandparents and the applicants were unable to project an image of authority for their children . Moreover , the grandparents , who were incapable of offering support to their own children ( the applicants ) , were no more capable of remedying the intellectual deficiencies presented by their grandchildren .

According to the second expert report – the CARDINAL delivered on DATE – the girls were DATE behind in their general development , a factor that was discernible in particular from their speech , which consisted of stammering . Had they not benefited from DATE of support from the educational and social services , they would probably have ended up in a special school for the mentally disabled and would have been unable to develop normally or lead a normal adult life . The applicants were incapable of helping their daughters to develop their personalities , as they were ill - equipped to understand them or to treat them in an appropriate manner . Scientific studies had shown that parents with deficiencies of that type prevented the development of emotional ties between them and their children . In particular , the knowledge and skills acquired at school were in danger of being stifled in the family environment . The applicants had done no more than to tend to the children 's basic needs . There was a risk that in the future the parents would become increasingly aggressive towards their children . Regard being had to all those considerations , separating the children from the family was the only way of eliminating all danger to the children 's welfare ( Gefährdung des Kindeswohls ) .

ORG noted that the expert witnesses had reached the same conclusion following a thorough analysis . The second expert witness had had due regard to the fact that the applicants had contacted ORG and that PERSON had attended a childminding course . However , those factors were not sufficient to enable ORG to rule out all risk of the children 's development being harmed .

On DATE ORG ( Oberlandesgericht ) dismissed the applicants ' appeal , holding that there had been no breach of the law . The courts concerned had heard representations from the parties , relied on reports by CARDINAL expert witnesses and had taken into account the educational assistance measures that had already been implemented , the expert psychological report lodged by ORG on behalf of the applicants and the opinion of the family doctors .

On DATE a CARDINAL - member committee of ORG ( Bundesverfassungsgericht ) dismissed an appeal by the applicants .

On DATE Mr Riedl , a professor of educational sciences and Director of ORG at ORG , lodged a report as an expert witness appointed on behalf of the applicants in which he concluded that the children 's welfare was not in danger and that the applicants were entirely fit to bring up their children , both emotionally and intellectually . He said in particular that the family provided a successful example of cohabitation DATE that was desired , planned and well - organised in satisfactory material conditions and in circumstances that permitted both individual and social fulfilment ( “ die PERSON bietet somit ein geglücktes ORG für das gewollte , geplante und wohlorganisierte PERSON in geordneten wirtschaftlichen ORG und unter positiven individuellen PERSON ” ) . He added that additional measures of educational support could largely compensate for the ground the children would have to make up at school .

On DATE , also at the request of that association , Mr Giese , a professor of law at ORG for the Assessment of Physical and Mental Damage ( NORP für GPE ) , produced a further expert report on behalf of the applicants , in which he concluded that the procedure followed by the NORP courts in the instant case had contravened Articles CARDINAL and CARDINAL of the Convention .

As the children had been placed in unidentified foster homes , the applicants were unable to see them for DATE .

They then made an application to ORG , which on DATE granted them visiting rights of TIME a month despite opposition from ORG .

Contrary to what had been ordered by ORG , visits were conducted in the presence of CARDINAL representatives from various social services departments and associations . Subsequently , their number decreased , but ORG insisted on visits being accompanied ( begleitetes PERSON ) .

DATE the applicants made various attempts to obtain permission to see their children at DATE or at the start of their eldest daughter 's school year , but ORG refused . The applicants applied to ORG and were granted permission to see their eldest daughter at the beginning of DATE .

On DATE the applicants made a fresh application to the ORG seeking the right to visit their children for TIME at DATE .

On DATE ORG dismissed their application . It sought a further report from another psychologist , PERSON , in order to establish to what extent and to whom further visiting rights should be granted .

DATE Additional information supplied by the parties after the ORG had delivered its admissibility decision ( see paragraph CARDINAL above ) indicates that in her report of CARDINAL DATE PERSON recommended that the applicants ' visiting rights should be increased to TIME a month and that the grandparents should also be permitted to take part in visits once DATE .

By an order of CARDINAL DATE the ORG requested the parties to indicate whether they accepted the psychologist 's proposal .

NORP In a letter of CARDINAL DATE ORG said that the applicants would be granted visiting rights in accordance with the arrangements proposed by the psychologist .

In a letter of DATE the applicants asked ORG to issue a decision on the merits .

In a decision of DATE ORG took formal note that an agreement had been reached between the parties concerning the applicants ' rights to visit their children and held that it was unnecessary to determine the merits of the case .

In a letter of DATE the applicants asked PERSON , who as the ORG representative acted as the children 's guardian , to meet them in order to discuss various issues such as the children 's physical and psychological development , arrangements for visiting rights , and a christening ceremony that had been arranged in their home village .

Mr PERSON declined such a meeting in a letter of CARDINAL DATE , saying that the applicants could observe their children 's progress for themselves during visits .

On DATE the applicants wrote to ORG requesting it to terminate ORG appointment as guardian and to name an independent expert in its place .

In a letter of DATE PERSON rejected the criticism directed at him by the applicants .

In a reply of CARDINAL DATE the applicants said that ORG had systematically sought to separate them from their children for good , whereas the opinion of the majority of the experts had been that separation could only be temporary and that the children needed their family of origin . They added that if the experts considered that contact of TIME a month under strict supervision was sufficient , then the expert evidence was of little value . Lastly , Ms Sperschneider had spent in TIME with the applicants and had shown no interest in what they really thought .

In a letter of DATE a court clerk ( PERSON ) replied to the applicants , informing them that ORG had rejected their application .

DATE of the Civil Code ( Bürgerliches Gesetzbuch ) lays down that the guardianship courts are under an obligation to order necessary measures if a child 's welfare is jeopardised ( Gefährdung des Kindeswohls ) .

The first sub - paragraph of DATE provides that measures intended to separate a child from its family are permissible only if it is not possible for the authorities to take any other measure to avoid jeopardising the child 's welfare .

The second sub - paragraph of DATE provides :

“ Full [ parental ] responsibility may only be withdrawn if other measures have proved ineffective or have to be regarded as insufficient to remove the danger . ”


The applicant was a NORP citizen of NORP national origin , born in GPE in DATE .

He died in GPE on DATE . By a letter of CARDINAL DATE his daughter expressed the wish to maintain the case before the ORG .

Before the declaration restoring GPE ’s independence on DATE , the applicant worked as a lawyer in GPE . From DATE until DATE he was the Deputy Head of the so - called ORG ( hereinafter referred to as the “ LSPO ” ) , a division of the centralised ORG of the GPE . Following the failure of a communist “ coup d’état ” in GPE on DATE and the immediate dismantling of the NORP institutions , most of the ORG ’s activists fled GPE . The former Head of the LSPO , PERSON , moved to GPE . Yet the applicant stayed in GPE and acquired NORP citizenship .

Until the GPE coup of CARDINAL DATE the ORG had been located in a building in the centre of GPE . The prosecuting authority of the newly re - established state of GPE was also based in the same building . The applicant , as the Deputy Head of the LSPO , had been in charge of administration . The building had been protected by the interior forces of the GPE .

The applicant was suspected of preventing the prosecutors in the service of independent GPE from having access to their offices during the period from DATE to DATE . On DATE he was arrested , the arrest being confirmed by a prosecutor . On DATE he was formally charged with sabotage and the obstruction of the operation of State institutions .

On DATE the applicant was released from prison and remanded on bail .

On DATE the pre - trial investigation was concluded and the criminal case was transmitted to ORG .

At the same time , the applicant submitted to ORG numerous applications and pleadings alleging various procedural irregularities committed by the prosecution while conducting the pre - trial investigation . In his pleadings of DATE the applicant also asserted that the prosecutor ’s arguments in support of his guilt were ill - founded , and that the case - file contained no valid evidence .

On DATE ORG decided to order further investigation of the case . The above decision was subsequently quashed as , following amendments to domestic criminal procedure , on DATE ORG transmitted the case for a completely new examination to ORG . During the trial , CARDINAL witnesses were questioned , including a number of officers who worked for the prosecuting authority of independent GPE during DATE .

By a letter of CARDINAL DATE a prosecutor requested the President of ORG to invalidate the applicant ’s passport for the purposes of foreign travel . The prosecutor stated , on the basis of certain intelligence received , that the applicant intended to move to GPE in order to avoid trial . Apparently the prosecutor ’s request was granted .

On DATE a chamber of judges of ORG held a final hearing of the case . The applicant was represented by an officially appointed lawyer , but also made an intervention defending himself in person . The first instance court convicted him . It replaced however the initial charges of sabotage and obstruction , finding the applicant guilty of restraining the freedom of movement of third persons . ORG did not impose any sentence because of an amnesty law .

Both the prosecution and the applicant appealed against the above judgment .

On DATE a chamber of ORG held a hearing on the appeal on points of law . The court decided to relinquish jurisdiction in favour of the full court .

On DATE ORG held a full appeal hearing . The applicant was represented by his own defence counsel , but also made an intervention himself . He requested inter alia that the court call and question the former Head of the LSPO , PERSON , who lived near GPE and worked as a NORP military prosecutor .

On DATE ORG amended the judgment of DATE , convicting the applicant of sabotage and the obstruction of the operation of ORG institutions . He was sentenced to DATE imprisonment .

The applicant lodged a cassation appeal with ORG . He contested the fact - finding competence of both lower courts . He alleged inter alia that he had never received a copy of the first instance judgment in LANGUAGE , a language that he would understand , and that thus he had been unable to prepare a proper appeal . In his cassation appeal the applicant made no allegations as to the composition of the appellate court .

On DATE a chamber of ORG heard the cassation appeal in the presence of the applicant and his defence counsel . At the hearing the applicant challenged the assessment of the ORG evidence by the lower courts .

ORG found that ORG had properly decided the case . It also dismissed as unsubstantiated the applicant ’s allegations that the appellate court had breached any domestic procedural requirements to the applicant ’s detriment . ORG noted that a copy of the first instance judgment in LANGUAGE was furnished to the applicant on DATE , whereas the term for submitting an appeal had expired on DATE . ORG found that this fact had constituted a breach of domestic criminal procedure . The cassation court also noted , however , that the above irregularity had been remedied by the appellate court which had granted the applicant DATE to supplement his appeal . The case had then been examined by ORG based on the applicant ’s revised appeal .

On DATE the applicant died of a heart disease .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE in GPE . The respondent Government were represented by Mr P. A. GPE , the representative of GPE at ORG .

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

The applicant receives an old age pension . As his pension due for the period from DATE had not been paid to him he applied to a court .

On DATE the ORG of GPE found for the applicant , ordering ORG to pay him MONEY ( RUR ) in arrears as delayed pension payments and CARDINAL ORG as inflation losses .

On DATE ORG , on the defendant 's appeal , quashed the judgment in a part related to the court award for inflation losses , having confirmed the remaining part concerning the pension in arrears .

The applicant brought a second action against ORG for non - pecuniary damages allegedly sustained as a result of the delay in pension payments .

On DATE the NORP ORG of GPE rejected the applicant 's claim . The court found that the delay in payment of pension occurred on account of the failure of organizations and individuals to pay pension contributions in time for which the pension authority can not be held responsible . The court further maintained that the claim had no basis in domestic law .

On DATE ORG dismissed the applicant 's appeal against the judgment .

The applicant 's subsequent requests to ORG of GPE pursuing the reopening of the case concerning non - pecuniary damages by way of supervisory review proceedings were unsuccessful , of which he was informed by letters of DATE , CARDINAL DATE and DATE .

On DATE , following an application of ORG by way of supervisory review , the ORG of ORG quashed the decision of the appeal court of DATE in a part concerning the inflation losses and upheld the original judgment of DATE in this respect .


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

On DATE the applicant brought proceedings against a local authority alleging that the authority had not ensured a good upkeep of his house .

On DATE the ORG refused to initiate the proceedings because the applicant had not paid a court fee .

On DATE the ORG quashed this decision on appeal as insufficiently reasoned .

On DATE the ORG again demanded the applicant to accompany his action with a court fee .

On DATE ORG upheld this decision on appeal .

On an unspecified date the applicant lodged a supervisory - review complaint against these decisions .

On DATE a judge of ORG refused to lodge an application for supervisory review .

On DATE the acting President of ORG upheld the decisions , including that of DATE .

On DATE a new Code of Civil Procedure ( “ CCivP ” ) was enacted to replace that of DATE . The ORG entered into force on DATE . LAW ORG defines the procedures by which judicial acts which have come into force may be re - examined . LAW defines the supervisory - review procedure :

“ CARDINAL . Judicial acts which have come into force ... may be appealed against ... in a supervisory - review court by parties to litigation and other persons if their rights and legal interests are affected by the judicial acts .

Judicial acts may be appealed against in a supervisory - review court DATE after they come into force .

Where a public prosecutor participated in litigation , officials of the prosecutor 's office ... shall have the right to appeal to a supervisory - review court against judicial acts which have come into force . ”

“ CARDINAL . A [ supervisory - review application ] against :

i ) ... a cassation judgment of ... a ORG ; ... a judgment of a ORG ... [ shall be brought ] before the ORG of a ... ORG ... ;

ii ) ... a cassation judgment of ... a ORG ; ... a judgment of a ORG ... [ shall be brought ] before ORG , if the ORG of a ... ORG has dismissed applications against these judgments ; ...

[ Supervisory - review complaints ] against supervisory - review judgments of ORG of ORG ... shall be brought to the ORG of ORG if such judgments disrupt the unity of court jurisprudence . ”

“ CARDINAL . After examination of a [ supervisory - review application ] a judge shall decide as follows : either

i ) to obtain the case - file , if there are doubts as to the lawfulness of the judicial act ; or ,

ii ) not to obtain the case - file , if under the federal law the reasons of the [ supervisory - review application ] can not entail the quashing of the judicial act .

NORP The President of the [ competent ] court may overrule the judge 's decision not to obtain the case - file . In this case the President of the relevant court ... shall give his own decision to obtain the case - file . ”

“ CARDINAL . After examination of the case obtained by the supervisory - review court a judge shall decide as follows : either

i ) not to pass the case for consideration on the merits by the supervisory - review court ; or ,

ii ) to pass the case for examination of the [ supervisory - review application ] by the supervisory - review court . ”

“ CARDINAL . NORP The President of the [ competent ] court may overrule the judge 's decision not to pass the case for consideration on the merits by the supervisory - review court . In this case the President of the relevant court ... shall give his own decision to pass the case for consideration on the merits by the supervisory - review court . ”

“ CARDINAL . The court hearing may be attended by parties to litigation , their counsel , other persons who have lodged the supervisory - review application ... if their rights and legal interests are directly affected by the judicial act appealed against ...

[ A representative of a prosecutor 's office ] may attend the hearing if a public prosecutor participated in the case .

If the persons listed in p. CARDINAL of the present Article appear in the court hearing , they may make oral submissions on the case ... ”

“ The grounds for quashing or varying judicial acts of lower courts in supervisory - review proceedings shall be significant violations of substantive or procedural law . ”

“ The President or a Deputy President of ORG may lodge with the ORG of ORG a reasoned application for supervisory - review of judicial acts to ensure the unity of court jurisprudence and legality . ”

“ CARDINAL . After examination of a case under the supervisory - review procedure , a court may :

i ) uphold the decision of the court of first , second or supervisory - review instance and dismiss the [ supervisory - review application ] ;

ii ) quash the decision of the court of first , second or supervisory - review instance in full or in part and remit the case for a fresh examination ;

iii ) quash the decision of the court of first , second or supervisory - review instance in full or in part and shelve the case or close the proceedings ;

iv ) leave in force CARDINAL of judicial acts passed in the case ;

v ) quash or vary the decision of the court of first , second or supervisory - review instance and pass a new decision without remitting the case for a fresh examination if there has been a mistake in the application and interpretation of substantive law ... ”


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

The applicant was born in DATE and lives in GPE .

NORP In DATE the applicant was dismissed from the job which he held in a local construction company .

On DATE he filed a claim with ORG in GPE ( FAC opštinski sud u ORG ) , seeking reinstatement .

On DATE ORG ruled in favour of the applicant .

On DATE ORG in GPE ( ORG u ORG ) quashed this judgment and ordered a retrial .

From DATE to CARDINAL DATE , ORG ruled in favour of the applicant on CARDINAL separate occasions , but each time the ORG quashed those judgments on appeal and ordered a retrial .

On DATE ORG again ruled in favour of the applicant . It also ordered the respondent company to reinstate him until the adoption of a final decision in the proceedings .

On DATE the ORG quashed this judgment and ordered a retrial .

NORP On DATE ORG revoked its provisional reinstatement order of DATE .

On DATE the applicant requested his salary arrears .

At the hearing held on DATE , the applicant complained about the delay and sought the removal of the presiding judge .

On DATE the President of ORG rejected the applicant 's request .

On DATE the applicant apparently failed to appear at the hearing scheduled for that date .

On CARDINAL DATE ORG invited the parties to take part in a mediation procedure and suspended the reinstatement suit .

On DATE a mediator was appointed .

By DATE , CARDINAL mediation hearings were scheduled and/or adjourned .

On DATE the entire case file was apparently forwarded to respondent ORG 's Agent .

On DATE and in respect of the above proceedings , the applicant filed a separate civil claim against ORG and GPE , seeking compensation for the breach of his “ right to a fair trial within a reasonable time , as guaranteed under LAW ” .

On DATE ORG in GPE ( NORP opštinski sud u ORG ) rejected the applicant 's claim as inadmissible .

On DATE ORG in GPE quashed this decision on appeal and ordered a retrial . In its reasoning , inter alia , it recognised the applicant 's right to have his labour case resolved within a reasonable time and referred to LAW as legally binding . Finally , ORG noted that as of DATE Serbia was the sole successor of the former ORG and GPE , meaning that there were no procedural obstacles for the continuation of the applicant 's case .

On DATE ORG suspended the proceedings , stating that ORG and GPE had ceased to exist in the meantime . Although he was entitled to file an appeal against this decision , there is no evidence in the case file that the applicant actually did so .

In accordance with ORG order of DATE , on DATE the respondent company reinstated the applicant ( see paragraph CARDINAL above ) .

The applicant maintained that the respondent company had in the meantime encountered serious financial difficulties , which is why it was “ no longer able to pay its employees ” and was “ under threat ” of being “ declared insolvent ” .

On an unspecified date ORG ( PERSON ) apparently instituted proceedings to have the presiding judge in charge of the reinstatement case removed from the bench ( razrešen ) .

The relevant provisions of this legislation are set out in the ORG v. GPE judgment ( no . CARDINAL , § § DATE , CARDINAL DATE ) .

Article CARDINAL § CARDINAL provided that all employment - related disputes were to be resolved by the courts within DATE from the date of institution of the proceedings .

This Act entered into force on DATE and thereby repealed LAW of DATE .

The text of LAW of LAW of DATE corresponds to the aforementioned LAW of DATE .

DATE and ORG CARDINAL of this Act provide , inter alia , that a reinstatement case may be resolved by a ORG - appointed arbitrator . Such proceedings , however , may only be instituted with the consent of both parties and must be concluded within DATE as of the date of the initial hearing .

Article CARDINAL of LAW ( Ustav PERSON ) , published in ORG of GPE ( ORG - no . CARDINAL ) provided as follows :

“ Everyone shall be entitled to compensation for any pecuniary and non - pecuniary damages suffered due to the unlawful or improper conduct of a ORG official , a ORG body or a public authority , in accordance with the law .

Such damages shall be covered by GPE or the public authority [ in question ] . ”

This LAW was repealed on DATE , which is when the “ new ” LAW ( published in OG RS no . CARDINAL ) , entered into force .

The substance of LAW of LAW corresponds , in its relevant part , to the above - cited text of LAW .

Article CARDINAL of this Code defines “ judicial malfeasance ” ( kršenje zakona od strane sudije ) as a separate criminal offence .

The relevant provisions concerning ORG and GPE and the succession of ORG and GPE are set out in GPE judgment ( no . CARDINAL , § § CARDINAL , CARDINAL and CARDINAL , DATE ) .


Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . She was represented before the Court by Mr B. Mrva , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , ORG Attorney - General .

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

NORP Since DATE the applicant has had a foundry in the village of GPE where she has been producing products such as ashtrays and door handles . Her and her daughter 's income depends on this business .

On the adjoining plot of land , the owner , PERSON , built extensions to his building , which had originally been built for a handicraft business . The applicant 's plot stands to the west of PERSON 's plot . As a result of the extensions , there is QUANTITY between the applicant 's and PERSON 's buildings . The extensions were in the form of CARDINAL apartments . They were built without the required building permits and several injunctions were issued prohibiting PERSON from continuing with the building work or from using the unlawfully built constructions ( see paragraphs CARDINAL below ) .

The apartments were nevertheless sold and all of them are currently inhabited .

The applicant submitted that , because of the illegally built extensions , PERSON 's land was practically all built up and there was no space left for the appertaining land . Consequently , the residents , who were mostly families , had been using the applicant 's land for parking , playing , etc . An oil - fuel tank had been placed on the terrace of PERSON 's building and was a potential fire risk to the applicant . The rainwater run - off was directed onto the applicant 's plot of land . The unlawfully built flats had no proper drainage , which resulted in an intolerable smell and the conditions were against all health and hygiene standards . The new residents were constantly complaining about the foundry 's activities , which operate TIME a day .

NORP In DATE PERSON obtained a site permit ( permit for use of land – lokacijsko dovoljenje ) for a large extension to his initial construction to convert part of the workshop into an apartment block and for the construction of a building for business and storage purposes . This permit was renewed by a decision of DATE . Subsequently , PERSON obtained a building permit ( gradbeno dovoljenje ) on DATE .

On DATE , following the applicant 's successful request for the matter to be reopened , ORG quashed the decisions by which the site and building permits had been granted . The applicant participated as party to these and further proceedings . As regards the site permit , an appeal by PERSON was dismissed by ORG ( “ the Ministry ” ) on DATE . PERSON subsequently applied to ORG challenging the ORG 's decision . His application was rejected on DATE . He then appealed to ORG . His appeal was dismissed on DATE .

As regards the building permit , the ORG quashed the decision of CARDINAL DATE and ordered a re - examination of the application on DATE . Subsequently , on DATE , ORG again quashed the decision of CARDINAL DATE , meaning that PERSON 's request for a building permit was refused . It relied on the fact that , following the above proceedings ( see paragraph CARDINAL above ) , PERSON was not in possession of a valid site permit which was a prerequisite for acquiring a building permit .

In DATE the applicant instituted proceedings against PERSON in ORG seeking the demolition of the unlawfully built extensions . She claimed that the extensions had been endangering her business and having a negative effect on working conditions .

On DATE and DATE respectively , ORG issued CARDINAL interim orders prohibiting PERSON from continuing with the illegal construction and selling the apartments . PERSON did not respect the orders and continued with the construction .

In the course of the proceedings , the court appointed a construction expert who prepared a report . The court refused the applicant 's request for a supplement to the report finding that the request raised issues which should be determined in the administrative proceedings .

On DATE the court , relying on the expert report , dismissed the applicant 's claim . Referring to the conditions laid down in sections CARDINAL ) and CARDINAL ) of ORG and section CARDINAL of GPE , it found that the deprivation of sunlight did not exceed the statutory limit and that the behaviour of the new residents could not be considered as a source of danger which could justify demolishing the building . In respect of the smell allegedly arising from the drainage , the court found that , firstly , the applicant had not raised this issue in her claim and secondly , the drainage problems had not been caused by the newly built extensions . The applicant could therefore not expect these extensions to be demolished . Lastly , the court noted that the issue of whether PERSON 's construction complied with statutory requirements was not relevant to the civil proceedings because , even if a construction was legal , an aggrieved party could seek redress in respect of an alleged environmental nuisance ( imisije ) in civil proceedings . The question of the compliance with statutory requirements was therefore a matter which had to be decided in the administrative proceedings . Consequently , the court also revoked the interim orders of DATE and DATE .

The applicant lodged an appeal and on DATE ORG upheld the first - instance court 's judgment . As regards the applicant 's argument that she had been refused protection from future interferences by residents of the illegal construction , ORG noted that the potential source of damage would have to be certain and concrete , which could not be established in the present case . In addition , it noted that none of the other issues mentioned by the applicant , namely , how many parking spaces were available to the new residents and where the fuel tank and rubbish bins should be placed , justified the demolition of the extensions and would be more appropriately considered in administrative proceedings .

On DATE ORG rejected the applicant 's appeal on points of law , finding that the lower courts ' conclusions were correct and stressing that the applicant 's allegations did not obviously justify the demolition of the disputed construction , which was the only claim pursued by the applicant . It added that demolition could be ordered only when there were no other means to prevent damage .

The applicant lodged a constitutional appeal . She disputed the lower court 's opinion that she should have used other means in order to protect her right to property . She alleged that , owing to the circumstances of the case , in particular PERSON 's non - compliance with the authorities ' orders and the lack of alternative solutions to the problems deriving from the illegal building , demolition was necessary . She submitted that the fact that PERSON 's building did not comply with the building permits should have been taken into account as the aim of such permits was also to protect the neighbours ' interests . She further submitted that the ORG could intervene only of its own motion and had been ineffective in her case . She would therefore not be able to gain effective protection of her rights in administrative proceedings .

On DATE ORG rejected the applicant 's complaints as inadmissible since it did not find any violation of her human rights . In this connection , it found that the courts , by finding that some issues should be determined in administrative proceedings , had not referred the applicant to administrative proceedings or denied judicial protection in respect of those rights . ORG furthermore said that in any event , even when assessing a right in administrative proceedings , a party dissatisfied with the result could subsequently bring a claim before ORG . Lastly , ORG stressed that the applicant 's case had been examined by tribunals established by law which had duly considered the applicant 's claims and that the decisions issued in the case had been well reasoned . The decision was served on the applicant on DATE .

In DATE , ORG ( “ the ORG ” ) instituted proceedings against PERSON in respect of the construction of an exterior staircase and the illegal extension of the mansard .

According to the note from ORG concerning PERSON 's real estate , PERSON had been banned from continuing to build or sell the construction since DATE . In DATE the status of “ illegal construction ” ( črna gradnja ) was entered into the registry .

On DATE the ORG issued a decision ordering the removal of an exterior staircase , for which no permit had ever been issued and which was the only way to enter the apartments situated in the north - west and north sections of the building . By DATE this decision had become final and enforceable . On DATE the ORG also ordered the removal of an extension of MONEY QUANTITY situated in the south section , which consisted of CARDINAL floors , and of the wall which served to separate PERSON 's land from the neighbouring plots . Since administrative enforcement proceedings were not carried out in GPE DATE , which was due to the absence of any authorised operator who could carry out the enforcement , the decisions ordering the enforcement of the above decisions were adopted only on DATE .

In the meantime , PERSON had been using the new extensions , in particular the CARDINAL apartments , despite the fact that he had not obtained an operating permit ( uporabno dovoljenje ) . On DATE , PERSON was banned from making use of the extensions . In DATE , several inspections were carried out of his property . As PERSON had not complied with the decision of DATE , the ORG fined him CARDINAL SIT on CARDINAL DATE .

It would appear from the records concerning the execution of CARDINAL of the decisions of DATE ( see paragraph CARDINAL above ) that part of the above - mentioned extensions to the south section of the building and the wall were demolished in DATE .

As regards the exterior staircase , PERSON was ordered to remove it on DATE . Following an objection from the residents of the apartments , who had also invested in the construction of the staircase , the case was reopened in order to allow them to participate in the proceedings . On CARDINAL DATE , the ORG issued a decision again ordering the removal of the exterior staircase . It noted in its decision that no permit had ever been issued for the construction of the staircase and , furthermore , that the site and building permits for the large extension of the initial building had also been quashed by binding decisions . The case is now pending on appeal .

Section CARDINAL of the LAW ( Zakon o obligacijskih razmerjih , ORG of ORG no . CARDINAL ) provided , in so far as relevant :

The relevant provisions of LAW ( Zakon o temeljnih lastninskopravnih razmerjih , ORG of ORG no . CARDINAL/CARDINAL ) , read as follows :

“ The owner of the real estate must ... refrain from the activities and must remove the sources ... ( smoke , unpleasant smells , heat ... etc . ) which interfere with their neighbours ' enjoyment of their property , if these interferences exceed the level which is normal given the nature and purpose of the estate and the local customs . The same applies when such activities or sources cause significant damage . ”

“ If a third person unjustifiably disturbs an owner ... in any way other than by taking possession of his property , the owner ... can bring a civil claim demanding that such disturbance discontinue . ”

If the disturbance causes damage , the owner can demand compensation in accordance with the general rules ... ”

Section CARDINAL of LAW ( Zakon o inšpekcijskem nadzoru , ORG no . CARDINAL/CARDINAL ) provides in the relevant part :

“ The inspector must consider all reports , complaints , notices and any other applications which are within his competence and inform the applicants , upon their request , of the steps taken .

... The inspector must also consider anonymous applications ...

In proceedings before the ORG , the person accused of the alleged misconduct ( zavezanec ) has the status of party to the proceedings . The applicant who lodged an application ... [ with the ORG ] is not considered a party to the proceedings . ”

The Constitutional Court decision of DATE ( Up-CARDINAL/CARDINAL ) provides , in so far as relevant , as follows :

“ ... the persons , whose rights and interests are affected by the decisions of the ORG should have the status of party to the proceedings ( ... ) . However , the purpose of supervision by the ORG requires that individuals can not initiate proceedings before the ORG . ....

.... supervision by the ORG is aimed at protecting public interests ; protection of the rights concerning relations between neighbours is afforded in civil proceedings based on LAW and LAW . ”


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

The applicant was born in DATE and lives in PERSON .

In DATE the applicant and her husband divorced .

In DATE she filed with ORG ( Sąd Rejonowy ) a petition in which she sought the division of the spouses ' property .

In DATE and DATE the court ordered expert opinions .

On DATE it refused a request that the shares in the property be unequal .

On DATE the court declined the applicant 's challenge to the participation in the proceedings of CARDINAL of the judges . Her appeal against that decision was subsequently rejected .

On DATE , in reply to the applicant 's complaint , the President of ORG PERSON ) informed her that due to the excessive length of the proceedings they had been taken under his administrative supervision .

On DATE ORG rejected the applicant 's appeal against the decision of CARDINAL DATE .

On DATE and DATE , as well as on DATE and CARDINAL DATE , ORG held hearings . In DATE the parties to the proceedings requested that certain further expert opinions be ordered .

On DATE the applicant changed her claim .

On DATE an expert appointed by the court submitted his opinion concerning the value of real property .

In a letter of DATE the President of ORG agreed with the applicant 's further complaint about the excessive length of the proceedings .

On DATE the court gave judgment in respect of part of the claims .

On DATE the applicant requested the court to appoint an expert to assess the value of movables .

On DATE the applicant 's former husband lodged an appeal against the judgment of DATE .

On DATE ORG quashed that judgment and remitted the case for re - examination .

DATE the applicant lodged several complaints with the judicial authorities about the lack of progress in the proceedings , to no avail .

ORG held hearings on DATE , DATE and DATE , DATE , DATE , DATE , DATE and DATE , as well as DATE , DATE , DATE and DATE . It ordered CARDINAL expert opinions .

On DATE the court gave judgment . In the reasoning it pointed out that the applicant on several occasions had changed her claims . She appealed against that judgment .

ORG held hearings on DATE , DATE and DATE .

On DATE the parties reached a friendly settlement in respect of a part of ORG judgment . The applicant was to receive MONEY from her former husband as payment for transferring her share in the disputed property to him . She withdrew her appeal in respect of the remainder of ORG judgment .


Giovanni Bonello;Josep Casadevall;Kristaq Traja;Lech Garlicki;Nicolas Bratza;Stanislav Pavlovschi

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested . By a decision of DATE ORG in PERSON remanded him in custody on charges connected with organised crime . It had regard to evidence gathered by the prosecuting authorities which indicated that the applicant had committed the offences concerned . The applicant appealed , to no avail .

The same court subsequently extended the applicant 's detention by decisions of , inter alia , DATE and DATE and DATE , until , respectively , DATE , DATE and DATE . The court relied on the evidence gathered in the case which pointed to the likelihood of the applicant 's guilt . It was also of the view that the applicant , if released , could hinder the proper course of the investigations and judicial proceedings by exerting pressure on witnesses and by colluding with his co - accused . It noted that many persons appeared to have been involved in the commission of the offences concerned and that it was therefore necessary to obtain a considerable amount of evidence . It also had regard to the applicant 's criminal record .

NORP On numerous other occasions the prosecuting authorities refused to release the applicant , relying on the same arguments and referring to the evidence gathered in the investigation .

On an unspecified number of occasions the applicant was allowed to see his wife during his detention . DATE , the date on which the applicant 's wife gave birth to a son , and DATE the applicant saw her and his son on CARDINAL occasions .

On DATE the prosecuting authorities lodged a bill of indictment with ORG . The applicant was charged with multiple counts of fraud .

On DATE the court ordered that the applicant should serve a prison sentence imposed on him by a final judgment given in another criminal case concurrently with the present detention .

Hearings in the case were held on DATE , DATE and DATE . On the latter date the applicant was convicted as charged .

The applicant submitted envelopes of CARDINAL letters sent to him by ORG on DATE and DATE . The envelope of the first letter bears the stamp “ Censored ( cenzurowano ) – PERSON Court – Date ” , signed with an illegible signature . The envelope of the second letter bears the full official stamp of ORG and a handwritten note “ censorship ” ( cenzura ) , accompanied by a handwritten date , DATE .

NORP The legal provisions governing monitoring of detainees ' correspondence applicable at the material time are set out in a judgment delivered by ORG on DATE ( PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE ) .


Anatoly Kovler;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . ORG ( “ the Government ” ) were represented by PERSON and PERSON , former Representatives of GPE at ORG

In DATE a housing construction cooperative , ORG , ( “ the cooperative ” ) was set up within FAC in GPE . Its aim was to construct a new residential building with a view to improving the staff 's housing conditions . ORG had provided the cooperative with a plot of land in GPE for construction . Under a finance contract of DATE , the construction was to be funded firstly by contributions from members of the cooperative ( “ share allocations ” ) and secondly by a private company , PERSON , which would receive in exchange flats , other LOC of a total surface area of CARDINAL sq.m , parking and a building of a total surface area of CARDINAL sq.m on this plot of land . The share allocation to be paid by the members of the cooperative was determined in accordance with the surface area of the flats that they would receive , which , taken together with the investment share that Stroyservice-CARDINAL would allocate to each of them ought to correspond to the balance cost of their flats . This finance plan , and the division of residential area and office premises between the cooperative and PERSON , were endorsed on CARDINAL DATE by ORG .

The applicant had joined the cooperative on DATE on a decision by a general meeting of members . On DATE she signed an employment contract with the cooperative 's administration and began working as its chief accountant . Under LAW of a supplementary agreement to this contract , signed on DATE , the chief accountant , who was at the same time a member of the cooperative , would receive a CARDINAL - roomed flat which she would choose herself at the close of the construction work , prior to the general drawing of lots . On DATE the applicant also became a member of the cooperative 's governing body .

By decisions of the general meeting of members of CARDINAL DATE and CARDINAL DATE , the amount of the share allocation for CARDINAL - roomed flats was set at MONEY ( RUB ) ( MONEY CARDINAL ) . In DATE the applicant paid the cooperative her joining fee and the share allocation for a CARDINAL - roomed flat . In total she paid RUB CARDINAL .

On completion of the work , a general drawing of lots was held on DATE for the purpose of attributing flats to the members of the cooperative . As envisaged in her contract , the applicant was entitled to choose her flat before this draw was made . On DATE she chose flat no . CARDINAL . According to the minutes of the governing board 's meeting of CARDINAL DATE , it was noted that the applicant and certain other individuals , referred to as contractual members , were performing their duties within the cooperative appropriately and that , in consequence , their choice of flats should be endorsed . The applicant 's choice was thus approved unanimously . The general meeting of members on DATE confirmed that flat no . CARDINAL had been attributed to the applicant , and this fact was entered by hand in her membership book and signed by the director of the cooperative . The cooperative 's management sent the documents confirming the distribution of flats to ORG to obtain property title certificates .

From DATE the members of the cooperative , including the applicant , began moving into their flats . By Act No . CARDINAL of DATE and a project completion certificate of DATE , signed by the cooperative and ORG , it was recognised that each party had fulfilled the financial commitments entered into , and that out of CARDINAL flats , whose construction was jointly financed by PERSON and the cooperative , the latter received QUANTITY flats , including flat no . CARDINAL .

By a decision of DATE the governing body decided to appoint an acting chief accountant for the duration of the applicant 's sick leave . On an unspecified date in DATE the applicant was dismissed from this post .

According to the applicant , having paid the cooperative the full amount of her share allocation , in accordance with LAW of GPE , she became the owner of her flat . However , the cooperative refused to issue her with a certificate confirming that she had paid her share allocation in full . The applicant brought legal proceedings against the cooperative .

On DATE the members of the cooperative held a general meeting and , in view of their dissatisfaction with the governing board in place , elected a new management team , headed by a new director . As the cooperative 's documents and other symbols remained in the hands of the members of the outgoing governing board , the new director ordered a new official stamp for the cooperative .

On CARDINAL DATE the ORG of GPE ( Тверской межмуниципальный народный суд г. GPE ) , having examined the documents submitted by the applicant , considered it proven that the applicant had fully honoured her financial obligations as a member of the cooperative , and ordered the latter to issue her with a certificate confirming that her share allocation had been paid in full . This judgment was not appealed against and became final .

In compliance with this judgment , on DATE the applicant was issued with the certificate in question , which bore the cooperative 's new stamp . According to this document , on DATE the applicant had paid her share allocation in full , namely RUB CARDINAL , for a CARDINAL - roomed flat no . CARDINAL , the balance value of which was RUB MONEY , the difference between the CARDINAL amounts having been financed in accordance with the finance plan of CARDINAL DATE ( that is by the investor , PERSON ) .

On the basis of this document , on DATE the applicant had her property title to flat no . CARDINAL registered with the municipal housing department at ORG .

It appears from the other decisions issued in this case that , by a judgment of DATE , ORG of GPE declared the cooperative 's new stamp null and void . The grounds for this decision remain unknown .

On DATE the general meeting decided to exclude the applicant from the cooperative on the ground that she had not performed her duties as an accountant appropriately . Noting also that the applicant had not paid the first instalment of her share allocation on time and that she had not paid the subsequent instalment of DATE , the meeting decided , in addition to her dismissal , to deprive her of her property right to the cooperative 's flat .

The applicant challenged her exclusion from the cooperative before the domestic courts . The cooperative filed a counter - claim requesting to have it established that she had never been a member . In support of this request , the cooperative submitted that TIME of the general meeting of DATE , confirming the applicant 's membership , contained inaccurate information

On DATE ORG of GPE overturned the decision to exclude the applicant from the cooperative and dismissed the latter 's counter - claim . As regards the counter - claim the court noted that the participants at this general meeting had confirmed before it that the applicant had indeed been admitted as a member on DATE . In addition , on DATE the general meeting , the only body with authority to decide on membership , re - examined the list of members in the light of each individual 's compliance with his or her financial obligations , and confirmed the applicant 's membership . It further found that , if the applicant had not been a member , she would not have received on CARDINAL DATE the membership book that the cooperative issued solely to its members .

On the basis of the receipts , the membership book and other information obtained from the bank , the court established that the applicant had paid all of the instalments of her share allocation , for a total amount of RUB CARDINAL , but that she had not paid RUB CARDINAL , a financial contribution decided on at the general meeting of CARDINAL DATE , and RUB CARDINAL , a sum imposed for various administrative costs . The court considered that a failure to pay the “ extremely modest ” sum of RUB MONEY could not justify a member 's exclusion from the cooperative , especially as the latter had submitted no evidence of a proposition to the applicant to pay this sum and her refusal to pay .

The decision to exclude the applicant was therefore held to be null and void and the court ordered that she be reinstated as a member .

In DATE the ORG 's management brought an action before ORG of GPE in order to have the applicant 's ownership certificate to the flat no . CARDINAL of DATE declared illegal .

In particular , the cooperative alleged that on DATE the applicant 's membership had been approved by the general meeting subject to the condition that she performed , on a contractual basis , the duties of chief accountant . It was in exchange for employment as an accountant that the cooperative had undertaken to allocate her a CARDINAL - roomed flat . Abusing this position , the applicant had unlawfully fabricated a document confirming that her share allocation had been paid in full and , with the help of this document , she had obtained the ownership certificate of DATE .

Called to the court as a third party , the municipal housing department of ORG maintained that the disputed ownership certificate was legal .

By a judgment of DATE , the court found that the applicant had joined the cooperative as a contractual member and that on CARDINAL DATE she had signed a mutual cooperation contract with the management . Her obligation to perform the duties of chief accountant in exchange for her membership status had been reiterated in the supplementary agreement of DATE . The court established that in accordance with the cooperative 's statute , which made a distinction between ordinary members and contractual members , the ORG 's management would have been entitled to refuse to allocate a flat to a contractual member if he or she failed to perform the duties set out in the relevant employment contract . In consequence , the court dismissed the applicant 's arguments that she had fulfilled the contract signed with the cooperative and therefore had been already provided with the disputed flat . It established that failure to comply with the contract 's clauses had direct repercussions on her status as a member and on her rights and obligations with regard to the flat . Having referred to various audit reports , the opinion of the supervisory committee and the court - appointed expert 's report of DATE , the court found that the applicant had not fulfilled her contractual obligations towards the cooperative in an appropriate manner .

The court further found that the decision of the general meeting of CARDINAL DATE merely endorsed the results of the draw and in no way proved that the applicant had received flat no . CARDINAL independently of her employment obligations within the cooperative . The governing board 's meeting of CARDINAL DATE made only a preliminary allocation of the flats on a condition of fulfilment by the cooperative 's members of their obligations , as the building in question had not been yet put into service , therefore this decision could not be regarded as providing the applicant with a flat .

Furthermore , in addition to the RUB CARDINAL non - payment which had been established by the judgment of DATE , the applicant had failed to pay to the cooperative the book value of the apartment , equivalent to RUB CARDINAL . The court dismissed the applicant 's arguments that by a decision of the general meeting the share allocation for a CARDINAL - roomed flat had been set at RUB CARDINAL , that she had paid this amount in full as confirmed by the same judgment of DATE , and that the remaining amount had been funded by Stroyservice-CARDINAL in accordance with the funding plan of CARDINAL DATE . It noted that the applicant was not included in the list of the cooperative 's members whose shares had been compensated by the above company .

The court also mentioned that the cooperative 's stamp on the certificate of DATE confirming the applicant 's title to flat no . CARDINAL and on the certificate of DATE confirming that the applicant had paid her allocation in full had been declared null and void . The applicant 's argument that the certificates were issued on the basis of the court judgment of CARDINAL DATE was dismissed on the ground that this judgment did not include the amount of the allocation paid by the applicant .

The ownership certificate of DATE was thus declared null and void . Both the applicant and her lawyer had participated in the hearing .

On DATE ORG , having heard the applicant 's lawyer , dismissed the applicant 's appeal , having mentioned that the applicant had not been compensated by the investor and that the cooperative 's stamp on the certificates of DATE and DATE had been declared null and void .

On DATE and CARDINAL DATE judges of ORG of GPE rejected the applicant 's requests for a supervisory review .

On DATE CARDINAL members of the cooperative lodged a complaint with the department of ORG LOC , alleging organised crime within the cooperative 's management . They complained that at various points DATE the cooperative 's managers , in criminal agreement with PERSON , had led CARDINAL members of the cooperative to believe that the latter had a debt towards Stroyservice-CARDINAL , which would no longer pay the individual investment shares for the members of the cooperative . These members were thus obliged to pay considerable sums in cash , with no receipts , as supplementary contributions . The complainants noted in this respect that criminal proceedings had been brought against Stroyservice-CARDINAL but that the case had been discontinued on DATE . In addition , in order to acquire the flats for itself with a view to their resale , the cooperative had brought unfounded judicial proceedings against various members of the cooperative . Having paid their share allocations as defined by the general meeting in full , those members found themselves accused of failing to pay the sums necessary to cover the cooperative 's non - existent debt to Stroyservice-CARDINAL . In other cases , members were accused of failing to pay the individual investment shares which , under the terms of the construction finance plan , PERSON had undertaken to pay . Finally , the claimants pointed out that the director of the cooperative had not convened a general meeting since DATE .

On DATE the municipal housing department of ORG wrote to ORG , setting out the facts as these had been brought to its attention following CARDINAL sets of proceedings opposing the cooperative and its members , in which it had been called upon to take part as a defendant or CARDINAL party .

According to ORG , the cooperative director whose DATE term of office had expired in DATE had falsified documents attesting untrue facts and used them to the detriment of the members of the cooperative . According to those documents , PERSON had invested more money than planned in the construction work and the cooperative was consequently indebted towards it . As a result , the members of the cooperative had to pay this debt , which amounted to MONEY . In reality , this additional investment had never existed . The department submitted that , as victims of this abuse of power , the members of the cooperative had been deprived of their possessions and that multiple proceedings were being brought before the courts in this connection . It requested the prosecutor 's office to examine the question of criminal proceedings against the director of the cooperative .

No information had been provided by the parties with respect to the further course of the investigation .

Article CARDINAL of LAW of the RSFSR , which was in force at the material time , provides that that a person who has become a member of a cooperative on the basis of a decision by a general meeting of that cooperative is to receive a flat with a surface area calculated in relation to the number of persons in his or her family and in relation to the amount of his or her share allocation .

In accordance with LAW of GPE , title to a property , public registration of which is required by law , takes effect at the time that title is registered .

Under LAW of LAW , a member of a housing construction cooperative may acquire title to the property in question after paying in full the share allocation for a flat .


The applicant is a NORP national , born in DATE and living in GPE . She is represented before the Court by PERSON , a solicitor practising in PERSON .

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

The applicant was born into a gypsy family and travelled in a caravan in a nomadic way of life throughout her childhood . This continued after her marriage at DATE to her husband who is also a gypsy . They travelled mainly in GPE and GPE , working on farms . They often stopped at a site in PERSON , where their CARDINAL children were born .

DATE , the applicant and her family were continually harassed by the police or local authority officials , being required to move on . They were able to obtain a place on a local authority site where they stayed until DATE . They were given notice to quit apparently due to her husband ’s use of a lorry on the site .

After DATE of travelling , the applicant and her family moved on to a site in GPE which they had bought . They intended to develop the land as a commercial nursery garden . In DATE , their caravan was stolen and they moved into the workshop building on the land .

The applicant ’s application for planning permission for a mobile home was refused but on appeal , in DATE , they were given CARDINAL years’ temporary permission while they established their nursery business . In his decision of CARDINAL DATE , ORG said , inter alia :

“ the appeal site is in LOC and it is located in open countryside beyond the confines of any village . The site is not in a location where residential accommodation would normally be allowed …

At my site visit , I saw little to demonstrate a productive nursery … Without clear evidence of a firm intention and ability to develop the business I do not consider that a permanent dwelling can be justified by such an enterprise … on agricultural grounds … .

I now turn to the question of gypsy status and the matters which flow from that . There is no doubt that the ORG have impeccable gypsy antecedents … I have no hesitation in concluding that the < applicant > and her husband are gypsies in statutory terms and entitled to the considerations which flow from that . …

GPE is a designated area under LAW which means that the Secretary of ORG was satisfied that adequate accommodation had been provided for gypsies residing in or resorting to the area . There is no evidence that a major problem of provision has developed in the area since designation . Within the district there are CARDINAL council sites and CARDINAL private site . There are CARDINAL plots at ORG , CARDINAL at Pepperstock and CARDINAL mobile homes at Jockey farm . DATE , the twice yearly counts showed no unauthorised sites in the district ; this rose to CARDINAL families in DATE and fell to DATE . The ORG consider that they can accommodate any genuine need within the existing sites , however there is a waiting list of CARDINAL for Pepperstock and CARDINAL at ORG . I appreciate that pitches do become available from time to time but there is no immediate prospect of CARDINAL becoming available particularly in light of the waiting lists . I understand that there is a transit site at GPE QUANTITY away , which the ORG use as a temporary expedient until a pitch on a permanent site becomes available . I understand that a move to the PERSON site would mean that < the applicant > would not have the continuity of medical care which is advantageous to her . Moreover , it would put both of them at some considerable distance from what appears to be their source of income , the appeal site . I am therefore not satisfied that suitable alternative accommodation would be available to them were I to uphold < the enforcement notice > even within an extended compliance period .

While I recognise that it might sometimes be necessary to allow gypsy sites in LOC and that private site provision can be advantageous , I do not find the need for further permanent provision in this case to be such as to outweigh the strong planning policy objection to additional residential development in the countryside . I appreciate that the buildings on the land are likely to remain and the visual impact of a caravan would therefore be limited but , by itself , that is not a compelling argument for allowing a permanent residential use in LOC . However , in the light of the lack of suitable alternative provision for the PERSON on an official gypsy site in the near future I consider I would be justified in granting them a personal permission limited to DATE to enable them to make proper alternative arrangements … ”

In DATE , a fire broke out destroying much of the applicant ’s office workshop and her stock in trade .

Before the expiry of the temporary permission , the applicant applied in DATE for planning permission to live on her land as a gypsy invoking the relevant government circulars .

In DATE , planning permission was refused by the local authority . On appeal , ORG held a public inquiry on DATE . On DATE , he upheld the refusal of planning permission , stating inter alia :

“ The site is within confirmed PERSON , and at the inquiry it was accepted on behalf of < the applicant > that the development now under consideration is not “ appropriate ” in terms of LOC policy . Therefore having regard to the development plan and national planning guidance , I consider that the main issue in these appeals is whether there are very special circumstances which could justify making an exception to the normal , firm presumption against inappropriate development within FAC . …

For the < applicant > heavy reliance was placed on Circular DATE … It was pointed out that the current development plan … does not … ’identify locations suitable for gypsy sites’ or set out ‘ … clear , realistic criteria for suitable locations , as a basis for site provision policies.’

That is so . However , even if the development plan were fully in accord with the Circular , it is highly unlikely that the appeal site would be among the pieces of land identified for a gypsy caravan site , either on a site specific basis or ‘ criteria’ basis …

In GPE , there are CARDINAL local authority sites , on which from time to time vacancies do arise . … it appears to me , on the basis of the regular CARDINAL DATE official counts , that the level of need for additional authorised sites in the district is low . …

A linked issue is the extent of the difficulty the < applicant and her husband > would personally have in finding another private gypsy site , if they had to leave their present one . I accept I would be difficult to find a site in GPE . .. The < applicants are local people , but it would not be unreasonable , in my view , to expect them at least to search for sites elsewhere in GPE , or in the districts bordering on GPE .

It was claimed that since the temporary planning permission was granted in DATE the < applicant and her husband > have made ‘ strenuous efforts’ to find alternative accommodation . I do not agree that this is the case . From the evidence I was given , the main efforts appear to have been CARDINAL telephone calls to the council and a number of letters to local estate agents since the appeals were lodged . … I do not regard these efforts as anything like sufficient to establish that there is no prospect of finding some alternative accommodation which it would be reasonable to expect the < applicant and her husband > to accept . ”

The inspector noted that the applicant received injections twice a day for diabetes and that her husband suffered from chronic bronchitis and asthma . This indicated that they would benefit from a more settled lifestyle within a reasonable distance of medical services . He observed that these conditions could also be fulfilled in a mobile home park , of which there were several located within the district . Nor did he find that the agricultural use of their land was such as to require that they live on the site . He did however extend the period of compliance by DATE with reference to their organising what they would do with regard to accommodation , etc .

On DATE , the applicant ’s appeal against that decision under section CARDINAL of ORG DATE was dismissed by ORG .

Counsel advised against appeal to ORG on grounds of lack of prospects of success .

ORG as amended by ORG DATE ) ( “ the DATE LAW ) consolidated pre - existing planning law . It provides that planning permission is required for the carrying out of any development of land ( section CARDINAL of LAW ) . A change in the use of land for the stationing of caravans can constitute a development ( ORG v. Secretary of ORG for the Environment and GPE [ DATE ] ORG Law CARDINAL ; PERSON v. Secretary of ORG for the Environment and South Hertfordshire District Council [ DATE ] ORG ) .

An application for planning permission must be made to the local planning authority , which has to determine the application in accordance with the local development plan , unless material considerations indicate otherwise ( section CARDINALA of LAW ) .

The DATE Act provides for an appeal to the Secretary of ORG in the event of a refusal of permission ( section CARDINAL ) . With immaterial exceptions , the Secretary of ORG must , if either the appellant or the authority so desire , give each of them the opportunity of making representations to an inspector appointed by the Secretary of ORG . It is established practice that each inspector must exercise independent judgment and must not be subject to any improper influence ( see the PERSON the GPE judgment of CARDINAL DATE , Series A no . CARDINAL-A , p. CARDINAL , § DATE ) . There is a further appeal to ORG on the ground that the Secretary of ORG ’s decision was not within the powers conferred by LAW , or that the relevant requirements of LAW were not complied with ( section FAC ) .

If a development is carried out without the grant of the required planning permission , the local authority may issue an “ enforcement notice ” if it considers it expedient to do so having regard to the provisions of the development plan and to any other material considerations ( section CARDINAL ( CARDINAL ) of LAW ) .

There is a right of appeal against an enforcement notice to the Secretary of ORG on the grounds , inter alia , that planning permission ought to be granted for the development in question ( section CARDINAL ) . As with the appeal against refusal of permission , the Secretary of ORG must give each of the parties the opportunity of making representations to an inspector .

Again there is a further right of appeal on a point of law to ORG against a decision of the Secretary of ORG under section CARDINAL ( section CARDINAL ) . Such an appeal may be brought on grounds identical to an application for judicial review . It therefore includes a review as to whether a decision or inference based on a finding of fact is perverse or irrational ( NORP v. Secretary of ORG for ORG , ex parte PERSON [ DATE ] Appeal Cases CARDINAL , CARDINAL ORG ) . ORG will also grant a remedy if the inspector ’s decision was such that there was no evidence to support a particular finding of fact ; or the decision was made by reference to irrelevant factors or without regard to relevant factors ; or made for an improper purpose , in a procedurally unfair manner or in a manner which breached any governing legislation or statutory instrument . However , the court of review can not substitute its own decision on the merits of the case for that of the decision - making authority .

Where any steps required by an enforcement notice to be taken are not taken within the period for compliance with the notice , the local authority may enter the land and take the steps and recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so ( section CARDINAL of LAW ) .

The purpose of ORG and the operation of the policy to protect them is set out in the national policy document FAC ( DATE ) .

“ CARDINAL . The Government attaches great importance to GPE , which have been an essential element of planning policy for DATE . …

The fundamental aim of LOC policy is to prevent urban sprawl by keeping land permanently open ; the most important attribute of ORG is their openness . Green Belts can shape patterns of urban development at sub - regional and regional scale , and help to ensure that development occurs in locations allocated in development plans . They help to protect the countryside , be it in agricultural , forestry or other use . They can assist in moving towards more sustainable patterns of urban development .

There are CARDINAL purposes in GPE :

- to check the unrestricted sprawl of large built - up areas ;

- to prevent neighbouring towns from merging into one another ;

- to assist in safeguarding the countryside from encroachment ;

- to preserve the setting and special character of historic towns ; and

- to assist in urban regeneration by encouraging the recycling of derelict and other urban land . …

NORP The essential characteristic of GPE is their permanence . Their protection must be maintained as far as can be seen ahead . …

The general policies controlling development in the countryside apply with equal force in Green Belts but there is , in addition , a general presumption against inappropriate development within them . Such development should not be approved , except in very special circumstances . …

Inappropriate development is , by definition , harmful to LOC . It is for the applicant to show why permission should be granted . Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness , and any other harm , is clearly outweighed by other considerations . In view of the presumption against inappropriate development , the Secretary of ORG will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development . ”


David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

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

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

On DATE ORG ( ORG “ the Fund ” ) granted to a limited liability company wholly owned by the applicant a state guarantee , as it was exporting its products to GPE . On CARDINAL DATE the company transferred all its rights related to the above - mentioned guarantee to a bank . The transfer was confirmed by ORG on DATE . Later the bank set off the amount of the guarantee from the company ’s account without the applicant ’s approval . Civil proceedings were instituted against the bank in relation to the state guarantee in question . On DATE ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) gave a final decision in which the set off was approved by the court .

The applicant apparently learned about the above - mentioned ORG decision for the first time on DATE . He immediately requested that the proceedings be reopened as ORG had failed to communicate to him a statement which it had received from the ORG during the first part of the proceedings . ORG rejected the applicant ’s request on DATE , finding that even though the court had indeed failed to communicate the document in question , the proceedings had been in conformity with the law as in force at the time .

On DATE the applicant and another person gave a directly enforceable guarantee to cover the debt of the applicant ’s company . The debt fell due on DATE and was not paid .

On DATE the creditor bank initiated civil proceedings in ORG ( käräjäoikeus , tingsrätten ) requesting the company , the applicant and the third person to pay the debt .

On DATE the creditor bank requested that the applicant ’s assets be sequestrated . ORG granted the sequestration order on DATE .

On DATE ORG asked the defendants to indicate clearly in writing whether or not they contested the claim at the risk of a default judgment . The applicant and his co - defendants filed their statements of reply on DATE respectively but failed to indicate clearly their position . On DATE the ORG gave a default judgment in which it ordered the applicant and his co - defendants to pay the debt . The judgment was served on DATE .

On DATE the applicant and his co - defendants lodged an appeal against the default judgment with ORG requesting a stay of execution and that the default judgment be quashed and the claims of the creditor bank be rejected . On DATE ORG ordered a stay of execution of the default judgment .

Meanwhile , the applicant also lodged a procedural complaint with ORG ( hovioikeus , hovrätten ) , requesting that the default judgment be quashed . On DATE ORG stayed the execution of the default judgment . On DATE the court dismissed the complaint without considering the merits as the case was still pending before ORG . The stay of execution given by the court on DATE expired .

The ORG proceedings comprised CARDINAL different sets of civil proceedings , namely the applicant ’s claim for a refund of benefit by unjust enrichment , the appeal against the default judgment and an action for damages , which was subsequently withdrawn . ORG asked the creditor bank to submit its replies by DATE and CARDINAL DATE . The applicant was asked to give his reply by CARDINAL DATE but this time - limit was extended several times until DATE . A preparatory hearing was scheduled for DATE but it was cancelled as the applicant had brought a criminal action for aggravated abuse of public office against the presiding judge . These charges were subsequently found manifestly ill - founded .

Another judge was appointed to the case . In DATE the creditor bank proposed that , in order to avoid partiality issues , the matter be adjudicated in a formation of CARDINAL judges instead of CARDINAL and that the judges be appointed jointly with ORG . Later on the parties , however , gave their consent to the single judge composition . The CARDINAL sets of civil proceedings were joined on DATE .

In DATE the applicant requested that an oral hearing concerning the criminal proceedings , which related to the bankruptcy proceedings of the company and which were pending before the same court , be held before an oral hearing in the civil proceedings . Despite this request , the preparatory hearings in the civil proceedings were held on DATE and DATE . On DATE the applicant indicated that if no oral hearing was held in the criminal case before an oral hearing was held in the civil case , he would bring a criminal action against the presiding judge . On DATE he brought such action for abuse of public office against the presiding judge which he later , however , abandoned . A continued preparatory hearing and the oral hearing in the civil case were held in DATE .

On DATE the ORG quashed the default judgment and rejected the creditor bank ’s claims as far as the applicant was concerned . As far as the company was concerned , the court rejected its appeal and upheld the default judgment . The stay of execution given by the court on DATE expired .

In DATE all parties to the case appealed to ORG . The applicant ’s appeal only concerned costs and expenses . The company requested that the default judgment be quashed and that the claims of the creditor bank be rejected .

On DATE ORG stayed the execution of ORG judgment . In DATE and DATE the applicant was asked to supplement his appeal , which he did on DATE and DATE respectively . DATE and DATE the applicant continually submitted letters to the court at DATE intervals .

The court held a preparatory hearing on DATE . On DATE , DATE before the scheduled oral hearing , the applicant entered a disqualification plea against the presiding judge of the court . This plea was rejected as manifestly ill - founded during the oral hearing on DATE .

On DATE ORG accepted the applicant ’s appeal and he was freed from the obligation to pay costs and expenses . For the rest , the court upheld ORG judgment . The stay of execution given by the court on DATE expired .

The applicant and the company appealed to ORG ( korkein oikeus , högsta domstolen ) . On DATE ORG refused leave to appeal .


Violation of Art. 6-1 and 6-3-c;No violation of Art. 6-1 and 6-3-c

Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant was born in DATE and is currently serving his prison sentence in LOC .

The applicant was charged with possession of firearms and several counts of robbery . The pre - trial proceedings were concluded in DATE and then the case against the applicant and QUANTITY other persons was submitted to ORG for trial .

During the preliminary hearing on DATE , the presiding judge informed the defendants of their procedural rights , including , in particular , the right to free legal assistance , the right to meet with their lawyers without restrictions , the right to bring an appeal against a trial court 's judgment , the right to participate in the appeal hearing and the right to defend themselves through all lawful means .

On DATE ORG convicted the applicant as charged and sentenced him to DATE imprisonment .

In the operative part of its judgment , the trial court informed that any appeal had to be lodged with ORG of GPE within DATE . The time - limit for the defendants started running from DATE when they were served with a copy of the judgment . For other participants in the proceedings , it would run from DATE of pronouncement of the judgment . There was no further information as to the right of the defendants to ask the authorities to ensure their participation in an appeal hearing .

Both the applicant and his counsel , who he had chosen and who had represented him at the trial , lodged their appeals challenging ORG judgment on factual and legal grounds , without stating the wish to take part in the appeal hearing . They claimed , in particular , that the trial court 's findings had not been based on the facts of the case and that the court had used for the applicant 's conviction the evidence obtained in breach of the criminal procedural law . It appears that some time later the applicant discharged his representative owing to a lack of financial means .

On DATE ORG despatched a summons for an appeal hearing . It contained several words :

“ For information ... the case of PERSON is to be heard on DATE at CARDINAL ” .

The applicant was served with the court notification on DATE .

On DATE ORG held an oral hearing . The applicant and his lawyer did not appear . The appeal court did not examine the question whether they had been duly summoned and , if they had not , whether the examination of their appeals should have been adjourned . The public prosecutor and CARDINAL of the applicant 's co - defendants were present and made their submissions . The prosecutor , in particular , asked to re - categorise the crime and uphold the trial court 's judgment in the remaining part . On DATE ORG delivered a judgment by which it dismissed the applicant 's appeal as being unsubstantiated and upheld his conviction and sentence in their entirety .

NORP In the operative part of a judgment , a trial court shall inform of the manner and the time - limit for lodging an appeal . Furthermore , it shall explain that a convicted or acquitted person has a right to ask that his or her participation in an appeal hearing be ensured ( LAW ) .

If a convicted person wishes to take part in an appeal hearing , he or she shall indicate this in the statement of appeal ( Article CARDINAL § CARDINAL ) .

The parties shall be notified of the date , time and venue of an appeal hearing DATE in advance ( LAW ) .

A convicted person , who is held in custody and has expressed the wish to be present at the appeal hearing , shall be entitled to participate in the court session either directly or by video link ( LAW ) .

At the hearing , the appeal court shall hear the statement of the appellant and the objection by the opposing party . The appeal court shall be empowered to examine evidence and additional materials provided by the parties in support of their arguments ( Article CARDINAL ) .

The appeal court may decide ( CARDINAL ) to dismiss the appeal and uphold the judgment , ( CARDINAL ) to quash the judgment and terminate the criminal proceedings , ( CARDINAL ) to quash the judgment and remit the case for a fresh trial , or ( CARDINAL ) to amend the judgment ( Article CARDINAL ) .

A judgment shall be quashed or amended on appeal if there is an inconsistency between the conclusions reached by the trial court and the facts of the case established by that court . Violation of procedural law and wrongful application of criminal law , as well as unfairness of the judgment , shall also constitute grounds for reversing or changing the judgment ( Article CARDINAL ) .

In case an accused requests free legal assistance or the interests of justice require that the defence be represented , the relevant authority , that is an investigator , a prosecutor , or a court , shall appoint him or her legal - aid counsel ( Articles CARDINAL of LAW ) .

The Constitutional Court of GPE , in its decision no . CARDINAL-O of DATE , confirmed the applicability of the requirements of LAW to the appellate proceedings .

A trial court 's judgment becomes final and binding on DATE of the appeal hearing , provided that it was upheld by the appeal court ( LAW and LAW ) .