Corneliu Bîrsan;David Thór Björgvinsson;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Isabelle Berro-Lefèvre

The applicants , Mr PERSON , PERSON , PERSON , Mr PERSON and Mr PERSON , are NORP nationals who were born in DATE , DATE , DATE , DATE and DATE respectively .

Mr PERSON , PERSON and Mr PERSON live in GPE , PERSON lives in ORG and Mr PERSON lives in GPE .

The application was lodged together with CARDINAL more applicants , who died during the proceedings : Mr PERSON , who was born in DATE , lived in GPE and died on CARDINAL DATE , and Mr PERSON , who was born in DATE , lived in GPE and died on DATE .

The applicants were represented by Mr PERSON .

ORG ( “ the Government ” ) were represented by their Agent , PERSON , ORG Attorney - General .

In accordance with LAW , the Registrar informed ORG of their right to submit written comments . In their reply of DATE , ORG did not indicate that they wished to exercise their right .

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

The applicants are heirs of Mr PERSON and his wife , PERSON PERSON .

NORP The PERSON family has lived in what is DATE GPE since DATE . By DATE they had acquired , exclusively by purchase , extensive real estate and numerous companies , as well as movable assets ( such as objects of art , etc ) .

After the Second World War , GPE became a constituent part of the newly formed NORP Federal GPE . Its former legislative body was ORG for ORG ( “ the LAW ” ) , the highest political body in GPE during and immediately after the Second World War . On DATE it adopted a decree ( “ the ORG decree , ” see under “ Relevant domestic law and practice ” ) which prescribed , inter alia , the nationalisation of all property belonging to ORG and its citizens which was on the territory of GPE , of people of NORP origin , except those who were fighting for the national liberation movement , and finally , of all persons who were criminally convicted by a military or an ordinary court and sentenced to forfeiture of their property ( see “ Relevant Domestic Law and Practice ” ) .

On DATE ORG convicted PERSON PERSON and PERSON of the offence of high treason during the Second World War . Mr PERSON was sentenced to DATE and PERSON to DATE deprivation of liberty with forced labour . They were also stripped off of their political and civil rights and ordered to forfeit all their property to the ORG .

Probably towards DATE , PERSON , PERSON and Mr PERSON ( the first son of PERSON ) lost their lives in a work camp in circumstances that still remain unclear . On DATE ORG ( in GPE ) adopted a decision to the effect that Mr PERSON and PERSON should be deemed no longer to be alive after DATE .

On DATE , after the independence of GPE and the change of the political regime , the ORG of ORG ( PERSON v Mariboru ) , at the request of Mr PERSON and Mr PERSON , decided to reopen the criminal proceedings against Mr PERSON and PERSON . On DATE ORG withdrew the indictment against Mr PERSON and PERSON . Consequently , ORG quashed the convictions and discontinued the criminal proceedings against them . The decision became final on DATE .

On DATE Mr PERSON also lodged a request for declaratory decisions concerning the citizenship of Mr PERSON and PERSON with the GPE . On DATE the Municipality adopted CARDINAL decisions certifying that Mr PERSON and PERSON were NORP and NORP citizens until their death .

On DATE LAW ( Zakon o denacionalizaciji , see “ LAW and Practice ” ) came into force , following which the applicants lodged a request for restitution of the property forfeited by PERSON and PERSON with ORG of the Slovenska Bistrica Municipality 's ORG ( ORG za denacionalizacijo , Skupščina Občine PERSON ) . On DATE the latter informed the applicants that their request was incomplete , informed them about the requirements set forth by LAW and instructed them to amend their request .

DATE and DATE , the applicants lodged claims for restitution of property under LAW with the GPE , GPE , GPE and FAC GPE , respectively . At an undetermined time , a claim under the same provisions was lodged with ORG .

On DATE the applicants and a company , PERSON . , reached an out - of - court settlement regarding the restitution of a part of the company 's property which constituted a part of the property the applicants claimed in the proceedings before GPE . The applicants were awarded company shares worth QUANTITY . The settlement was confirmed by GPE on DATE and the proceedings concerning this property were terminated .

On DATE the Act on Temporary , Partial Suspension of Restitution of Property ( Zakon o začasnem , delnem zadržanju vračanja premoženja ) was adopted , which temporarily suspended the restitution of certain types of property , and which affected also the denationalisation proceedings to which the applicants were parties .

On DATE the applicants withdrew all their claims made under LAW , and started restitution proceedings under LAW ( Zakon o izvrševanju kazenskih sankcij , see below , and under “ Relevant domestic law and practice ” ) . Consequently , the different sets of denationalisation proceedings to which the applicants were parties were terminated .

On DATE the applicants also instituted proceedings against GPE in ORG ( Okrožno sodišče v PERSON ) , seeking compensation for the loss of profit they had incurred by being prevented from using the forfeited property . At an undetermined time , the proceedings were stayed until the termination of the proceedings concerning the restitution of the property ( see below ) .

On DATE the Act on the Temporary Suspension of Certain Provisions of the Denationalisation Act and of LAW ( Zakon o začasnem zadržanju izvajanja nekaterih določb zakona o denacionalizaciji in zakona o izvrševanju kazenskih sankcij , see “ Relevant domestic law and practice ” ) was adopted . This resulted again in a stay of all the proceedings to which the applicants were parties .

NORP In DATE , after withdrawing their restitution claims under LAW , the applicants lodged requests for restitution of property under the provisions of LAW ( Zakon o izvrševanju kazenskih sankcij , see “ Relevant domestic law and practice ” ) with CARDINAL ORG .

On DATE the applicants instituted uncontentious civil proceedings in the ORG ( ORG sodišče v PERSON ) against CARDINAL legal entities , among them GPE , GPE ( Občina Slovenska Bistrica ) , the Farmland and Forest Fund of GPE ( Sklad kmetijskih zemljišč in gozdov PERSON , “ the Fund ” ) and several museums . They requested restitution of numerous plots of land , buildings , an extensive collection of art paintings , and other property taken from their predecessors , Mr PERSON and PERSON , following ORG judgment of CARDINAL DATE . They also requested the court to allow certain interim measures preventing the sale or encumbrance of the property at issue , which was at the time in the possession of the company PERSON .

After a hearing held on DATE , the court on DATE allowed the interim measure . After CARDINAL subsequent sets of appellate proceedings and new requests for re - examination of the case , ORG ( PERSON ) on DATE confirmed the first - instance court decision on the interim measure as final .

On DATE the applicants urged the court to decide promptly on the case .

On DATE the court delivered a decision inviting the applicants to amend their request of DATE in order to satisfy the requirements under LAW .

On DATE , upon the applicants ' request , the court extended the deadline for DATE .

On DATE the applicants lodged written submissions supplementing their original request .

On DATE the court issued a decision rejecting the applicants ' request with respect to CARDINAL adversaries since the applicants had failed to amend correctly their request . With respect to the other CARDINAL adversaries , the court found that under LAW they were not the entities liable for restitution of property . The applicants ' respective requests were therefore dismissed . The decision was served on the applicants on DATE .

On DATE the applicants appealed to ORG . They also appealed against the decisions of DATE and DATE .

On DATE the court allowed the applicants ' appeals , set aside the CARDINAL impugned decisions and remitted the case to the Slovenska Bistrica Local Court .

On DATE the ORG held a hearing and heard submissions from the applicants and their CARDINAL opposing parties .

On DATE the court , by an interim decision , upheld the applicants ' claim and decided that Mr PERSON and PERSON ORG were entitled to restitution of all the property taken from them in DATE . The court found that the property in question had not been forfeited already by the nationalisation provisions of the LAW decree of DATE , but only by the later criminal judgment of ORG handed down on CARDINAL DATE . Therefore , the property should be returned to the applicants according to LAW , and not under the provisions of LAW .

On DATE and DATE the GPE , GPE and the ORG appealed to ORG .

On DATE the applicants replied and on DATE they requested priority treatment of their case , which was granted .

On DATE ORG dismissed the appeals and upheld the decision of the first - instance court . The decision was served on the applicants on DATE .

On DATE GPE lodged an appeal on points of law with ORG sodišče ) .

On DATE the applicants replied . On DATE they lodged additional documents and requested the court to decide promptly on the case .

On DATE ORG set aside the decisions of the second- and first - instance courts in the part concerning GPE and remitted the case to the first - instance court for re - examination . As for the other adversary parties to the proceedings , including GPE , the decision of ORG of DATE became final . The court found that LAW was not necessarily the right basis for the restitution of the property in this case . It instructed the first - instance court to establish clearly whether the property at issue had been confiscated already by the nationalisation provisions of the ORG decree of DATE , or by the criminal judgement of CARDINAL DATE . If the property had already been nationalised by the ORG decree , the property should be returned under the denationalisation provisions of LAW and subject to the limitations for restitution set forth in that LAW . If , on the other hand , the forfeiture of the property had been ordered as a penal sanction following the conviction , the property should be returned under LAW .

On DATE GPE lodged preliminary written observations .

On DATE the applicants specified before the ORG which plots of land should be returned by GPE further to ORG decision of DATE .

The proceedings before the Slovenska Bistrica Local Court are still pending .

On DATE the applicants instituted uncontentious proceedings against GPE , GPE ( PERSON ) , ORG and CARDINAL other legal entities in ORG ( ORG sodišče v ORG ) . They requested restitution of the property forfeited by PERSON and PERSON , which was at the time allegedly in the possession of these entities . They also requested an interim measure prohibiting the sale or encumbrance of the property .

On DATE , DATE , DATE and DATE the applicants requested the court to start processing their case and to inform them of the application number of their case .

At an undetermined time , the judge dealing with the case was replaced .

On DATE the court held a hearing which was adjourned sine die to allow the applicants to prepare a reply to the submissions of the adversaries . In addition , the court requested the applicants to supplement their request for an interim measure of DATE .

On DATE the court dismissed the request for an interim measure . The applicants appealed against this decision to ORG ( PERSON sodišče v PERSON ) on DATE . It is not determined what was the final decision of the court regarding the interim measure .

In DATE , the acting judge was again replaced .

On DATE the applicants lodged written submissions with ORG , specifying their claims .

DATE . On DATE the court held a hearing , took submissions from the parties and adjourned the hearing until DATE .

At the hearing held on DATE , the court decided to issue a partial decision .

By a letter of CARDINAL DATE , the applicants requested the court to issue the decision , as announced on DATE . They also lodged a supervisory appeal .

On DATE the first - instance court held another hearing and on DATE it issued a partial decision , stating that Mr PERSON and PERSON were entitled to restitution of all the property taken from them in DATE . The court found that the property in question had been forfeited by the criminal judgment and not by the ORG decree . Hence , the applicants ' claims made under LAW were justified and should be upheld .

On DATE and DATE respectively , GPE and GPE appealed against this decision to ORG .

The proceedings are still pending .

On DATE the applicants instituted uncontentious proceedings against GPE , GPE ( PERSON ) the Farmland and Forest Fund and CARDINAL other legal entities in ORG . They requested restitution of the property forfeited by Mr PERSON and PERSON , which was at the time allegedly in the possession of these entities . They also requested that an interim measure be issued prohibiting the sale or encumbrance of the property .

On DATE the court upheld the applicants ' requests for an interim measure . GPE objected to this decision . The applicants replied to this objection on DATE .

On DATE the court held a hearing .

On DATE , DATE and DATE the applicants urged the court to decide on the objection and resume the proceedings on the merits of the case .

On DATE the court rejected the objection of GPE . The court also dismissed the applicants ' request that their adversaries transfer possession of the property in question to the applicants for the duration of the proceedings .

On DATE and on DATE the court held hearings . The latter was adjourned due to the objection of CARDINAL parties as to the jurisdiction of the court . It is not certain when the court dismissed this objection .

On DATE the court delivered a partial decision . It found that under LAW , GPE was liable to return to Mr PERSON certain plots of land and that he should be registered as the owner of these properties in ORG ( PERSON knjiga ) . The court decided to defer issuing a decision concerning the remainder of the claims . The decision was served on the applicants on DATE .

On DATE and DATE , respectively , GPE and the ORG appealed to ORG .

On DATE ORG allowed the appeals in part , because the first - instance court had wrongly decided which of the parties was liable for the return of the property . In this respect the case was remitted to the first - instance court for re - examination .

On DATE and DATE , respectively , GPE and the ORG lodged an appeal on points of law with ORG .

On DATE the applicants requested priority treatment of their case . In a letter of DATE , ORG informed them that cases such as the applicants ' , which concern the restitution of property on the basis of LAW , were regularly dealt with priority .

On DATE ORG allowed the appeals on points of law , set aside the decisions of the first- and second - instance courts and remitted the case to ORG for re - examination . The court found that LAW was not necessarily the basis for the restitution of the property in this case . The first - instance court would need to establish clearly whether the property at issue had been confiscated by the ORG decree or by the criminal judgment . The decision was served on the applicants on DATE .

On DATE the first - instance court held another hearing .

The proceedings are still pending .

DATE . On DATE the applicants instituted uncontentious proceedings against GPE , FAC ( PERSON FAC ) ORG and CARDINAL other legal entities in LOC ORG ( ORG sodišče v ORG pri GPE ) . They requested restitution of the property forfeited by Mr PERSON and PERSON , which was at the time allegedly in the possession of these entities .

The hearings scheduled for DATE and DATE were cancelled .

On DATE the court held a hearing and requested the applicants to specify their claim and amend it so as to meet the requirements set by the law .

On DATE the applicants lodged preliminary written submissions and increased their claim by seeking damages due to the dilapidation of some real estate .

A hearing scheduled for DATE was cancelled .

On DATE the court held a hearing and adjourned it until DATE in order to acquire the criminal file and documents related to the forfeiture of the property from ORG ( PERSON arhiv PERSON ) . The rescheduled hearing was subsequently cancelled because the requested files had not yet been delivered .

The hearing scheduled for DATE was cancelled .

On DATE the court held a hearing which was adjourned . The applicants were given DATE to submit additional documents .

DATE . On DATE and DATE the court held hearings . The latter hearing was adjourned , since the court had found that there existed a discrepancy between the transcripts from ORG and the facts established by the court . The applicants were ordered to furnish documents identifying all the plots of land claimed within DATE .

On DATE the court held a hearing and decided to deliver a written decision .

On DATE the court delivered a written decision . It decided that it had no jurisdiction to hear the case and set aside all the procedural steps taken . This decision was consistent with its finding that the property in question had not been confiscated by the judgment of ORG but by the ORG decree , and should thus be sought under LAW and before the competent authorities . The court also found that PERSON had not been the ( PERSON of the property claimed . On DATE the decision was served on the applicants .

On DATE the applicants appealed to ORG ( PERSON v PERSON ) .

On DATE the applicants sought priority treatment of their case in ORG .

On CARDINAL DATE the applicants again sought priority treatment of their case in ORG and submitted ORG case - law references in similar cases .

On DATE ORG allowed the appeal in part and remitted the case for re - examination . The decision was served on the applicants on DATE .

The remainder of the case was given a new application number .

On DATE the court held a hearing .

On DATE the court held a hearing and decided to deliver an interim and a partial decision in writing .

On DATE the court found that Mr PERSON and Ms PERSON were entitled to the restitution of property , since it had been forfeited by the criminal judgment of ORG . The court ordered the ORG to return to the applicants several plots of land . The decision was served on the applicants on DATE .

On DATE the applicants appealed to ORG against the decisions concerning the costs and expenses . On DATE , respectively , ORG and the ORG cross - appealed . GPE also cross - appealed .

On DATE the applicants requested ORG for priority treatment of their appeal .

On DATE the applicants again sought priority treatment of their case .

On DATE the president of ORG informed the applicants that their case would be dealt with after the court 's DATE recess .

On DATE ORG allowed the applicants ' appeal in part and allowed the appeals of their adversaries . The decision of the first - instance court was set aside and remitted for re - examination . The court found that the first - instance court had failed to take into consideration the latest case - law of ORG concerning the interpretation of the legal effects of the ORG decree . The decision was served on the applicants on DATE .

On DATE the court held a hearing and decided to issue a written decision .

On DATE the first - instance court dismissed all the applicants ' claims . It held that the property at issue had been confiscated by the ORG decree and not by the criminal judgment . Therefore , restitution could not be sought under the provisions of LAW , but rather under LAW .

On DATE the applicants appealed to ORG .

On DATE the court allowed the appeal , set aside the judgment of the first - instance court and remitted the case for re - examination . The decision was served on the applicants on DATE .

On DATE the first - instance court held a hearing . After being asked by the applicants to stay the proceedings due to the out - of - court settlement procedure taking place between the parties , the court adjourned its decision for DATE .

On DATE the court held a hearing and decided to deliver the final decision in writing .

The proceedings are still pending .

On DATE , ORG for ORG ( ORG ) adopted the Decree on ORG , on ORG and on ORG which ORG Odlok o prehodu sovražnikovega imetja v državno svojino , o državnem upravljanju imetja odsotnih oseb in o zasegi imetja , ki so ga okupatorske oblasti prisilno odtujile , “ the ORG decree ” ) , which entered into force on DATE . Its section CARDINAL provided for nationalisation of the following categories of property :

a ) all the property of ORG and its citizens which is on the territory of GPE ;

b ) all the property of people of NORP origin , except those who were fighting for the national liberation movement and its partisan forces , or are the citizens of neutral countries and did not act for the enemy side ;

c ) all the property of war criminals and their supporters , irrespective of their nationality , as well as all the property of every person who was convicted by an ordinary or a military court and sentenced to forfeiture of his or her property to the ORG .

LAW ( Zakon o denacionalizaciji , ORG no . CARDINAL ) formed the basis for restitution of property ( or its value ) that had passed into ORG ownership through previous legislation ( agrarian reform , nationalisation , confiscation , etc . ) .

Section CARDINAL provides that all natural persons whose property had passed into ORG ownership on the basis of the listed legislation adopted in the aftermath of the Second World War , including the LAW decree , LAW and LAW against the Nation and the ORG , are entitled to denationalisation . LAW further specifies that all other natural persons whose property was nationalised by a legal act issued before DATE are entitled to denationalisation .

In section CARDINAL , LAW originally extended its provisions also to property forfeited by virtue of criminal judgments handed down before DATE . This provision was rescinded by ORG on DATE , partly on the ground that it was retroactive and therefore violated LAW ( decision no . ORG ) . According to these findings , the restitution of property which was forfeited by virtue of criminal judgments handed down before DATE should instead be governed by LAW .

On DATE , the Act on Temporary , Partial Suspension of Restitution of Property ( Official Journal no . CARDINAL/CARDINAL ) entered into force , which held in abeyance certain types of restitution proceedings for a period of DATE .

Prior to DATE amendments , LAW ( Zakon o izvrševanju kazenskih sankcij , ORG no . CARDINAL , CARDINAL/CARDINAL ) applied also to the restitution of property forfeited in criminal proceedings which had terminated before DATE and the decision of which had later been quashed .

The DATE LAW of , and Supplements to , LAW ( Zakon o spremembah in dopolnitvah PERSON o izvrševanju kazenskih sankcij , ORG no . CARDINAL ) made minor amendments to LAW .

It also added new ORG and CARDINALC to LAW . As far as the criminal proceedings terminated before DATE are concerned , ORG replaced LAW and referred to the provisions of LAW to govern the form and scope of restitution , the restrictions on restitution and the valuation of property in case of claims for restitution of property forfeited in criminal proceedings terminated DATE . Section CARDINALC expressly removed the right to compensation for the previous owner 's inability to make use of the property during the period of forfeiture .

Section CARDINAL made the change applicable in non - contentious and contentious proceedings concerning the restitution of confiscated property when such proceedings had commenced before the LAW came into force but had not become final by that time .

In DATE , further to ORG ruling of DATE , Section CARDINAL was amended again so that persons entitled under ORG might claim compensation for being unable to use or to manage the property or for loss of earnings incurred throughout the period running from the quashing of the forfeiture of the property until the decision on its restitution becomes final .

On DATE the Act on the Temporary Suspension of Certain Provisions of the Denationalisation Act and of LAW ( Zakon o začasnem zadržanju izvajanja nekaterih določb zakona o denacionalizaciji in zakona o izvrševanju kazenskih sankcij , ORG no . CARDINAL ) was adopted . Its LAW suspended , originally until DATE and subsequently , under new legislation , until DATE , proceedings concerning claims for the restitution of or compensation for property which had been confiscated by virtue of criminal judgments handed down before DATE , or which was of a “ feudal origin ” .

The following provisions of LAW ( PERSON , ORG no . CARDINAL ) are particularly relevant for the present case :

“ Everyone has the right to have any decision regarding his rights , duties and any charges brought against him made without undue delay by an independent , impartial court constituted by law .

“ Everyone shall have the right to compensation for damage caused by the unlawful acts of a person or body when performing a function or engaged in an activity on behalf of a state or local authority or as a holder of public office ... ”

On DATE ORG decided in favour of the applicants and some other individuals , who had lodged a constitutional appeal challenging the provisions of the LAW on the Temporary Suspension of Certain Provisions of LAW and of LAW . It ruled ( a joined decision U - I-CARDINAL/CARDINAL ) , that the legislator did not have a justified cause to differentiate between the claims for restitution of property of a feudal and non - feudal origin .

Following another constitutional appeal lodged by Mr PERSON and some other individuals , ORG ruled on DATE , ( a joined decision no . U - I-CARDINAL/CARDINAL ) , that the challenged provisions of section GPE and CARDINAL of the DATE LAW of , and Supplements to , LAW did not conflict with the LAW because such interference with the constitutional rights granted in LAW ( right to rehabilitation and compensation in criminal proceedings ) and CARDINAL ( right to own and inherit property ) of the LAW was indispensable for the protection of the rights of other claimants under LAW .

ORG further ruled that LAW on Amendments of , and Supplements to , LAW was in conformity with the LAW notwithstanding the fact that it retroactively interfered with acquired rights , because the retroactive effect of the LAW was justified by the public interest .

The LAW on the Protection of the Right to a Trial without undue Delay ( Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja , ORG , No . DATE ) has been implemented since DATE . Under its sections CARDINAL and CARDINAL , the right to a trial within a reasonable time is guaranteed for a party to court proceedings , a participant under the LAW governing non - contentious proceedings and an injured party in criminal proceedings .

Section CARDINAL provides for CARDINAL remedies to expedite pending proceedings - a supervisory appeal ( nadzorstvena pritožba ) and a motion for a deadline ( rokovni predlog ) - and , ultimately , for a claim for just satisfaction in respect of damage sustained because of the undue delay ( zahteva za pravično zadoščenje ) .


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

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

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

The applicant was employed as a mechanic and in DATE he had a nervous breakdown ( psykisk kollaps ) . On DATE he submitted an occupational injury report ( arbetsskadeanmälan ) to ORG ( Försäkringskassan , “ the Office ” ) of GPE in which he requested that his psychological problems be considered workrelated and thereby make him eligible for life annuity ( livränta ) . He claimed that his psychological problems had been caused by degrading treatment to which he had been subjected by his co - workers and his supervisor .

In a decision on DATE , ORG ( PERSON , “ the Board ” ) decided not to accept the applicant ’s mental illness as a work injury and found that the applicant ’s personality was the primary cause of his problems . The applicant and his representative at the time had been present at a meeting with ORG , before ORG made its decision .

The applicant appealed against the decision to ORG ( länsrätten ) in GPE , claiming that he had been subjected to degrading treatment at work . Through his legal representative he requested compensation under the DATE LAW ( lagen om arbetsskadeförsäkring , SFS CARDINAL:CARDINAL ) . In support of his claims he submitted written statements by CARDINAL former co - workers and several medical certificates .

ORG , in its assessment of the case , had access to the ORG ’s case - file and to extensive medical documentation , including copies of medical records and opinions given by several physicians and several of the ORG ’s own appointed doctors ( försäkringsläkare ) .

On DATE ORG rejected the applicant ’s appeal . It found that he had not sufficiently proved that , from an objective point of view , he had been subjected to treatment that was considered injurious in the eyes of the law . The court did not question the applicant ’s subjective perception of the alleged circumstances , but there was not sufficient objective evidence to hold that the applicant ’s supervisor and colleagues had acted in an incorrect manner . During the proceedings before ORG no oral hearing was requested by the applicant , nor did the court hold one on its own initiative .

The applicant appealed to ORG ( kammarrätten ) in GPE . He requested leave to appeal and maintained his claim . He further requested that an oral hearing be held in his case so that he could explain , under oath , the treatment to which he had been subjected and so that CARDINAL of the witnesses , who had previously given written statements , could be heard before the court under oath .

On DATE , the judge rapporteur at ORG drew up a memorandum stating that the applicant ’s legal representative had been informed over the phone that the court did not intend to hold an oral hearing before taking its decision regarding leave to appeal . The memorandum further stated that the applicant had been given a prolonged respite until DATE to submit additional documents .

In a final submission to the court , received on DATE , the representative supplemented the applicant ’s appeal .

On DATE ORG , which had access to ORG and ORG case - files , refused leave to appeal .

The applicant appealed to ORG ( Regerings - rätten ) . He stated that he had requested an oral hearing before ORG and that the purpose of the oral hearing had been presented . He also objected to the fact that ORG had failed to reject his request for an oral hearing in a separate decision . No request was made for an oral hearing before ORG .

On DATE ORG refused leave to appeal .

Domestic provisions of relevance in the present case are found in DATE Insurance Act ( lagen om arbetsskadeförsäkring , SFS CARDINAL:CARDINAL ) and ORG ( förvaltningsprocesslagen , ORG CARDINAL:CARDINAL , “ the DATE LAW ) . The DATE LAW has been incorporated into Chapters CARDINAL and CARDINAL of the Social insurance Code as of DATE .

According to LAW , section CARDINAL , of the DATE LAW , the term “ work injury ” mainly refers to injuries resulting from accidents or other harmful factors at a person ’s workplace . Under the LAW , all gainfully employed persons working in GPE are insured against work injuries .

For an injury to qualify as a work injury , a causal link must be established between the accident or harmful factor in the workplace and the insured person ’s health problems . At the relevant time , if it was clear that the insured person had been subjected to harmful factors at work , his or her medical problems were presumed to have been caused by the harmful factors unless there were substantially stronger grounds for a conclusion to the contrary ( LAW , section CARDINAL , of LAW in its wording before DATE , which applied to the present case ) .

Regarding mental and psychosomatic illnesses , the travaux préparatoires ( govt . PERSON pp . DATE and CARDINAL ) emphasise that some factors that are connected to work or work conditions , and that may give rise to a disturbance to mental health , are not such that the harmful effect that may occur should fall under LAW . Thus , it is in the nature of things that mental health disturbance as a result of , inter alia , shutting down work places , lack of appreciation of work efforts and discomfort with work tasks or colleagues should not give rise to compensation .

Section CARDINAL of the Administrative Court Procedure Act , as in force at the relevant time was worded as follows :

“ The procedure shall be in writing .

Where it may be assumed to be advantageous for the investigation or promote the expeditious determination of the case , the processing may include an oral hearing regarding certain issues .

In ORG and ORG an oral hearing shall be held if requested by an individual party to the proceedings , unless it is unnecessary or there are particular reasons against holding a hearing . ”

In a case concerning social insurance , leave to appeal is required for ORG to consider an appeal against a decision issued by ORG . Leave to appeal shall be granted if it is of importance for the guidance of the application of law that a superior court considers the appeal , if reason exists for amendment of ORG conclusion , or if there are otherwise extraordinary reasons to entertain the appeal .

A decision of ORG not to grant leave to appeal may be appealed against to ORG .


Violation of P1-1;Not necessary to examine length complaint under Art. 6;Violation of Art. 13;Remainder inadmissible;Just satisfaction reserved

The applicants were born in DATE and DATE , respectively , and live in PERSON .

In DATE the local authorities expropriated the applicants’ property with a view to building a road . The property consisted of QUANTITY of land with a house , shed , garage , toilet , well and fence .

The proceedings concerning compensation for that property were pending before the competent judicial authority since DATE . Due to a change in legislation , in DATE the case was transferred to the administrative authorities .

On DATE ORG of ORG ( Ured za imovinsko - pravne poslove ; “ the ORG ” ) acting as the first - instance authority granted the applicants compensation for their property in the amount of CARDINAL NORP kunas ( HRK ) , including interests payable as of the date of the decision . On appeal , on DATE ORG ( ORG pravosuđa ; “ the Ministry ” ) quashed that decision and remitted the case .

On DATE ORG gave a new decision awarding the applicants compensation in the amount of HRK CARDINAL with interests payable as of the date on which the decision on expropriation became final .

ORG filed an appeal against that decision , which ORG declared inadmissible on DATE because it had been submitted outside the statutory time - limit . However , on DATE the ORG admitted the appeal and reinstated the case . Subsequently , on DATE the ORG reversed the first - instance decision , determining a lower amount of compensation payable to the applicants . Both parties filed administrative actions against that decision .

On DATE ORG ( Upravni sud PERSON ) quashed the ORG ’s decision of DATE and remitted the case . Consequently , on DATE the Ministry quashed the first - instance decision of CARDINAL DATE and remitted the case to the first administrative instance . It found that the amount of compensation was to be calculated in line with the current market prices of the expropriated property .

In the resumed proceedings , ORG obtained an expert opinion assessing the value of the property and held a hearing . On DATE the Virovitica Office gave a new decision determining the amount of compensation payable to HRK CARDINAL . On DATE the Ministry again quashed that decision and remitted the case , ordering the first - instance authority to obtain an additional expert opinion on the value of the property .

ORG accordingly obtained a new expert opinion and held another hearing . On DATE it gave a new decision , awarding the applicants HRK CARDINAL in view of compensation . On DATE the ORG quashed that decision , finding that the first - instance authority failed to determine the correct amount of compensation .

On DATE the ORG gave a new decision awarding the applicants HRK CARDINAL . The applicants appealed and on DATE the Ministry quashed that decision yet another time and remitted the case . The proceedings are still pending before the first - instance authority .

Meanwhile , on DATE the applicants filed a motion for review of constitutionality ( prijedlog za ocjenu ustavnosti ) of certain provisions of the DATE LAW . It appears that ORG ( ORG ) has not yet adopted a decision on their motion .

Section CARDINAL of LAW on LAW ( Ustavni zakon o PERSON ) as amended on DATE , ORG nos . CARDINAL of DATE and . CARDINAL/CARDINAL ( consolidated text ) DATE “ LAW ” ) reads as follows :

“ ( CARDINAL ) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the individual ’s rights and obligations or a criminal charge against him or her within a reasonable time ...

( CARDINAL ) If a constitutional complaint ... under paragraph CARDINAL of this section is upheld , the Constitutional Court shall set a time - limit within which the competent court must decide the case on the merits ...

( CARDINAL ) In a decision issued under paragraph CARDINAL of this section , the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the ORG budget within DATE from the date a request for payment is lodged . ”

NORP In case no . U - IIIA/CARDINAL/CARDINAL of DATE , ORG was seized under LAW of LAW to examine the length of administrative proceedings instituted in DATE when the complainant had brought an action in ORG for ORG failure to give a decision in his case . In DATE ORG ordered the ORG to give a decision within DATE . ORG gave a negative decision in DATE . The complainant then brought a second administrative action , challenging that decision . In DATE ORG quashed the impugned decision and remitted the case . ORG again gave a negative decision and served it on the complainant in DATE . On DATE the complainant had brought a third administrative action , which was dismissed by ORG in DATE . Meanwhile , on DATE he lodged his constitutional complaint arguing that ORG should , like ORG , take into consideration the overall length of administrative proceedings when examining whether or not they exceeded a reasonable time .

Following its previous practice ( decisions no . U - III-CARDINAL/CARDINAL of DATE , and ORG of DATE ) , ORG held that only the inactivity of the judicial authorities was relevant for a breach of LAW . In its view it was not possible for proceedings before the administrative authorities to last unreasonably long because the statutes regulating those proceedings contained the presumption that the application had been dismissed if the administrative authorities failed to give a decision within the statutory time - limits ( see paragraphs CARDINAL and CARDINAL above ) . ORG therefore examined only the length of the proceedings in their part between the introduction of the complainant ’s third action in ORG and the lodging of the constitutional complaint . It dismissed the constitutional complaint finding that the proceedings had lasted DATE .

LAW ( Zakon o ekproprijaciji , ORG no . CARDINAL ) , which was a federal law of the former GPE , provided that a hearing should be held with a view to determining the amount of compensation only after the property had already been expropriated . LAW ( Zakon o ekproprijaciji , ORG no . CARDINAL/CARDINAL ) , which was a law of GPE as a federal unit within the former GPE , contained provisions on just satisfaction for expropriated property .

LAW ( Zakon o izvlaštenju , ORG nos . CARDINAL , CARDINAL and GPE ) , adopted after GPE ’s independence , provides that the decision on compensation should be given at the same time the actual expropriation takes place . Sections CARDINAL and CARDINAL provide that compensation for expropriated property should equal the market value of that property at the time of the issuance of the first - instance decision in the expropriation proceedings .


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

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

In DATE the applicant , a professional journalist , started private investigations into an arson attack carried out against police officer PERSON during a demonstration held in GPE on DATE . Police officer PERSON survived , but had been very seriously injured .

In DATE ORG re - opened criminal investigations into the DATE incident directed against PERSON on suspicion of attempted murder .

In DATE and DATE NORP public television broadcasted CARDINAL of the applicant ’s films dealing with different aspects of the events in DATE and her own investigations .

On DATE ORG ( Amtsgericht ) issued a warrant to search the applicant ’s apartment , which read as follows :

“ In the context of the preliminary investigations against

... [ J.H. ]

on suspicion of an offence pursuant to sections CARDINAL , CARDINAL , CARDINAL of LAW [ attempted murder ] ,

on request of ORG , the search of the residential and side premises of GPE pursuant to sections CARDINAL , CARDINAL of the Code of Criminal Procedure are ordered .

According to the present results of investigations , there are facts to suggest that the search will allow the seizure of the following objects :

Documents concerning the incident of CARDINAL DATE in GPE / Main which shed light on the relevant course of events .

The evidence found has to be placed in official custody or to be secured otherwise . If section CARDINAL § CARDINAL applies , the seizure has to be confirmed within DATE by court order .

Reasons :

As a result of police investigations , the accused PERSON is suspected of having , on DATE , during a demonstration on the occasion of the death of PERSON , thrown explosives on a police car and of thus having inflicted life - threatening injuries on police officer PERSON

The above - mentioned documents may be of importance as evidence for the investigation .

The journalist PERSON is supposed to be in possession of extensive documentation concerning the demonstration which took place on DATE in GPE / Main . This is supposed to lead to indications as to the identity of the offender .

The search may be averted by handing over the documents voluntarily . ”

By decision of DATE the applicant ’s forename was corrected into “ PERSON .

The search of the applicant ’s apartment was carried out on DATE in the presence of the applicant and an officer of public prosecution . Several documents , data carriers and the hard disk of the applicant ’s personal computer were seized .

The applicant objected to the search and appealed against the search and seizure decision on that DATE . She stated that she relied on her journalist ’s right to refuse to give evidence . She further pointed out that she had deposited all relevant material outside her apartment , so that it had not been found during the search . She emphasised that the seized material , which related to her book project , should be returned in order to avoid further damage .

On DATE the applicant ’s personal computer was returned to her , while ORG retained a copy of the hard disk .

By further letters of CARDINAL and DATE the applicant pointed out , inter alia , that ORG had expressly acknowledged her journalist ’s right to refuse to give evidence . She further emphasised that she had been willing to co - operate with public prosecution .

By letter of DATE to ORG the applicant , represented by counsel , referred to her appeal of DATE and requested to be granted access to the case - file .

On DATE ORG informed the applicant ’s counsel that he could not grant that request , because the case - file had been dispatched to ORG .

On DATE ORG ( Landgericht ) rejected the applicant ’s appeal , finding that the applicant ’s own statements as a witness had justified the assumption that the search of her apartment would yield evidence relevant for clearing up a serious criminal offence committed by a third person , namely the attempted murder of police officer PERSON in DATE . The measure was proportionate with regard to the seriousness of the offence . The applicant ’s documents were not exempt from seizure pursuant to section CARDINAL § CARDINAL of LAW ( Strafprozessordnung , see relevant domestic law below ) . According to this provision , the seizure of documents was inadmissible if they were found in the possession of a journalist who had the right to refuse to give evidence under LAW . The applicant did not belong to this group of persons , because the seized documents had not been acquired in the course of preparation of an article in a periodical newspaper or broadcast . According to the applicant ’s own submissions , the material had been researched by the applicant in the course of her book project . It followed that the applicant did not have the right to refuse to give evidence in this respect .

This decision was served on the applicant ’s counsel on DATE .

In the meantime , on DATE , the applicant ’s counsel , in a letter to ORG , submitted that the applicant had been for DATE professionally active in the preparation , production or dissemination of periodically published material and television broadcasts and that this had been known both to ORG and to ORG . She was currently not only working on her book project , but also on periodicals and , in particular , on television broadcasts relating to the events in DATE .

By letter of DATE , which reached the applicant on DATE , ORG informed the applicant that her request to be granted access to the case - file had to be directed to ORG , to whose offices the case - file had been returned following the termination of the complaint proceedings .

On DATE the applicant lodged a complaint combined with a request for an interim measure against ORG decision of DATE with ORG , in which she gave an account of the proceedings before the domestic authorities and complained that the search of her apartment and the seizure of her documents violated her journalist ’s right to refuse to give evidence . She alleged that ORG had been fully informed about the scope of her journalistic work and that her investigations into the incident on DATE did not relate to her book - project . She further submitted that the domestic authorities purposefully denied her access to the case - file .

On DATE ORG , sitting as a panel of CARDINAL judges , refused to accept the applicant ’s constitutional complaint for adjudication as being inadmissible . This decision was served on the applicant on DATE .

In DATE and DATE the applicant requested access to the case - file relating to the search of her premises . By letter of DATE ORG informed her that she did not have a right of access to the files of the main proceedings – as she herself was not charged of any offence – and that a separate case - file concerning the search of her apartment did not exist .

On DATE the GPE ORG refused to return a file , which had been seized during the search , to the applicant . It noted that a copy of the file had been handed out to the applicant and that the examination of the content of the file had not been terminated .

On DATE the remainder of the applicant ’s seized property was handed out to the applicant ’s counsel .

Section CARDINAL of the Code of Criminal Procedure ( Strafprozessordnung ) provides that the home and other premises of a person who is not suspected of a criminal offence may be searched by order of a judge only in order to apprehend a person charged with an offence , to investigate the traces of an offence or to seize specific objects , provided always that there are facts to suggest that such a person , trace or object are to be found on the premises to be searched .

Section CARDINAL § CARDINAL , number CARDINAL as in force until DATE provided that individuals who are or were professionally involved in the preparation , production or dissemination of periodically published material or radio broadcasts had the right to refuse to give testimony concerning the author , contributor or informant providing contributions and documentation and concerning information received by them in their professional capacity insofar as this concerned contributions , documentation and information for the editorial element of their activity .

On DATE a second sentence and third sentence were added to section CARDINAL § CARDINAL . The second sentence provides that persons as defined by LAW , CARDINAL do not have a right to refuse to give testimony with respect to their own research materials , if their testimony is destined to contribute to investigations concerning a crime or another specified offence and if the investigation into the facts would otherwise lack prospect of success or would be seriously obstructed . According to the third sentence of that same paragraph , the witness retained the right to refuse to testify if he would otherwise reveal his sources .

Pursuant to section CARDINAL § CARDINAL , the seizure of documents , audio , visual and data recording media , illustrations and other images in the custody of persons referred to in LAW , CARDINAL , shall be inadmissible insofar as they are covered by the right of such persons to refuse to testify .

All first instance court decisions relating to the search and seizure are subject to an appeal ( section CARDINAL of LAW ) .

According to sections CARDINAL § DATE ORG a constitutional complaint has to be submitted in written form . The applicant has to name the right which has allegedly been violated and the action or omission which allegedly let to the violation .

Section CARDINAL § CARDINAL stipulates that a constitutional complaint can only be raised following exhaustion of prior legal remedies .


Preliminary objection rejected (non-exhaustion);Violation of Art. 3;Violation of Art. 8;Violation of P1-1;Violation of Art. 13;Not necessary to examine Art. 18;Failure to comply with obligations under Art. 34 (former Art. 25);Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The facts of the case , particularly concerning events on or CARDINAL November CARDINAL when the gendarmes carried out an operation at ORG , were disputed by the parties . The Commission , pursuant to former LAW ( a ) of the LAW , conducted an investigation with the assistance of the parties .

The Commission heard witnesses in GPE on DATE . These included the applicant ; PERSON her son ; and PERSON , a villager . ORG also had regard to the oral evidence given by witnesses on CARDINAL and DATE in the case of PERSON ( see PERSON v. GPE [ ORG ] , no . CARDINAL , ECHR CARDINAL-IV ) , which concerned the same operation . This included the testimony of PERSON , whose brother had disappeared after being taken into custody by the gendarmes ; PERSON , a villager and spouse of the disappeared person ; PERSON , previously muhtar of the village ; PERSON the gendarme commander of the operation ; and PERSON , a villager .

The DATE ’s findings of fact are set out in its report of DATE and summarised below ( Section A ) . The applicant accepts the ORG ’s findings of fact . The Government ’s submissions concerning the facts are summarised below ( Section B ) .

Çitlibahçe was in a district in which terrorist activity was intense in DATE . The ORG used to come to the village , holding meetings and taking food by force . The security forces made regular visits and operations were not uncommon . They told the villagers not to give food to the ORG .

The applicant , PERSON and PERSON all recalled an incident in DATE when villagers were forced by the security forces to pull up their tobacco crops . Although there was some disparity amongst the witnesses as to how this was done , the ORG accounts were similar in stating that the tobacco crops were destroyed by order of the security forces . The gendarme commander who gave evidence before the Delegates denied that this occurred but recalled that he had destroyed hemp crops . ORG did not make any finding in regard of this aspect as it was not the subject - matter of any specific complaint .

Shortly before DATE , ORG terrorists went to the village of PERSON in the NORP district and took away CARDINAL teachers , the imam and the imam ’s brother . All , save CARDINAL of the teachers , were shot . The imam ’s brother , though wounded , survived .

Following the discovery of the bodies of the teachers , the gendarmes at ORG gathered information from their contacts and sources as to what had happened and who had been involved . They had descriptions of the villagers in the area who had been assisting the ORG in holding the group of teachers . On DATE , an operation , under the command of PERSON , was carried out by the ORG gendarmes in ORG , while gendarmes from ORG went to GPE nearby .

Concerning what happened during the operation at ORG , ORG had earlier found PERSON to be an evasive witness , with a volubly unhelpful response to questioning . They found a lack of sincerity in the way in which he drowned simple questions in long and complicated explanations , which were often contradictory and inconsistent . On the other hand , the Delegates had found that the villagers , PERSON , PERSON and PERSON , who gave eyewitness accounts , were on the whole consistent and credible and that they were convincing in their demeanour and their response to questions . Their evidence was found to support the testimony of the witnesses heard in this case . In this regard , ORG Delegates found the applicant to be a convincing witness , an elderly , simple and unsophisticated lady who was on the whole credible . Her oral testimony was largely consistent with the statement given by her to ORG shortly after the incident . While there were some inconsistencies in her accounts , the Commission considered that they could be attributed to the applicant ’s advanced DATE and the passage of time since the events in question . Her evidence accorded in essentials with that of her son PERSON and the villager PERSON .

The Commission found that the ORG gendarmes included ORG in the operation since they intended to look for and take into custody PERSON , who , as a person already under suspicion of involvement in ORG activities , would be likely to have information about the kidnap group that passed through the village .

When the gendarmes arrived at the village , TIME , they left their vehicles outside and entered . They gathered the men together in CARDINAL place and the women in another . PERSON had hidden . A search was carried out by the gendarmes , who also started setting fire to houses . PERSON was found and taken into custody . He was last seen by the witnesses being taken by village guards and soldiers to the vehicles .

The applicant had gone into her house when she saw all the soldiers but had been forced to leave by the soldiers . They set fire to her house , which had CARDINAL rooms and was made of timber . The family stored provisions , crops and wheat inside and these , along with the furniture and other household goods , were destroyed . CARDINAL houses in the village were burned down . She stated that once they had caught PERSON the gendarmes left . After the departure of the gendarmes , the village was left in ruins and villagers were forced to leave .

Having regard to the evidence as a whole , the ORG accepted the evidence of the applicant as regards its principal elements . It did not find the matters referred to by the ORG as being indicative of bad faith or as materially undermining the credibility and reliability of the applicant and her witnesses , which its Delegates assessed in generally positive terms . While the ORG took note of the applicant ’s age , its Delegates had not found any indication of mental infirmity that would cast doubt on her ability to give evidence .

The Commission found in conclusion that the applicant ’s property , furniture and possessions were deliberately burnt and destroyed during an operation by security forces in the village of ORG on DATE . This led to the evacuation of the village . The possessions burned included a fridge , television , kitchen utensils , household goods , and produce ( including tobacco , wheat , barley , lentils , and DATE provisions ) .

The applicant and other villagers went to ORG after the operation . Accompanied by her son and CARDINAL other villagers , the applicant went to ORG . She made a statement and thumbprinted it .

DATE , the applicant was summoned to a police station . In his evidence to the Delegates , her son , PERSON remembered that she had been summoned to the public prosecutor ’s office in DATE . He accompanied her there . She had been asked to make a statement . The public prosecutor read out of a file , stating that she had complained to LOC about GPE . He told the Delegates that he thought the prosecutor was trying to put pressure on his mother .

The Government emphasised the terrorism which was prevalent in this region from DATE and created a public danger threatening the life of the nation . The ORG had killed CARDINAL of innocent victims and exerted intolerable pressure on the local population . The operation in this case concerned an investigation into the kidnapping and killing of teachers and an imam .

The applicant had made no complaint to the public prosecutor about the alleged burning of her house and property by the gendarmes during the operation on DATE . She only made a statement to the public prosecutor when he summoned her after the case was communicated to the Government by the Commission . He issued a decision of non - jurisdiction , transferring the file to the ORG governor . ORG began an investigation and found that her claims were unsubstantiated .

The Government submitted that the applicant ’s various accounts , oral and written , were inconsistent and implausible , in particular the details purportedly noted down by ORG in her application to the Commission .

On DATE , the Government submitted a copy of the statement taken by the ORG public prosecutor from the applicant via an interpreter on DATE . This had not been provided to the Commission .

According to the statement , thumbprinted by the applicant , the letter from ORG , the appended documents and the application to the Commission were read out to her through an interpreter and she was asked about them . She acknowledged that the thumbprint on the document was hers and that she did not remember who took the statement . As regarded the events , she could not remember the exact date but DATE before CARDINAL or more army vehicles had come to ORG , with soldiers and village guards . They rounded up the villagers and set fire to the houses . After the village burned down , she went to ORG .

The statement recorded that she was shown the application and letter of authority and asked about them . She stated the thumbprints were hers . She said that she thought her application was going to GPE to claim her rights . She was illiterate and ignorant and did not know anything about NORP human rights . She made her statement to them as she thought this would get something done about the damage which she had suffered . She wanted the ORG to vindicate her rights . She did not want to start a case in LOC in the way that he < the public prosecutor > had explained and did not agree to foreign lawyers starting such a case . It was for the ORG to look after her rights . When she made a statement to the ORG , there had been a lot of people with her and they described the events also . The application which had been read out was accurate though and she had no complaints to make about the person who wrote it down . She had not started any court case in ORG or ORG as she was poor and ignorant and did not know what to do .

Article CARDINAL of LAW provides as follows :

“ All acts or decisions of the administration are subject to judicial review ...

The administration shall be liable to indemnify any damage caused by its own acts and measures . ”

The above provision is not subject to any restrictions even in a state of emergency or war . The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration , whose responsibility is of an absolute , objective nature , based on a concept of collective liability and referred to as the theory of “ social risk ” . Thus the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the ORG may be said to have failed in its duty to maintain public order and safety , or in its duty to safeguard individual life and property .

The principle of administrative liability is reflected in the additional LAW no . CARDINAL of DATE on ORG , which provides :

“ ... actions for compensation in relation to the exercise of the powers conferred by this PERSON are to be brought against the administration before the administrative courts . ”

LAW makes it a criminal offence

– to deprive an individual unlawfully of his or her liberty ( LAW generally , LAW servants ) ,

– to oblige an individual through force or threats to commit or not to commit an act ( Article CARDINAL ) ,

– to issue threats ( LAW ) ,

– to make an unlawful search of an individual ’s home ( Articles CARDINAL and CARDINAL ) ,

– to commit arson ( Articles CARDINAL , CARDINAL , CARDINAL , CARDINAL ) , or aggravated arson if human life is endangered ( Article CARDINAL ) ,

– to commit arson unintentionally by carelessness , negligence or inexperience ( Article CARDINAL ) , or

– to damage another ’s property intentionally ( Articles CARDINAL et seq . ) .

For all these offences complaints may be lodged , pursuant to ORG CARDINAL and CARDINAL of LAW , with the public prosecutor or the local administrative authorities . The public prosecutor and the police have a duty to investigate crimes reported to them , the former deciding whether a prosecution should be initiated , pursuant to LAW . A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings .

If the suspected authors of the contested acts are military personnel , they may also be prosecuted for causing extensive damage , endangering human lives or damaging property , if they have not followed orders in conformity with Articles DATE and CARDINAL of the Military Code . Proceedings in these circumstances may be initiated by the persons concerned ( non - military ) before the competent authority under LAW , or before the suspected ORG hierarchical superior ( sections CARDINAL and CARDINAL of Law no . CARDINAL on the LAW and Procedure of Military Courts ) .

If the alleged author of a crime is an agent of the ORG , permission to prosecute must be obtained from local administrative councils ( ORG of ORG ) . The local council decisions may be appealed to ORG ; a refusal to prosecute is subject to an automatic appeal of this kind .

Any illegal act by civil servants , be it a crime or a tort , which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts .

Proceedings against the administration may be brought before the administrative courts , whose proceedings are in writing .

Damage caused by terrorist violence may be compensated out of ORG .

Extensive powers have been granted to the Regional Governor of ORG by decrees enacted under PERSON no . CARDINAL on ORG ( DATE ) , especially Decree no . CARDINAL , as amended by Decrees nos . CARDINAL and CARDINAL , and Decree no . CARDINAL .

Decree no . CARDINAL modifies the application of PERSON no . ORG , the Anti - Terror Law ( DATE ) , in those areas which are subject to the state of emergency , with the effect that the decision to prosecute members of the security forces is removed from the public prosecutor and conferred on local administrative councils . These councils are made up of civil servants and are under the authority of the provincial governors who also head the security forces .

DATE of Decree no . CARDINAL of DATE provides as follows :

“ No criminal , financial or legal responsibility may be claimed against ORG or a NORP Governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this decree , and no application shall be made to any judicial authority to this end . This is without prejudice to the rights of individuals to claim indemnity from the ORG for damage suffered by them without justification . ”

According to the applicant , this Article grants impunity to the Governors and reinforces the powers of the Regional Governor to order the permanent or temporary evacuation of villages , to impose residence restrictions and to enforce the transfer of people to other areas . Damage caused in the context of the fight against terrorism would be “ with justification ” and therefore immune from suit .


David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Paul Mahoney

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

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

Background information

During the municipal elections of DATE the election results in CARDINAL of the municipalities were annulled because the election procedure had been breached . Shortly before new elections took place in DATE , the authorities carried out an investigative operation involving phone tapping . P. , a candidate in the elections , was among those whose telephone conversations were recorded . He was head of a company which , at about the same time , had been unexpectedly inspected by the tax authorities ( ORG PERSON policija ) . The police discovered various shortcomings in the company ’s accounting records as well as alleged tax evasion , and criminal proceedings were instituted .

Criminal proceedings leading to the order to disclose journalist ’s source ( first set of proceedings )

On DATE the newspaper “ PERSON ” published an article entitled “ Scandal . [ Political ] party ’s black money cash - box discovered ? ” ( “ Skandāls . PERSON atklāta partijas melnā kase ? ” ) . It contained , inter alia , transcripts of PERSON ’s telephone conversations recorded in DATE . The conversations reflected PERSON ’s attempts to use his political contacts to settle a problem with the tax authorities . The conversations also raised questions as to the unofficial financing of the political party of which P. was a member .

The published telephone conversations had been obtained in the course of an investigative operation carried out by ORG ( Drošības policija ) and were therefore considered as classified operational information . On DATE the Security Police instituted criminal proceedings under section CARDINAL of the Criminal Law for breach of confidentiality . No charges were brought .

It appears from the case - file that the investigating authorities searched the office of the newspaper concerned and seized an audiotape of the impugned conversations .

On DATE the applicant , who was a journalist at the aforementioned newspaper and the author of the article , was asked by ORG to give a statement in the criminal proceedings . Invoking his journalist ’s privileges , the applicant refused to disclose the source of the recorded telephone conversations .

Following a request by ORG , on DATE the investigative judge of ORG , after having heard the prosecutor and the applicant , upheld the part of the request concerning the disclosure of the source of the published telephone conversations .

On DATE the Rīga City ORG dismissed an appeal lodged by the applicant . The judge noted , inter alia , that the investigation into the breach of confidentiality had not identified any suspects and therefore had not established at what level those responsible for disclosing the classified information had accessed it . The decision stated that even if other means of investigating could have been deployed , in a period when GPE was preparing to host a NATO summit the persistence of the aforementioned criminal activities could have put public safety and national security at risk . It concluded that it had been an exceptional situation and that the restrictions of the rights of an individual were proportional to the protection of the public interests .

The court also noted that the investigating judge had only partly upheld the request of ORG .

On DATE ORG dismissed a request submitted by the applicant to terminate the criminal proceedings in which the applicant had to give statements ( see paragraph CARDINAL above ) . It explained inter alia , that the criminal proceedings had been instituted not as a result of the publication of the tapped telephone conversations but because of a breach of confidentiality committed by an individual who had been entrusted with the information in the course of his or her official duties . The letter further noted that the sole aim of the request to divulge the journalist ’s source was to identify the official responsible for the breach of confidentiality . The response could be appealed against to ORG .

On DATE the Security Police asked the applicant to execute the court order of CARDINAL DATE . The applicant was also informed about possible criminal liability under LAW of LAW in the event of non - compliance with the order . The applicant again refused to disclose the information , invoking his rights as a journalist as well as the right against self - incrimination .

In a letter dated DATE the Security Police again asked the applicant to submit the information . They also explained that he had the status of a witness in the respective criminal proceedings , so his testimonies could not be used against him and his argument in that respect was unfounded . In his response , the applicant confirmed his refusal to disclose the source .

Criminal proceedings against the applicant for non - compliance with the court order to disclose the source ( second set of proceedings )

On DATE the applicant was charged under section CARDINAL of LAW for refusal to comply with a court order .

On DATE the Rīga City Centre District Court found the applicant guilty and fined him CARDINAL lati ( ORG ) ( MONEY ( ORG ) ) . The court noted that the intentional nature of the offence had been proven by the fact that the applicant had refused to give witness statements in the first set of criminal proceedings . The court concluded that the obligation imposed on the applicant by the court order was not contrary to the second paragraph of LAW in that by complying with the order the applicant would have prevented a criminal offence from being committed .

The appellate court upheld the lower court ’s judgment . It noted that in the first set of criminal proceedings the applicant ’s journalistic immunity had been overridden by the court order of DATE . The applicant had been aware of the procedural obligation imposed on him by the court order and therefore his refusal to obey had constituted the mens rea required for the offence provided for under LAW of LAW . The appellate court noted that the proportionality of the measure had already been measured at the time of issuing the order . In addition , judging from the responses of ORG found in the case file and the investigation in the first set of criminal proceedings , the appellate court concluded that ORG had had no other means of disclosing the source of the information .

In his appeal on points of law the applicant argued that his activities could not be qualified under LAW of LAW as there was a lack of intention on his part . He also relied on a recommendation of ORG and contended that the court order had not been proportional .

By virtue of sections CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) of LAW , the ORG of ORG of its own motion extended the limits of the appeal on points of law and found that ORG and the lower courts had wrongfully interpreted and applied section CARDINAL of LAW . In particular , the aforementioned provision provided for criminal liability for the non - execution of judgments or decisions if the execution fell within an individual ’s official duties . As that qualification did not apply to the applicant , there was no legal basis for applying the above provision to his non - compliance with the court order . The ORG revoked the lower court ’s decision and terminated the criminal proceedings .

In DATE the applicant asked ORG whether , based on the outcome of the aforementioned criminal proceedings , it would publicly apologise to him , and whether measures had been taken in order to avoid similar situations in the future . In response , ORG indicated that :

“ ... [ t]he Criminal Procedure Law provides for an acquittal or conviction , ... the law does not provide for an obligation on the part of the prosecutor to apologise to someone for having brought charges in proceedings which resulted in an acquittal . ”

The applicant was informed by ORG his right to institute civil proceedings for non - pecuniary damages in accordance with ORG caused by ORG ( ORG izziņas izdarītāja , prokurora vai tiesneša nelikumīgas vai nepamatotas rīcības rezultātā nodarīto zaudējumu atlīdzināšanu ) .

B. Relevant domestic and international law

Criminal Law

NORP In accordance with CARDINAL , a person who intentionally discloses an official secret , having been warned about the consequences of disclosure but where the offence does not involve espionage , may be sentenced to CARDINAL eight years’ imprisonment or receive a fine not exceeding the minimum monthly salary .

By virtue of section CARDINAL , a person who intentionally fails to execute a court judgment or decision , or delays the execution thereof , will be subject to a fine not exceeding CARDINAL minimum DATE salaries .

Criminal Procedure Law

Under section CARDINAL of GPE ( as in force at the material time ) , a court may order a journalist or editor to indicate the source of published information . An investigating judge will decide on the proposal of an investigator or public prosecutor , having listened to the submitter of the proposal , or a journalist or editor , and having familiarised him or herself with the materials of the case . An investigating judge will take a decision on the indication of the source of information , giving due consideration to the proportionality of the rights of the person and the public interests . The decision may be challenged against to the chairman of the court whose decision is final .

Law on the Press and Other ORG

NORP Under LAW , journalists may choose not to indicate the source of their information . If the person who has provided the information requests that his or her name is not to be indicated , this request shall be binding upon the editorial board . The source of information may be revealed only at the request of a court or prosecutor .

Law on Compensation for Damage caused by ORG ( ORG izziņas izdarītāja , prokurora vai tiesneša nelikumīgas vai nepamatotas rīcības rezultātā nodarīto zaudējumu atlīdzināšanu )

Section CARDINAL of the Law on Compensation for Damage caused by ORG deals with the unlawful conduct of investigative bodies , ORG and the courts and provides that pecuniary and non - pecuniary damages may be awarded , inter alia , in the event of an acquittal for reasons of rehabilitation . Requests for pecuniary damages in the event of an acquittal by the court must be submitted to ORG . In relation to non - pecuniary damages , a person has the right to submit a civil claim to a court of general jurisdiction .

Civil PERSON ( Civillikums )

Section CARDINAL provides that a judge must be guided by the general principles of law and justice when a court is called upon to adjudicate on its own discretion or when exceptional circumstances have to be taken into account .

Recommendation No . R ( DATE ) CARDINAL of ORG on the right of journalists not to disclose their sources of information ( adopted on DATE )

Principle CARDINAL ( Limits to the right of non - disclosure )

“ a. The right of journalists not to disclose information identifying a source must not be subject to other restrictions than those mentioned in LAW , paragraph CARDINAL of the Convention . In determining whether a legitimate interest in a disclosure falling within the scope of LAW , paragraph CARDINAL of the Convention outweighs the public interest in not disclosing information identifying a source , competent authorities of member states shall pay particular regard to the importance of the right of non - disclosure and the pre - eminence given to it in the case - law of ORG , and may only order a disclosure if , subject to paragraph b , there exists an overriding requirement in the public interest and if circumstances are of a sufficiently vital and serious nature .

b. The disclosure of information identifying a source should not be deemed necessary unless it can be convincingly established that :

i. reasonable alternative measures to the disclosure do not exist or have been exhausted by the persons or public authorities that seek the disclosure , and

ii . the legitimate interest in the disclosure clearly outweighs the public interest in the non - disclosure , bearing in mind that :

- an overriding requirement of the need for disclosure is proved ,

- the circumstances are of a sufficiently vital and serious nature ,

- the necessity of the disclosure is identified as responding to a pressing social need , and

- member states enjoy a certain margin of appreciation in assessing this need , but this margin goes hand in hand with the supervision by ORG .

c. The above requirements should be applied at all stages of any proceedings where the right of non - disclosure might be invoked . ”