Violation of Art. 6-1+6-3-c;Not necessary to examine Art. 6-3-e;Non-pecuniary damage - finding of violation sufficient

At the time of lodging his application with the ORG in DATE PERSON , an NORP citizen born in DATE , was in prison at ORG ( GPE ) . On DATE he died in Caxias prison hospital .

On DATE the applicant , as he arrived from GPE , was arrested at FAC ; he was carrying a false passport and a suitcase containing QUANTITY of cocaine .

On DATE the judge of ORG ( tribunal de instrução criminal ) to whom the case had been allocated interviewed Mr PERSON in the presence of an officially assigned lawyer and an interpreter , PERSON , an educational and welfare counsellor working in the police criminal investigation department . After verifying that the applicant had been arrested lawfully , the judge ordered that he should be detained pending trial .

NORP On DATE ORG ( Supremo Tribunal de Justiça ) refused an application for a writ of habeas corpus made by the applicant in person .

On DATE the public prosecutor made his submissions . These were served on the lawyer on DATE and on the applicant on DATE .

On DATE Mr PERSON himself requested that a judicial investigation should be commenced . On DATE the investigating judge , citing LAW , refused the request , on the ground that it did not satisfy the minimum formal requirements laid down by law , in particular because it was written in LANGUAGE .

On DATE the file , together with the public prosecutor ’s submissions , was sent to ORG of ORG ( tribunal criminal ) .

In an order of CARDINAL DATE that was served on PERSON on DATE the judge in charge of the case set it down for hearing on DATE . He also ordered that the applicant should remain in detention pending trial .

In a letter of DATE , which was registered on DATE , the applicant asked the court to hear a number of witnesses and to order an examination of the suitcase in issue , which he denied was his . He also sought the assistance of an interpreter other than PERSON and asked to meet his officially assigned lawyer , who had not yet contacted him .

In an order of CARDINAL DATE the judge in charge of the case , citing LAW , declined to consider the application , on the grounds that it was “ difficult to read ” , written in LANGUAGE and unaccompanied by any translation .

On DATE the officially assigned lawyer asked to be relieved of her duties on health grounds . On DATE the judge assigned another lawyer , PERSON was notified of that order on DATE .

The trial began on DATE with an interpreter , PERSON , present and continued on DATE . At those hearings the court heard witnesses and , at the request of the officially assigned lawyer , formally identified the suitcase .

On DATE , the court sentenced the applicant to CARDINAL years’ imprisonment for drug trafficking and using a false passport and made an order for costs against him .

On DATE that he was convicted , the applicant , represented by his officially assigned lawyer , appealed to ORG . In his pleadings , drawn up and submitted by PERSON , he complained that the court below had not acceded to his request for a judicial investigation . In his submission , the investigating judge had misinterpreted the relevant provisions of LAW ; his refusal to consider the request and the lack of an investigation rendered the proceedings null and void .

In a judgment of CARDINAL DATE ORG , relying on Article CARDINAL of LAW , held that the appeal was inadmissible on account of an inadequate presentation of the grounds . The submissions did not indicate either the statutory provisions that had allegedly been contravened or the way in which , in the appellant ’s view , they should have been interpreted or applied .

Article CARDINAL of the LAW provides :

“ CARDINAL . Access to the law and to the courts to defend CARDINAL ’s rights and legitimate interests is guaranteed to all . ORG can not be refused for lack of financial resources .

Everyone is entitled , in accordance with the law , to information , legal advice and legal aid . ”

Article CARDINAL § CARDINAL of the LAW provides :

“ Every person charged with a criminal offence is entitled to choose a legal representative and to be assisted by him in all procedural steps . The law shall lay down the circumstances in which and the stages at which such assistance is compulsory . ”

The relevant provisions of LAW are the following :

“ CARDINAL . The accused may instruct counsel at any stage of the proceedings .

Where it is provided by law that the accused must be represented and the accused has not appointed or does not propose to appoint a person to defend him , the judge shall assign CARDINAL officially , preferably a member or trainee member of the Bar ; but the officially assigned representative shall cease to have authority to act if the accused instructs counsel of his own choosing .

“ The accused may revoke any act carried out on his behalf by the person defending him , provided that he expressly declares that intention before any decision has been taken in respect of the act in question . ”

“ CARDINAL . The assistance of a representative is compulsory

( a ) when an accused in custody is first examined by the judge ;

( b ) during the investigation and at the hearing , except in proceedings which can not entail a custodial sentence or a preventive measure ;

( c ) for any step in the proceedings if the accused is deaf , dumb or illiterate or does not know NORP , if he is under the age of DATE or if the issue of his lack of criminal responsibility or his diminished responsibility has been raised ;

“ CARDINAL . Where a representative is assigned officially , the accused shall be notified of the fact if he was not present at the material time .

The officially assigned representative may be excused from assisting the accused if he puts forward a ground that the court considers valid .

The court may replace the officially assigned representative at any time on an application by the accused that contains a valid ground .

Until such time as he is replaced , an officially assigned representative shall continue to act in respect of subsequent steps in the proceedings .

The representative shall always be remunerated for his services ; the terms and the amount shall be determined by the court , within the limits laid down in a scale approved by ORG or , failing that , in the light of the fees normally paid for services of a similar nature and of equal importance .

Payment shall be the responsibility of , as the case may be , the accused , the assistente , the civil parties or ORG . ”

If the representative is replaced during the judicial investigation or the hearing , the court may , of its own motion or on an application by the new representative , grant a pause to enable the new representative to consult with the accused and study the file .

Instead of the pause mentioned in the preceding paragraphs the court may decide , where absolutely necessary , to adjourn the relevant step in the proceedings or the hearing , provided , however , that such an adjournment shall not exceed DATE . ”

“ CARDINAL . To be valid , all steps in the proceedings , whether written or oral , must be made in LANGUAGE .

Where a person who can not understand or speak NORP has to take part in proceedings , an appropriate interpreter shall be appointed free of charge …

An interpreter shall likewise be appointed if it proves necessary to translate a document in a foreign language which is not accompanied by a certified translation .

“ An accused , even if at liberty , may submit observations , pleadings or applications at any stage of the proceedings , even if they are not signed by his representative , provided that they relate to the subject matter of the proceedings or are intended to protect his fundamental rights . Such observations , pleadings or applications shall always be placed in the case file . ”

“ CARDINAL . The purpose of the judicial investigation shall be to provide judicial confirmation of the indictment or of the decision whereby proceedings in the case have been discontinued , so that the case may go to trial or not .

The judicial investigation shall be optional … ”

“ CARDINAL . A judicial investigation may be applied for within DATE from the serving of the indictment or of the decision to discontinue the proceedings

by the accused , in relation to facts covered by the indictment drawn up by the public prosecutor ’s office , or by the assistente if the criminal proceedings have been brought by the latter ;

( b ) …

Such an application may only be dismissed if it is out of time , if the judge has no jurisdiction or if a judicial investigation is statutorily inadmissible .

The application shall not have to satisfy any formal requirements but it must contain a summary of the reasons of fact and law for challenging the indictment or the failure to bring an indictment , together with , if appropriate , some indication either of the judicial investigation measures which the applicant would like to see taken and of any evidence not considered during the preliminary inquiries or of facts which it is hoped to prove by such means . ”

“ CARDINAL . The pleadings shall set forth in detail the grounds of appeal and end with submissions , set out point by point , in which the appellant summarises the reasons for his appeal .

If the reasons concern the law , the submissions shall also indicate the following , failing which the appeal shall be dismissed :

the legal provisions that have been infringed ;

The relevant provisions of Decree no . CARDINAL of DATE are the following :

“ The appointment of an officially assigned representative and his withdrawal , replacement and remuneration shall be governed by LAW ”

“ The judicial authority responsible for assigning the representative shall request ORG competent for the district concerned to nominate a member or trainee member of the Bar for official assignment ; where it considers it appropriate , it may ask the Bar to nominate only a member of the Bar .

The ORG shall make the required nomination within DATE .

Where no such nomination is made … , the judicial authority may appoint a representative as it sees fit . ”


Violation of P1-1;Just satisfaction reserved

Giovanni Bonello;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi

The applicant company , ORG SRL , is a company incorporated in GPE .

At the time of the events the applicant company was the largest Internet service provider in GPE . According to the applicant company , it held PERCENT of the market of Internet services . While agreeing that the applicant company was the largest Internet service provider in the country , the Government disputed the ratio of its market share without , however , presenting any alternative figures .

The applicant company had CARDINAL licences issued by ORG ( “ ORG ” ) for providing Internet and fixed telephony services . The licences were valid until DATE and CARDINAL DATE respectively and the address CARDINAL ORG was indicated in them as the applicant company ’s official address .

The applicant company had CARDINAL offices in PERSON . On DATE its headquarters was moved from its FAC office to its GPE cel FAC office . The change of address of the headquarters was registered with ORG and ORG were informed . However , the applicant company failed to request ORG to modify the address of its headquarters in the text of its licences .

On DATE the applicant company requested a third licence from ORG indicating in its request the new address of its headquarters . ORG issued the new licence citing the old address in it , without giving any reasons for not citing the new address .

On DATE held a meeting . According to the minutes of the meeting , it found that CARDINAL companies in the field of telecommunications , including the applicant company , had failed to pay an DATE licence fee and/or to present information about changes of address within the prescribed time - limits . ORG decided to invite those companies to eliminate the irregularities within DATE and to warn them that their licences might be suspended in case of non - compliance .

NORP On unspecified dates the CARDINAL companies , including the applicant company , were sent letters asking them to comply within DATE of the date of receipt of the letter . They were also warned that their licences might be suspended in case of non - compliance in accordance with section CARDINAL of the ANRTI Regulations . The applicant company was sent such a letter on DATE .

Following ORG ’s letters , CARDINAL companies , including the applicant company , complied with the request .

On DATE and DATE the applicant company lodged documents with ORG indicating its new address , together with a request to modify its licences accordingly , and paid the licence fee .

On DATE ORG informed the applicant company that it had some questions concerning the documents submitted by the applicant company . In particular , it had a question concerning the lease of the applicant company ’s new headquarters and about the name of the applicant company . ORG informed the applicant company that the processing of its request concerning the amendment of its licences would be suspended until it had submitted the requested information .

On DATE held a meeting at which it adopted a decision concerning the applicant company . In particular , it reiterated the content of section CARDINAL of the Law on Licensing and of section QUANTITY of the ANRTI Regulations , according to which licences which had not been modified within DATE pursuant to section CARDINAL.CARDINAL.CARDINAL of the ANRTI Regulations should be declared invalid . ORG found that those provisions were applicable to the applicant company ’s case , and that its licences were therefore not valid .

On DATE , ORG wrote to ORG , ORG , ORG ( “ the ORG ” ) and ORG stating that the applicant company had modified its address on DATE but had failed to request ORG to make the corresponding change in its licences . In such conditions , the applicant company had traded for DATE with an invalid licence . ORG requested the authorities to verify whether the applicant company should be sanctioned in accordance with the law .

On DATE ORG amended the Regulations concerning the issuance of licences in order to provide that an entity whose licence was withdrawn could reapply for a new licence DATE .

On DATE held a meeting at which it found that CARDINAL of the CARDINAL companies which it had warned , in accordance with its decision of DATE , had failed to comply with the warning . It decided to suspend their licences for DATE and to warn them that in case of non - compliance during the period of suspension , their licences would be withdrawn . It appears from the documents submitted by the parties that the applicant company was the only one to have its licence invalidated .

On DATE the applicant company brought an action against ORG arguing , inter alia , that the measure applied to it was illegal and disproportionate because the applicant company had always had CARDINAL different offices in PERSON of which ORG had always been aware . The change of address had only occurred because the applicant company ’s headquarters had been transferred from CARDINAL of those offices to another . ORG had been informed promptly about that change and thus the change of address had not led to a failure to pay taxes or to a drop in the quality of services provided by the applicant company . Moreover , ORG ’s decision of DATE had been adopted in breach of procedure , because the applicant company had not been invited to the meeting and ORG had disregarded its own instructions given to the applicant company on DATE .

On DATE ORG ordered a stay of the execution of ORG ’s decision of DATE . It also set DATE as the date of the first hearing in the case . Later , at the request of ORG , that date was changed to DATE .

On DATE the representative of the applicant company lodged a request for adjournment of the hearing of DATE on the ground that he was involved in a pre - arranged hearing at another court on DATE and at the same time .

On DATE ORG held a hearing in the absence of the representative of the applicant company and dismissed the latter ’s action . The court considered , inter alia , that since the applicant company had failed to inform ORG about the change of address of its headquarters , the provisions of section CARDINAL.CARDINAL.CARDINAL of the ANRTI Regulations were applicable .

NORP The applicant company appealed against the decision arguing , inter alia , that it had not been given a chance to participate in the hearing before the first - instance court . It submitted that , according to LAW , the court had the right to strike the case out of the list of cases if it considered that the applicant had failed to appear without a plausible justification , but not to examine the case in its absence . It also submitted that , by declaring the licences invalid , ORG had breached its own decision of CARDINAL DATE . It was ORG ’s usual practice to request information concerning changes of address and to sanction companies which did not comply by suspending their licences . The applicant company drew attention to CARDINAL other decisions of that kind dated DATE and CARDINAL DATE . In this case , however , the applicant company had fully complied with ORG ’s decision of CARDINAL DATE by submitting information about the new address within the prescribed time - limit . Notwithstanding , ORG had asked for supplementary information on DATE and , without waiting for it to be provided by the applicant company , had decided to declare the licences invalid on DATE .

The applicant company also argued that ORG ’s decision of DATE had been adopted in serious breach of procedure because the applicant company had not been informed DATE in advance about the meeting of DATE and had not been invited to attend .

Lastly , the applicant company argued that ORG ’s decision to declare its licences invalid was discriminatory since the other CARDINAL companies listed in ORG ’s decision of CARDINAL DATE had not been subjected to such a severe measure .

On DATE ORG dismissed the applicant company ’s appeal and found , inter alia , that it had been summoned to the hearing of DATE and that its request for adjournment could not create an obligation on the part of ORG to adjourn the hearing . Moreover , the decision of DATE was legal since the applicant company admitted to having changed its address , and according to section QUANTITY of the ANRTI Regulations a failure to request a modification of an address in a licence led to its invalidity . ORG did not refer to the applicant company ’s submissions about its discriminatory treatment , ORG ’s usual practice of requesting information about changes of address and ORG ’s breaching of its own decision of CARDINAL DATE .

One of the members of the panel of ORG , Judge NORP ORG , disagreed with the opinion of the majority and wrote a dissenting opinion . He submitted , inter alia , that the first - instance court had failed to address all the submissions made by the applicant company and had illegally examined the case in its absence . Moreover , CARDINAL provision of ORG had been applied , whereas it was necessary to examine the case in a broader light and to apply all the relevant legislation . Finally , ORG ’s decision of DATE contravened its decision of CARDINAL DATE . Judge PERSON considered that ORG should have quashed the judgment of the first - instance court and remitted the case for a fresh re - examination .

In the meantime , the applicant company transferred all of its contracts with clients to a company which was part of the same group , ORG , which had valid licences . However , the ORG - owned monopoly in telecommunications , ORG , refused to sign contracts with the latter company and made it impossible for it to continue operating .

On DATE ORG and PERSON informed the applicant company ’s clients that on DATE their Internet connection would be cut off and offered them Internet services from Moldtelecom without any connection charge .

On DATE Moldtelecom carried out the disconnection of the applicant company and of ORG from the Internet and all of their equipment on the Moldtelecom premises was disconnected from the power supply .

NORP In DATE the licences of ORG were withdrawn by ORG .

As a result of the above , the applicant company and ORG were forced to close down the business and sell all of their assets . DATE , the applicant company ’s chairman , Mr PERSON , was arrested for peacefully demonstrating against his company ’s closure .

Following ORG ’s letter of DATE ( see paragraph CARDINAL above ) , ORG imposed a fine on the applicant company for having operated for DATE without a valid licence and the ORG initiated an investigation as a result of which all the accounting documents of the applicant company were seized .

On DATE the embassies of GPE , GPE , GPE , GPE , GPE , GPE and GPE , as well as ORG , ORG and ORG missions in GPE , issued a joint declaration expressing concern over the events surrounding the closure of the applicant company . The declaration stated , inter alia , the following :

“ Alleged contraventions of registration procedures do not appear to justify a decision to put a stop to the functioning of a commercial company . ... We urge PERSON and the relevant authorities to reconsider this question . This seems all the more important in view of the commitment of the public authorities of GPE to NORP norms and values . ”

Section CARDINAL.CARDINAL of the ANRTI Regulations provides that in the event of non - compliance by a licence beneficiary with the conditions set out in the licence , the licence can be suspended for DATE . When ORG finds such non - compliance , it warns the licence beneficiary and gives it a deadline for remedying the problem . If the problem is not remedied within that period , ORG may suspend the licence for DATE .

On DATE ORG warned several companies about their failure to pay licence fees and/or to inform it about their changes of address . The companies were given DATE to remedy the breaches . Since some of them did not comply , on DATE , ORG decided to suspend their licences for DATE .

The relevant provisions of the ANRTI Regulations concerning modification of licences at the time of the events were similar to the provisions of section CARDINAL of the Law on Licensing and read as follows :

“ TIME A licence should be modified when the name of the beneficiary company or other information contained in the licence has changed ;

NORP When reasons for modifying a licence become apparent , the beneficiary shall apply to ORG for its modification within DATE ...

CARDINAL A licence which has not been modified within the prescribed time - limit is not valid . ”

On DATE the following provision was added to the Regulations :

“ CARDINAL.CARDINAL.CARDINAL NORP Former beneficiaries , whose licences were withdrawn ... can reapply for new licences only after a period of DATE counted from DATE of withdrawal . ”

On DATE section CARDINAL.CARDINAL.CARDINAL of the Regulations was amended as follows :

“ CARDINAL.CARDINAL.CARDINAL In the event that a licence was not modified within the prescribed time - limit , the ORG has the right to apply administrative sanctions or to withdraw the licence partially or totally . ”


David Thór Björgvinsson;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

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

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

On DATE , DATE and DATE the applicant and his wife were the subject of articles in the DATE newspaper “ ORG Demokratike ” ( “ the newspaper ” ) .

On DATE the applicant initiated criminal proceedings against PERSON , the author of the press article which was published on CARDINAL DATE . On DATE the proceedings were discontinued by a decision of ORG ( “ the ORG ” ) pursuant to LAW .

On DATE the applicant lodged a civil action against the newspaper ’s editorial board ( redaksia e gazetës ) represented by its editor - in - chief and sought non - pecuniary damage . On DATE ORG decided that the applicant ’s personality and honour had been seriously tarnished by the press articles . It ordered the payment of CARDINAL NORP leks ( MONEY at the time ) to the applicant .

On an unspecified date ORG Demokratike sh.p.k . ( “ the company ” ) , a limited liability company registered under NORP law and which is the owner of the newspaper , filed an appeal . The appeal was signed by the newspaper ’s editor - in - chief . The company argued , inter alia , that the editorial board did not constitute a legal entity and could not be a party to the said legal proceedings . Therefore , the court was under a duty to replace the defendant by summoning the company in its place , an act which was never carried out .

On DATE ORG ( “ ORG ” ) upheld ORG decision . It held that since the articles had been selected for publication by the editorial board , the latter was liable in its obligations towards third parties .

On DATE the company appealed to ORG , relying on the same grounds of appeal as before ORG . The appeal was signed by the newspaper ’s editor - in - chief . On DATE ORG declared the appeal inadmissible as it did not include any of the grounds of appeal prescribed by LAW ( “ ORG ” ) .

On DATE ORG issued an execution writ in respect of ORG decision of DATE . On DATE the bailiff notified the newspaper ’s editorial board to comply with the judgment within DATE from its notification . The bailiff drew their attention to the mandatory enforcement of the judgment , should they fail to comply with the judgment voluntarily .

On DATE , following the failure of the editorial board to comply with the judgment , the bailiff ordered the attachment of the funds in the newspaper ’s bank accounts . According to the information received by the banks involved , it was apparent that the newspaper ’s editorial board had no bank accounts , except for CARDINAL at ORG , which had virtually no available funds .

On DATE the bailiff decided to discontinue the enforcement proceedings ( pushojë ekzekutimin ) on the ground that the newspaper ’s editorial board had no assets .

NORP The applicant contested the order and it would appear that he applied again to the bailiff . On DATE and DATE , respectively , the bailiff ordered the seizure of funds in the newspaper ’s editorial board ’s bank accounts and served the order on the banks concerned in the territory of GPE .

The banks concerned reconfirmed that the newspaper ’s editorial board did not hold any accounts . On DATE ORG informed the bailiffs that there were no funds in the newspaper ’s editorial board ’s bank account .

On DATE the applicant sent a letter to the Minister of ORG informing him of the continuous non - enforcement of ORG judgment of DATE .

On DATE ORG informed the applicant that their efforts in DATE and DATE had been unsuccessful owing to the lack of available funds in the newspaper ’s editorial board ’s bank account .

On an unspecified date it would appear that the applicant lodged a complaint with ORG on account of the non - enforcement of a final court judgment .

On DATE ORG by way of an administrative letter informed the applicant that it had examined his request and had decided that the issues raised therein were outside its jurisdiction .

On DATE the Government informed ORG decision of DATE which had declared invalid the writ of execution of DATE . The proceedings in question were brought by the newspaper ’s company , following – it would appear – the attempted enforcement of the decision against the company . The applicant had been summoned to intervene as a third party to those proceedings . In its decision , which was given in absentia , ORG stated that the writ could not be enforced against the newspaper ’s company as it had never been a party to the domestic legal proceedings . ORG further added that , since the newspaper ’s editorial board was neither a legal entity nor a physical person , having regard to the development and application of the law as it stood at the material time in DATE , the writ of execution remained non - enforceable .

LAW , in so far as relevant , reads as follows :

“ In the protection of his constitutional and legal rights , freedoms and interests , or in defending a criminal charge , everyone has the right to a fair and public hearing , within a reasonable time , by an independent and impartial court established by law . ”

“ The Constitutional Court shall determine : ... ( f ) complaints by individuals alleging a violation of their constitutional rights to a fair hearing , provided all legal remedies for the protection of those rights have been exhausted . ”

Section CARDINAL of LAW stipulates the deadline for the submission of applications before that court . Individual applications for alleged violations of constitutional rights must be submitted DATE after the commission of the violation .

The same time - limit of DATE applies in the event of the notification of a final judicial decision .

The Constitutional Court first accepted that the non - enforcement of a final court decision constituted a breach of an appellant ’s right to a fair hearing in judgment no . CARDINAL of DATE . Prior to that , ORG used to dismiss such applications as falling outside its jurisdiction .

A detailed outline of ORG case - law as regards the non - enforcement of final court decisions has been described in this ORG ’s judgment in GPE v. GPE , no . CARDINAL , § § DATE , DATE .

Article CARDINAL/a of the ORG provides that a final court judgment is binding on the parties , their heirs , the court that adopted the judgment and other courts and institutions .

Article CARDINAL of the ORG provides for the possibility of a party to seek leave to appeal out of time .

Article CARDINAL of the ORG stipulates that a judgment can be enforced only on the basis of an execution title , which includes , inter alia , a final court judgment . Under LAW ORG , an execution title is executed at the request of the creditor . An execution writ is issued for this purpose . In the wording of LAW ORG , an execution writ is enforced by the bailiff at , inter alia , the request of the creditor . The bailiff invites the debtor to comply voluntarily with the execution writ in accordance with the time - limits laid down in LAW ORG . Should the debtor fail to comply with a voluntary enforcement within the prescribed time - limits , the bailiff proceeds with a mandatory enforcement in accordance with LAW ORG .

Under LAW the bailiff is empowered to seize the debtor ’s loans as well as movable and immovable property to the extent necessary for the enforcement of monetary obligations . At the debtor ’s request , seizure may also be imposed on another property if the bailiff considers that it satisfies the creditor ’s needs pursuant to LAW .

Under LAW ORG , the parties may complain to the court of an act or failure to act by the bailiff within DATE of the said act or omission . There is a right of appeal against the court decision in accordance with LAW ORG . The appeal has no suspensive effect on the execution .

The bailiff may decide to discontinue execution in accordance with LAW ORG if : a ) the debtor complies with the execution writ ; b ) the creditor renounces , in writing , his right to the enforcement ; c ) the execution writ is repealed ; ç ) the debtor ’s civil action in accordance with LAW ORG has been accepted by a final court decision ; d ) the bailiffs alone or in cooperation with the creditor do not find any assets belonging to the debtor within DATE from the start of the enforcement proceedings . The parties may challenge the bailiff ’s decision to discontinue enforcement at the district court in accordance with LAW ORG .


The applicant was born in DATE and lives in GPE . He is a pastor attached to the NORP Faith Centre , a bible based NORP ministry in GPE .

NORP In DATE the NORP Faith Centre submitted an advertisement to an independent , local and commercial radio station for transmission . The text of the advertisement read as follows :

“ What think ye of NORP ? Would you , like PERSON , only say that he is the son of the living God ? Have you ever exposed yourself to the historical facts about NORP ? The NORP Faith Centre are presenting for DATE an TIME long video by Dr PERSON on the evidence of the resurrection from DATE TIME at TIME and GPE DATE at CARDINAL.CARDINALam and also live by satellite at CARDINAL.CARDINALpm . ”

The radio station was prepared to broadcast the advertisement . However , in DATE ORG ( “ IRTC ” ) stopped the broadcast pursuant to LAW ) of ORG DATE ( “ the DATE LAW ) . This ruling did not affect the later transmission of the video by satellite .

The applicant applied for leave to take judicial review proceedings . He cited the LAW and the Attorney General as respondents and submitted that the ORG had wrongly construed LAW ) and , alternatively and mainly , that if the ORG had correctly applied section CARDINAL(CARDINAL ) of LAW , that provision was unconstitutional .

By judgment delivered on DATE , ORG found that the ORG had not infringed section CARDINAL(CARDINAL ) of LAW . It further considered that the unspecified right to communicate guaranteed by LAW CARDINAL(CARDINAL)(CARDINAL ) of the LAW was at issue since the advertisement had , as its principal purpose , the communication of information . However , it found that section CARDINAL(CARDINAL ) was a reasonable limitation on the right to communicate and that there were good reasons in the public interest for the ban .

In so concluding the High Court judge stated as follows :

“ I think that it would have been reasonable for [ ORG ] to take the view that in NORP society religious advertising on commercial radio might be undesirable in the public interest . ... It is sufficient , in my view , if there were good reasons in the public interest for the ban . NORP people with religious beliefs tend to belong to particular churches and that being so religious advertising coming from a different church can be offensive to many people and might be open to the interpretation of proselytising . Religion has been a divisive factor in GPE and this is something which [ ORG ] may well have taken into account . ... a person listening to commercial radio is for all practical purposes compelled to listen to the advertisements . That being so , it is legitimate for any [ ORG ] to have regard to the type of advertisements which might be permitted . The impugned Section enjoys the presumption of constitutionality . It is not obvious to me that a restriction on religious advertising is not a reasonable restriction in the interest of the common good on this particular form of exercise of the right to communicate .

Of course it has been suggested on behalf of the Applicant that a blanket restriction is not proportional and that even if some restriction would be reasonable it would have to be less draconian . The absolute restriction according to the argument of Counsel for the Applicant infringes the doctrine of proportionality . I can not accept this view . On the legislation as it stands there are very few limitations on the right to advertise and in that sense proportionality has already been taken into account . But at any rate , I do not think that one could subdivide religious advertising . Once a reasonable view can be put forward that religious advertising might be undesirable in the public interest , it would be impossible in practice to devise a wording that might have the effect of permitting certain alleged categories of innocuous religious advertising . It is the fact that the advertisement is directed towards a religious end and not some particular aspect of a religious end which might be potentially offensive to the public . ”

ORG rejected the applicant 's appeal by judgment dated DATE . The judgment began by noting that :

“ One can best glean the policy of the Act of DATE by looking at the CARDINAL kinds of prohibited advertisement collectively . One might get a false impression by singling out CARDINAL kind of banned advertisement and ignoring the others . All CARDINAL kinds of banned advertisement relate to matters which have proved extremely divisive in NORP society in the past . [ ORG ] was entitled to take the view that the citizens would resent having advertisements touching on these topics broadcast into their homes and that such advertisements , if permitted , might lead to unrest . Moreover , [ ORG ] may well have thought that in relation to matters of such sensitivity , rich men should not be able to buy access to the airwaves to the detriment of their poorer rivals . ”

ORG considered that religion was a private and a public affair and that the impugned provision was a restriction of the applicant 's right freely to communicate and of his right to freedom of expression ( Articles CARDINAL(CARDINAL ) and CARDINAL(CARDINAL)(CARDINAL ) of the LAW , respectively ) which rights could be limited in the interests of the common good . The court cited with approval previous case - law which considered that the balance found by parliament between the individual rights and the common good should prevail :

“ ... unless it was oppressive to all or some of the citizens or unless there is no reasonable proportion between the benefit which the legislation will confer on the citizens or a substantial body of them and the interference with the personal rights of the citizen . ”

The court went on to point out that the real question was whether the limitation imposed upon the various constitutional rights was proportionate to the purpose which parliament wished to achieve . Again quoting with approval previous case - law , it described the principle of proportionality as follows :

“ In considering whether a restriction on the exercise of rights is permitted by LAW the courts in this country and elsewhere have found it helpful to apply the test of proportionality , a test which contains the notions of minimal restraints on the exercise of protected rights and the exigencies of the common good in a NORP society . This is a test frequently adopted by ORG and by ORG in the following terms . ' The objective of the impugned provision must be of sufficient importance to warrant over - riding a constitutionally protected right . It must relate to concerns pressing and substantial in a free and democratic society . The means chosen must pass a proportionality test . They must ( a ) be rationally connected to the objective and not be arbitrary , unfair or based on irrational considerations ; ( b ) impair the right as little as possible ; and ( c ) be such that the effects on the rights are proportional to the objective . ”

ORG found that section CARDINAL(CARDINAL ) of the DATE Act complied with this test - the restriction was “ minimalist ” , the applicant had the right to advance his views in speech or writing or by holding assemblies or associating with persons of like mind as himself ; he had no lesser right than any other citizen to appear on radio or television ; and the only restriction placed upon his activities was that he could not advance his views by a paid advertisement on radio or television . As regards the blanket nature of the ban and the applicant 's argument that it would have been possible to introduce a more selective administrative system whereby inoffensive religious advertisements would be permitted , ORG noted :

“ No doubt this is true . But [ parliament ] may well have decided that it would be inappropriate to involve agents of the ORG in deciding which advertisements , in this sensitive area , would be likely to cause offence and which not . ”

ORG went on to conclude that :

“ It therefore appears to the court that the ban on religious advertising contained in section CARDINAL(CARDINAL ) of LAW is rationally connected to the objective of the legislation and is not arbitrary or unfair or based on irrational considerations . It does appear to impair the various constitutional rights referred to as little as possible and it does appear that its effects on those rights are proportional to the objective of the legislation . ”

In any event , once the impugned provision was broadly within the competence of parliament and parliament had respected the principle of proportionality , ORG indicated that it was not for it to interfere simply because it might have made a different decision . The presumption of constitutionality of the legislation had not therefore been rebutted and the applicant 's appeal could not be allowed .

Article CARDINAL of the LAW provides , in so far as relevant , as follows :

“ CARDINAL(CARDINAL ) The ORG guarantees in its laws to respect , and , as far as practicable , by its laws defend and vindicate the personal rights of the citizen . ...

CARDINAL ) The ORG guarantees liberty for the exercise of the following rights , subject to public order and morality:–

( i ) the right of the citizens to express freely their convictions and opinions .

The education of public opinion being , however , a matter of such grave import to the common good , the ORG shall endeavour to ensure that organs of public opinion , such as the radio , the press , the cinema , while preserving their rightful liberty of expression , including criticism of Government policy , shall not be used to undermine public order or morality or the authority of the ORG .

The publication or utterance of blasphemous , seditious , or indecent matter is an offence which shall be punishable in accordance with the law . ”

DATE , in so far as relevant , reads as follows :

“ CARDINAL(CARDINAL ) Freedom of conscience and the free profession and practice of religion are , subject to public order and morality , guaranteed to every citizen . ...

( CARDINAL ) The ORG shall not impose any disabilities or make any discrimination on the ground of religious profession , belief or status . ”

The CARDINAL Act was enacted to , inter alia , enable an ORG to be established for the purpose of providing a national television and sound broadcasting service . The national radio and television broadcaster ( “ ORG ” ) was also established . Section CARDINAL ) of the DATE Act provided as follows :

“ The ORG shall not accept any advertisement which is directed towards any religious or political end or has any relation to any industrial dispute . ”

When introducing this provision the Minister explained to PERSON ( the ORG ) the rationale of this provision :

“ If advertisements directed towards these ends were permitted the ORG would have to accept advertisements from any religious group , including advertisements which the majority of viewers might consider very objectionable and offensive . Therefore , the only sound policy is not to permit any advertisements directed towards religious ends to be broadcast : otherwise the ORG would be placed in a very difficult position . There will of course be religious programmes as there have been on PERSON , and appeals for funds for charitable purposes , but these are quite different and distinct from paid advertisements directed towards religious ends , and I think the policy enshrined in this subsection is the correct one . ”

Section CARDINAL of LAW is entitled “ Impartiality ” and provides as follows :

“ ( CARDINAL ) It shall be the duty of the ORG to secure that , when it broadcasts any information , news or feature which relates to matters of public controversy or is the subject of current public debate , the information , news or feature is presented objectively and impartially and without any expression of the ORG 's own views .

( CARDINAL ) Nothing in this section shall prevent the ORG from transmitting political party broadcasts . ”

The CARDINAL Act was enacted to establish ORG ( “ IRTC ” ) having the function of entering into contracts for the provision of sound broadcasting and a television programme service additional to the services already provided by the national broadcaster , ORG .

Section CARDINAL is entitled “ Duty of sound broadcasting contractor in relation to programmes ” and provides as follows :

“ ( CARDINAL ) Every sound broadcasting contractor shall ensure that –

( a ) NORP all news broadcast by him is reported and presented in an objective and impartial manner and without any expression of his own views ;

( b ) the broadcast treatment of current affairs , including matters which are either of public controversy or the subject of current public debate , is fair to all interests concerned and that the broadcast matter is presented in an objective and impartial manner and without any expression of his own views : Provided that should it prove impracticable in relation to a single broadcast to apply this paragraph , CARDINAL or more related broadcasts may be considered as a whole , if the broadcasts are transmitted within a reasonable period of each other ;

( CARDINAL ) Nothing in subsection ( CARDINAL ) ( a ) or ( CARDINAL ) ( b ) shall prevent a sound broadcasting contractor from transmitting political party broadcasts : Provided that a sound broadcasting contractor shall not , in the allocation of time for such broadcasts , give an unfair preference to any political party . ”

Section CARDINAL(CARDINAL ) of the DATE Act applied to independent radio and television broadcasters the same prohibition applied to ORG ( by section CARDINAL(CARDINAL ) of LAW ) . Section CARDINAL(CARDINAL ) provided as follows :

“ No advertisement shall be broadcast which is directed towards any religious or political end or which has any relation to an industrial dispute . ”

This bill , never passed , proposed amending section CARDINAL(CARDINAL ) of LAW . This proposal was prompted by ORG judgment in the present case and a subsequent prohibition of an advertisement by the NORP Catholic newspaper pursuant to that provision . During the parliamentary debate on this PERSON , the Minister ( for Arts , ORG , ORG and the LOC ) noted that :

“ Essentially we are dealing with a provision that is DATE . It can be argued that it is timely to reconsider a prohibition such as is contained in these subsections . It can be argued that the blanket ban contained in these provisions is too blunt an instrument to be used in DATE and age for what is now a largely well educated society with a sophisticated understanding of the way media , including the very powerful radio and television media , work . It is helpful to our debate that in the recent past the constitutionality of this very provision – that is , the prohibition on advertising directed towards DATE was tested in the courts during DATE and DATE . ”

Having referred in detail to the High and ORG judgments in the present , the Minister went on :

“ In dealing with the PERSON , we are considering a proposal by the NORP to amend a legislative provision that was found to be constitutional as recently as DATE . We are being asked to amend a provision that was found by ORG not to be arbitrary or unfair and which impairs our constitutional rights as little as possible . ORG and ORG acknowledged the sensitivity of the substance of the existing provisions of the section which the PERSON is designed to amend . Anyone who reads these judgments must come to the conclusion that any amendment of the section which would give an agent of the ORG the power or responsibility of deciding which types of religious advertisements are permissible and which are not must be approached with great care if we are not to create considerable and perhaps insurmountable difficulties for the [ IRTC ] as suggested in the LAW . ...

The PERSON appears to have as its intention that the [ IRTC ] should have the scope to determine whether a political or religious newspaper or journal is bona fide . Where the journal or newspaper is bona fide , advertisements promoting the sale , for a cover charge of such publications , will not be prohibited under section CARDINAL(CARDINAL ) of LAW , provided the advertisement is directed to the promotion of the newspaper and is not sectarian or directed towards a political end . If the PERSON were to be enacted , the [ IRTC ] would have a number of decisions to make . ... whether a particular religious journal or newspaper is bona fide ... [ and ] ... whether the advertisement promotes the publication and is not sectarian or directed towards a political end .

I am satisfied that the provisions in the proposed legislation would place the [ IRTC ] in the position of having to make a value judgment in distinguishing between publications . In order to come to a decision as to whether a particular publication is a bona fide political or religious journal , the [ IRTC ] would have to assess the goals of any particular publication and possibly the goals of the religious or political organisation itself . Furthermore , the [ ORG ] would have to make an additional value judgment in determining what is or is not sectarian . The PERSON provides no guidelines or parameters within which the [ IRTC ] can make these difficult and sensitive judgments .

There is no provision for an appeals mechanism even though the Bill would give the [ IRTC ] the power to discriminate between CARDINAL newspaper and another without providing any detailed grounds for doing so . As I indicated earlier , ORG and ORG judgments indicated the practical and administrative difficulties that would have to be overcome if a selective ban on the type of advertisements covered by section CARDINAL(CARDINAL ) of the DATE Act was to be introduced . The PERSON does not provide any means for dealing with the concerns expressed in these judgments . It would be foolhardy to progress without ensuring that we are not making matters worse .

Turning to the policy rather than the detail proposed in the PERSON , it is legitimate to consider whether a more selective ban on advertising directed towards a religious end might be developed . However , to make the ban selective , the means selected would have to ensure that any system provided for assessing the suitability of advertisements would be applied within the limits of the LAW and in a constitutional manner . At the very least , the rights contained in LAW would have to be respected and fair proceedings for those aggrieved would have to be provided . Making the ban selective could also be seen as a curtailment of the right to free speech and expression provided by LAW . It might be a wiser course to consider providing the [ IRTC ] with powers to ban a particular advertisement in relation to religious material if it considers that the advertisement in question offends public order or morality rather than possibly discriminating between different publications .

However , it is clear that advertising directed towards a religious end is a very special category of advertising . Advertising is to some extent regulated in most countries . Television advertising in particular is regulated throughout ORG through , at a minimum , the Television without Frontiers Directive . That directive recognises the importance which individual member states attach to the regulation of broadcast advertising in that it provides that a member state may impose stricter regulation on broadcasters operating under its jurisdiction than is provided for in the directive .

The regulation of advertising tends to be based on the general provision that all advertising should be legal , honest , decent and truthful . This is provided for in the codes of standards , practice and prohibitions in advertising , sponsorship and other forms of commercial promotion in broadcasting services which were drawn up under the provisions of section CARDINAL(CARDINAL ) of LAW , DATE . The same basic principle is provided in the Code of ORG for GPE drawn up by ORG for GPE .

ORG for GPE is a self - regulatory body , which was established by the advertising industry in DATE , and deals with advertising in most media including newspapers , posters and cinema as well as broadcasting . Understandably , the code drawn up under the [ GPE ] Broadcasting Act DATE , does not deal with advertising directed towards a religious end as there is a blanket ban on such advertising . On the other hand , the [ ORG for Ireland ] ASAI code specifically excludes advertisements whose principal purpose is to express the advertisers ' position on political , religious , industrial relations , social or aesthetic matters or on an issue of public interest or concern from the scope of its code . It is interesting [ CARDINAL ] that the [ ASAI ] decided not to apply its standards to these sensitive areas even though there is no statutory bar against it so doing .

It would be extremely difficult to regulate religious advertising in the same way as advertising for goods and services is regulated . How does CARDINAL determine if an advertisement directed towards a religious end is truthful ? No product or service is being sold . While religious advertisers may hold their beliefs with the utmost conviction , the claims made in such advertisements are matters of belief and are not measurable by any objective standard .

While I oppose the PERSON , I am prepared to look at the policy which it attempts to put in place , that is , a more selective ban on advertising directed towards a religious end . If an appropriate amendment can be developed , I would hope to introduce it on ORG during the passage of LAW , which I hope to publish in the immediate future ... . In considering an amendment , I will have to have regard for many of the issues raised in the judgments which I quoted earlier .

These issues include in particular in relation to matters of such sensitivity , that rich men should not be able to buy access to the airwaves to the detriment of their poorer rivals ; the provisions of LAW conferring a right to communicate and the right of citizens to express freely their convictions and opinions will be clearly respected , and the provisions of LAW which guarantee freedom of conscience and the free profession of and practice of religion to every citizen subject to public order and morality and which prohibit any imposition by the ORG of any disabilities or the making of any discrimination on the grounds of religious profession , belief or status will also be respected .

To achieve these aims it will be necessary to give consideration to devising fair procedures and natural justice measures to ensure that the body charged with regulating such advertisements will uphold and be seen to uphold these rights .

It may be that if we are to consider relaxing the existing total ban on broadcast advertising directed towards a religious end , we must inevitably consider the removal of the prohibition of the ban in its entirety rather than the introduction of a more selective prohibition . Given the concerns which I have already mentioned , it may be the only safe way to proceed . However such a step can not be taken lightly . To proceed to a more selective prohibition or to the removal of the prohibition without qualification will need considerable thought and consultation . Broadcasting , both television and radio , is recognised as the most powerful mass communications medium ever developed . Audiences for certain programmes are measured in CARDINAL . Radio is a secondary medium in that it can be present while other activities in the workplace , the home or the car are being carried out . Unlike a newspaper or magazine where a page can be turned quickly after a brief scan , a person is compelled to listen to , or at least hear , a radio advertisement if the listener wishes to ensure that her or his enjoyment of the programme is not interrupted . Children and young people are constantly exposed to the images , messages and attitudes which are promulgated on radio and television .

Parents might quite properly wish to ensure that their children are exposed only to the religious profession of their choosing . It is possible that many such people would find advertising directed towards a religious end offensive simply because of the particular religious organisation which is making the advertisement . While it might be possible to prevent the broadcast of advertising directed towards a religious end during TIME of broadcasting devoted to children 's programming , we all know that children and young people watch prime time television and listen to the radio at TIME so such a measure would only offer limited protection . I will not deal here with the alleged problems surrounding various cults and sects that have caused anxiety to families and whose activities could be interpreted as being directed towards a religious end .

We must proceed very cautiously in this sensitive area . Perhaps in an era of ever increasing numbers of broadcast services becoming available via satellite , which is outside the legislative regime which applies to indigenous broadcasters , the total prohibition on advertising directed towards a religious end is an anachronism . It may be time to rely on our broadcasters not to offend or alienate their audiences through unacceptable advertising in this area . However , any change to the present position must be brought about through careful consideration and consultation with bodies such as the churches , the [ IRTC ] and broadcasters and the public generally .

The PERSON before the ORG does not address any of the concerns which I have mentioned . There are no definitions or parameters within which the [ IRTC ] would exercise the powers which the PERSON seeks to confer on it . There are no safeguards or recourse provided for those who are aggrieved by the decisions which the [ IRTC ] might take if this PERSON were enacted . The prohibitions in ORG Acts relating to ORG are not addressed . While I accept that it is appropriate for the ORG to consider the policy proposed ... we can not proceed without considerably more thought than is evidenced by the provisions of the PERSON . The enactment of the PERSON is likely to cause far more problems than it would resolve .

This is a sensitive issue and I commend the Deputies opposite for giving us an opportunity to discuss it at length . While I understand the laudable motives of the Deputies in publishing this PERSON , it is important that further consideration is given to the matter . There will be an opportunity to discuss the whole issue of broadcasting when I publish my broadcasting PERSON . I will consider this issue and could be in a position to look at the overall problem in that context . If wording can be found we can easily bring that into the PERSON by way of an amendment on ORG . ”

The DATE Act was mainly designed to facilitate the introduction of digital terrestrial broadcasting in GPE . The PERSON became ORG of GPE and was given expanded functions and powers in relation to digital broadcasting .

Section CARDINAL of the DATE Act applied section CARDINAL(CARDINAL ) of LAW to digital and other broadcasting services . However , section CARDINAL of the DATE Act relaxed the prohibition of the broadcasting of religious advertising as follows :

“ CARDINAL . Nothing in section CARDINAL(CARDINAL ) of the Act of DATE or section CARDINAL(CARDINAL ) of the Act of DATE ( including either of those sections as applied by LAW ) shall be construed as preventing the broadcasting of a notice of the fact -

( a ) that a particular religious newspaper , magazine or periodical is available for sale or supply , or

( b ) that any event or ceremony associated with any particular religion will take place ,

if the contents of the notice do not address the issue of the merits or otherwise of adhering to any religious faith or belief or of becoming a member of any religion or religious organisation . ”

This section was proposed by the Minister at the ORG stage on DATE as an added section to the PERSON already published . The ORG accepted the proposal without debate .

The Directive co - ordinates certain provisions of Member GPE of ORG on television broadcasting . LAW provides , inter alia , that television advertising shall not prejudice respect for human dignity , include any discrimination on grounds of race , sex or nationality or be offensive to religious or political beliefs .


Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in GPE .

In DATE the applicant bought a share in some land ( plot no . CARDINAL ) which was jointly owned by several other persons , in the Kadıköy district of GPE . According to the title - deed the applicant ’s share corresponded to CARDINAL/CARDINAL of the plot . The applicant submitted a copy of a map dated DATE where he is mentioned as the owner of the part of the land designated as no . CARDINAL in plot no . CARDINAL ( hereinafter “ land no . CARDINAL ” ) , which was QUANTITY in size .

By decision no . CARDINAL dated CARDINAL DATE , GPE divided the property amongst its owners and created separate titles . The applicant was allocated the part of the land designated as no . CARDINAL in plot no . CARDINAL . It appears that the Municipality allocated parcel no . CARDINAL to a firm .

On an unspecified date the applicant filed an action with ORG against GPE , requesting the annulment of decision no . CARDINAL .

On DATE , upon the applicant ’s request to prevent the transfer of the allocated plot of land to third persons , ORG stayed the execution of the LOC ’s decision no . CARDINAL . The court file , the application of the LOC ’s decision no . ORG would engender irremediable damage .

On DATE the firm sold its land to another person , PERSON PERSON , who in turn sold it to Mr GPE on CARDINAL DATE .

On DATE ORG annulled the part of the GPE ’s decision affecting the applicant on the ground that it was unlawful . The court , after having examined the evidence in the case file and the experts’ report , held that the value of the land allocated to the applicant by the GPE ’s decision was inferior to the value of the applicant ’s parcel , and that there was a building on it which belonged to third persons . Therefore the Municipality had attributed the impugned land to the applicant without sufficient investigation and examination .

In the meantime , on DATE the applicant filed an action requesting ORG to annul the title deed of the firm to land no . DATE and to register it under his name in the land registry . Mr PERSON , the owner of the land at that time , also joined the proceedings . It appears that on CARDINAL DATE the court issued a temporary injunction to prevent to transfer of the land to third parties . On DATE the court dismissed the case . This action ended with dismissal on the ground that the applicant did not have locus standi since the administrative proceedings concerning the annulment of decision no . CARDINAL/CARDINAL were still pending before the courts . This judgment became final on DATE when ORG rejected the applicant ’s appeal and subsequent rectification request . On DATE the first - instance court lifted the temporary injunction .

NORP On DATE ORG upheld the judgment of the first - instance court . On DATE it dismissed the ORG ’s request for rectification of its decision .

The criminal proceedings instigated , upon the applicant ’s complaint , against the mayor of ORG , the director and co - director of construction affairs of the GPE and the vice chairman in charge of construction affairs were suspended , pursuant to LAW no . DATE , on DATE .

In the meantime , the applicant applied , without success , to various authorities requesting their assistance in the enforcement of the judgment given in his favour and the re - inscription of the title deed of land no . CARDINAL in his name . The latest such petition was dated DATE and addressed to LOC . In this petition , the applicant referred to GPE response dated DATE where he was informed that it was not possible to enforce the judgment of CARDINAL DATE and that he could lodge an action against the firm and PERSON PERSON

According to the land registry record dated DATE the applicant remained the owner of land no . DATE , which is QUANTITY in size .

A description of the relevant domestic law at the material time can be found in GPE and GPE and Others v. GPE ( nos . GPE , CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL , ORG , CARDINAL and GPE , § § DATE , CARDINAL DATE ) .


Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award

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

The applicant was born in DATE and lives in PERSON .

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

According to the prosecution , PERSON was invited to a bar on DATE by several persons , including PERSON and PERSON , her former neighbours , and the applicant , in whose apartment PERSON and PERSON rented a room .

In the bar they all consumed alcohol and then added a soporific to PERSON 's glass , after which she fell asleep . PERSON took PERSON , U. and the applicant in his car to a remote area . PERSON and the applicant took PERSON out of the car and tried to strangle her with a cord . When this failed they tied her limbs and threw her into a well , where she drowned .

On DATE , a police officer , reported that he was trying to locate T. , who could have information regarding PERSON 's whereabouts . Officer PERSON proposed indentifying the person(s ) offering PERSON 's apartment for sale in order to find T.

On DATE T. , CARDINAL of PERSON 's neighbours , made a written statement , giving details about PERSON 's murder as allegedly told to her by U. She named PERSON , NORP and S. as perpetrators of the crime . She also mentioned her intention to move to GPE , GPE , where her grandmother lived . On DATE officer PERSON filed a report on a conversation with T. in which he reported that ORG had stated that the applicant had also been involved in the crime . On DATE T. was interviewed by investigator PERSON and confirmed the events as described in the officer 's report . She declared that PERSON had told her about the details of the crime on DATE . She did not mention the applicant 's name or that he had participated in any manner in the crime .

On DATE the police found the applicant at his friends ' address and told him that he owed them money . He was requested to follow them to the police station , where he was arrested . He was then informed that he , PERSON and U. were suspected of having murdered PERSON

According to the applicant , immediately after his arrest he told the investigator all the details about the murder of PERSON which he had found out from PERSON , including the place where the body had been left . He had not reported the crime earlier for fear of PERSON retaliation . However , he was then ill - treated for TIME by the investigators to make him own up to the crime : he was allegedly nearly asphyxiated several times with a gas mask . He was also verbally abused and threatened with more serious forms of ill - treatment .

In TIME of CARDINAL DATE the applicant made a self - incriminating statement in the presence of a ORG - appointed lawyer and CARDINAL witnesses . That lawyer allegedly never participated in the proceedings after the confession had been made . In his statement the applicant described the manner of PERSON 's murder and the place where her body had been left . He stated that he and PERSON had attempted to strangle PERSON with a cord , and then tied her up and threw her into a well . No mention was made of hitting PERSON or causing other injuries to her . The confession was filmed . Before the filming of the confessions , a medical expert was requested to verify the presence of any signs of ill - treatment on the applicant 's body . He found no such signs . The applicant expressly stated that he had not been ill - treated . He later declared in court that the filming of his confession had been rehearsed with the investigator , that it was a farce and that he had been warned about further ill - treatment if he were to deny his previous confessions .

The applicant was offered the opportunity to sign the minutes of the interview , first before making any statements in order to confirm that he had been read his rights and then at the end of the interview to confirm what he had stated . However , he refused to sign in both places . He later explained this refusal as a last attempt to resist unlawful pressure .

The second part of the confession made on DATE involved going to the well where the victim 's body had been deposited and filming his confession there . He refused to sign this confession .

On DATE the applicant made another statement , which was essentially the same as that made DATE . He was allegedly threatened with further ill - treatment if he were to deny his earlier confessions .

A forensic report was also drawn up on DATE , concluding that PERSON had died from drowning and that her body had a number of bruises on it , caused by repeated hitting , as well as marks on her hands and legs from the cord with which she had been tied . No sign of strangulation was found on her neck . The expert established that PERSON had died “ DATE before the report was filed ” .

In TIME CARDINAL DATE the applicant was allowed to call his mother and on DATE he declared , in her presence and in the presence of the investigator , that he was innocent . He also mentioned a person with whom he had been held in the same cell at the police station who could confirm that he had been returned to the cell in a poor general state after ill - treatment by the police . However , he was told by both the investigator and his lawyer that the courts would not believe such statements . He allegedly mentioned his ill - treatment and the possible testimony of his cellmate in his complaints to the courts and the prosecutors but these were not followed up . His former cellmate was apparently not questioned . In all his subsequent interviews the applicant maintained his innocence and explained that he had found out about some of the details of the murder , including the place where the body had been deposited , from PERSON , who had taken him to the well after the murder .

The applicant 's new lawyer allegedly noted , on DATE , that there were no signatures on the TIME of the interview , contrary to the law . On DATE signatures appeared on the minutes and the applicant was allegedly forced to sign . He refused and the TIME intervention of his mother prevented the investigators from ill - treating him further . As a result of her intervention the investigators had to write in TIME that the applicant had refused to sign . He was allegedly prevented from writing in TIME the date of DATE as the date when he had refused to sign , contrary to LAW see below ) . On DATE the applicant complained about this fact to the prosecution , but to no avail . TIME of the interview with the applicant of DATE were signed by the investigator in charge of the case , PERSON The statement concerning the applicant 's refusal to sign the minutes was countersigned by investigator NORP , who took charge of the case at DATE .

For DATE he was allegedly detained in inhuman conditions in the cellar of the police inspectorate .

In a statement to the police , ORG 's sister mentioned GPE as a place where their relatives lived .

On DATE ORG acquitted the applicant of the charge of murder and convicted PERSON The court found , inter alia , that it had not been established that the applicant had participated in the crime . It had been established , however , that he had failed to report it when he was told about it by PERSON , which was a criminal offence . The court also found that the confessions made by the applicant in DATE of his detention could not be used as a basis for convicting him because they contradicted other evidence in the case ( his refusal to sign the confessions , which raised doubts about their truthfulness ; the fact that as from DATE and throughout the proceedings he had denied having killed PERSON ; and his alibi , QUANTITY persons , including PERSON , who also lived in the applicant 's apartment at the time of the events , having confirmed that he had returned home at TIME of the murder ) . The court convicted the applicant of failing to report the crime committed by PERSON , but ordered his release on the basis of an amnesty applicable to lesser crimes .

On DATE ORG upheld the lower court 's judgment . The court noted that another person , PERSON , was also suspected of having helped PERSON to murder PERSON and that his case had been disjoined because he was in hiding . The court also noted that , apart from the self - incriminating statement made by the applicant on CARDINAL and DATE , there was nothing in the file proving his involvement in the crime .

On DATE ORG quashed those CARDINAL judgments , finding that the courts had exceeded their competence and had accepted , without giving valid reasons , the applicant 's claim that he had not participated in the crime . A re - hearing of the case was ordered .

On DATE the ORG convicted the applicant of participation in the murder of PERSON and sentenced him to DATE imprisonment .

The court referred to the evidence in the case : witnesses testified to having seen PERSON , NORP , PERSON and the applicant with PERSON in a bar on TIME of her disappearance . Witness T. testified about the intentions of PERSON , who had spoken to her about their plan , to kill PERSON and sell her apartment . Witness ORG testified about PERSON and U. 's actions to obtain the documents necessary for the sale of PERSON 's apartment . Witness PERSON stated that she had witnessed PERSON invite PERSON to a bar on the day of her disappearance .

During a search of the applicant 's apartment some of the documents relating to the sale of LOC 's apartment had been found . The record of the search did not specify whether the documents were found in the room rented by PERSON and NORP or in another place . CARDINAL relevant document was found during a personal search of PERSON

The court referred to the applicant 's confession and the version of the prosecution , according to which the applicant and PERSON had attempted to strangle PERSON , and , having failed to do so , had thrown her into a well . The court found that the evidence , in addition to his confessions , proved his guilt . It was established that PERSON and PERSON had fraudulently obtained various documents from PERSON with the intention of selling her apartment . Moreover , PERSON had never confessed and the applicant 's confessions had been made before the authorities had known the details such as the place where the body was found and the manner of the killing . These circumstances were later confirmed when the applicant showed them that place and when the experts recovered the body in his presence . The forensic report confirmed the types of injuries inflicted as coinciding with the description of the murder given by the applicant .

Besides , there had been no evidence that the applicant had been ill - treated , as proved by the medical examination carried out before his first interview . Moreover , the applicant had declared , in the presence of a lawyer , that he had not been ill - treated . The court considered that his refusal to sign the confession was a means of avoiding criminal responsibility .

All of the above proved the applicant 's guilt .

In his appeal , the applicant declared that he had found out the details about the murder from PERSON , who had taken him to the crime scene on DATE after the murder . He claimed that he had been ill - treated by the police in order to own up to the crime . The judgment did not specify the date of the murder and there was evidence confirming that PERSON had died later than the prosecution maintained . The applicant also submitted that , before being questioned as an accused , he had told the police all the details about the murder which he had found out from PERSON This contradicted the court 's finding that the police had not had any details about the murder before the applicant 's interview as a suspect . He refused to sign both confessions but could not offer further resistance due to fear of ill - treatment . He referred to evidence in his criminal file that on TIME CARDINAL DATE his relatives had concluded a contract with a lawyer for his representation but that the investigator had refused to allow that lawyer to represent him . He was then provided with another lawyer whom he did not trust and who did not protect his rights , but was in agreement with the investigator . In addition , the presence of a medical expert and witnesses at the first interview was not a common practice and the expert had not been warned , according to the law , of his criminal responsibility for making false statements . The unusual presence of so many persons at the very first interview only confirmed that the investigator had known that the applicant 's will had been broken as a result of ill - treatment and he had agreed to “ confess ” . The investigator needed to create a very strong appearance of lack of ill - treatment which would be difficult to rebut . The court had failed to even mention the statement of PERSON , which constituted an alibi for the applicant because it confirmed that he had returned home much earlier than PERSON and U.

On DATE ORG upheld the first - instance court 's judgment . The court found that the guilt of PERSON and of the applicant had been fully proved by the witness statements of ORG , the police officer who reported on ORG 's statements and the results of the forensic report . The court referred to the applicant 's confession and the version of the prosecution , according to which the applicant and PERSON had attempted to strangle PERSON and after they failed to do so had thrown her into a well .

The applicant 's withdrawal of his earlier statements was considered a means of avoiding criminal responsibility .

In his appeal in cassation the applicant reiterated his arguments made earlier and added that ORG had testified that he had been back home at TIME , as confirmed by PERSON , thus providing him with an unchallenged alibi . Witness T. did not mention his name in her statement . The illtreatment applied to him ( making him wear a gas mask and blocking the access of air until he lost consciousness from suffocation ) could not have left marks on his body . He referred to the findings of the forensic report , which contradicted his statements and the version of the prosecution , according to which he and PERSON had attempted to strangle PERSON That report did not find any marks of strangulation but found multiple injuries , which confirmed that PERSON had been hit repeatedly . The date of the murder had not been established : the residual quantity of the soporific in PERSON 's blood was small , confirming that she had taken it a long time before her death . In addition , the expert declared that she had died DATE before the report was drawn up ( on DATE ) , which excluded the date of CARDINAL DATE as the date of the murder . Another expert submitted in DATE that PERSON had died DATE before the report of DATE , which also challenged the prosecution 's version that PERSON had been murdered on DATE . The applicant drew the court 's attention to his refusal to sign the confessions , which cast doubt on their genuine character . He invoked Articles CARDINAL , CARDINAL and CARDINAL of the Convention .

On DATE ORG upheld the judgment of DATE . The court found that the guilt of the accused had been fully proved . It referred to the prosecution 's version of events , according to which the applicant and PERSON had attempted to strangle PERSON It also referred to the confession made by the applicant on DATE in the presence of a lawyer , according to which he and PERSON had taken PERSON to a well and hit her repeatedly but because she had not died , they had thrown her into the well , where she drowned . The forensic report confirmed the manner of PERSON 's killing and the injuries on her body corresponded to the applicant 's statements . In addition , witnesses confirmed the accused 's intentions to sell PERSON 's apartment and the relevant documents were found in the apartment in which all the accused lived .

The court found that there was no evidence of ill - treatment , the applicant having made his confessions in the presence of his lawyer and a number of other persons .

The relevant provisions of LAW ( in force at the time of the events ) read as follows :

“ Article CARDINAL

... Evidence obtained in violation of the present Code or not properly examined during the court hearing can not constitute the basis of a court conviction or of other procedural documents .

Article CARDINAL

... The initial interview of an accused in custody shall be made only in the presence of a defence counsel , chosen or appointed ex - officio .

Article CARDINAL

The minutes of an investigation procedure shall be filed during that procedure or immediately thereafter . ...

After the end of the interview the audio or video recording shall be reproduced in full for the interviewee . ... The audio or video recording shall end with a declaration by the interviewee confirming the correctness of the recording .

Article CARDINAL

If the accused ... refuses to sign the minutes of the investigation procedure , a note on that shall be made in the minutes , signed by the author of the minutes .

Anyone who refuses to sign the minutes shall be given the possibility to explain the reasons for the refusal , which shall be noted in the CARDINAL ” .


No violation of Art. 8;No violation of Art. 14+8

The applicant was born in DATE and lives in the city of GPE , GPE ( GPE ) .

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

The full name of the applicant , a NORP citizen of NORP origin , is , in LANGUAGE , “ PERSON ” ( PERSON ) . PERSON is the first , or given , name ; PERSON is the surname , while PERSON is the “ patronymic ” ( otchestvo in NORP , po - bat'kovi in GPE ) - in other words , a second given name , derived from the father 's given name and the appropriate gender suffix .

The applicant was born on the territory of former NORP GPE . His birth certificate was issued in the NORP language . On DATE , by then living on the territory of former NORP GPE , the applicant received his first NORP passport ( паспорт гражданина ORG ) , issued in NORP and NORP . According to the applicant , in the NORP version , his name and patronymic were transliterated from LANGUAGE as “ ORG ” ( PERSON ) . According to the Government , the applicant 's name and patronymic could not appear in the NORP version other than in its NORP form – “ PERSON Володимирович ” ( ORG ) , since the rules at that time knew no exceptions . ( However , neither party could submit any document to prove their assertions , because no archives or copies of that passport exist any longer ) .

NORP In DATE the applicant lost his passport and , given a lack of new NORP passport forms , he was issued with a special temporary identity certificate drafted in NORP .

In DATE the applicant applied for and received a NORP citizen 's internal passport ( паспорт громадянина GPE ) from ORG in GPE управлiння PERSON внутрiшнiх справ PERSON , “ the Directorate ” ) . PERSON of this document is drawn up in NORP , and the applicant 's given name and patronymic appear in their NORP form “ PERSON Володимирович ” ( ORG ) . However , on page CARDINAL of the passport , which is in LANGUAGE , his whole name is written in its original NORP form .

NORP In DATE the applicant applied to the ORG for a NORP citizen 's passport for travel abroad ( паспорт громадянина GPE для виїзду за кордон ; an “ external passport ” ) . It appears from the case file that , when submitting his application , the applicant was obliged to complete and sign a form on which he gave his given name as ORG . This “ PERSON ” form of his given name ( “ ORG / DMYTRO ” ) appears on the first page of the passport , which is in GPE and LANGUAGE ; there is no mention of the patronymic . The applicant challenged this “ NORP ” by means of an internal appeal , submitted to the management of the ORG 's local branch , which dismissed it .

NORP In DATE the applicant appealed to ORG , PERSON . He submitted that there had been a violation of his right to the integrity of his given name , and asked the court to order the authorities to issue him with a new passport and to pay him CARDINAL hryvnas for non - pecuniary damage .

After adversarial proceedings , the court dismissed the appeal in a judgment of DATE . The judgment noted that the disputed spelling complied with the relevant regulations , which stated that all entries on the first page of an external passport were to be in GPE and LANGUAGE . The court also noted that all of the principal entries in such a passport were to follow the model of the corresponding entries in the internal passport issued to the same person . On the first page of his internal passport , the applicant 's given name had been entered as ORG ; accordingly , this spelling was also to be used in the external passport . In addition , the court pointed out that the applicant himself had written his given name as ORG on the passport application form ; consequently , his objections were unfounded .

The applicant appealed to ORG . He vehemently denied that he had used the form ORG on the application form . In his opinion , this was a manifestly erroneous finding by the court of first instance , since he had , without question , indicated that his given name was PERSON and not PERSON .

In a judgment of DATE , ORG dismissed the appeal and upheld the findings of the court of first instance .

The applicant subsequently made several applications to the prosecution service and the President of ORG for supervisory review of the final decision , all of which were dismissed .

NORP In DATE the applicant submitted an internal appeal to the head of the ORG 's local branch . He challenged the fact that his given name and patronymic had been translated into NORP ; in particular , he alleged that , even on the NORP page of the passport , these ought to have appeared in their original form merely transliterated into the NORP alphabet , not replaced by their NORP equivalents . Consequently , according to the applicant , his name ought to have been written on page CARDINAL of the passport as “ LOC ” ( PERSON ) , since the NORP grapheme ' И ' reads as [ i ] in NORP but as [ y ] in GPE . The appeal was dismissed .

NORP In DATE the applicant lodged an application with ORG , PERSON , for an order requiring the authorities to issue him with a new passport in which his given name and patronymic would be written in their original form on both the NORP and NORP pages . In his submissions he emphasised , inter alia , that he belonged to the NORP minority and that consequently , under LAW of LAW , he was entitled to use the original , NORP form of his name . According to the applicant , when entering his given name and patronymic on page CARDINAL of the passport , the authorities would have been entitled to transliterate them into the NORP alphabet , but they had not been entitled to replace them with NORP equivalents .

After adversarial proceedings , ORG dismissed the appeal as unfounded . The judgment noted that the disputed passport had been drawn up in compliance with ORG , which stated that the holder 's personal data were to appear “ in NORP and in NORP ” . Finally , the court pointed out that page CARDINAL of the passport had been drawn up in NORP , and that all the elements of the applicant 's name appeared on it in their original form ; accordingly , there had been no violation of the applicant 's fundamental rights .

The applicant appealed against this judgment to ORG which , in a judgment of DATE , also dismissed his appeal . In ORG opinion , the provision by which the holder 's personal data were to appear “ in NORP and in NORP ” indeed meant that the given name , patronymic and surname were “ to comply with the requirements of the NORP language , in application of the rules governing literary translation ” . Like ORG , ORG added that there had been no violation of the right to the integrity of one 's name in the present case , since all the entries on page CARDINAL of the passport had been in NORP .

As with his external passport , the applicant made several applications to the prosecution service and the President of ORG for a supervisory review of the final decision . These appeals were all dismissed .

The relevant parts of LAW provide :

“ The official language in GPE is GPE .

The ORG ensures the comprehensive development and functioning of the NORP language in all spheres of social life throughout the entire territory of GPE .

In GPE , the free development , use and protection of NORP , and other languages of the national minorities of GPE , is guaranteed ... ”

Section CARDINAL of the PERSON provides :

“ Every NORP citizen is entitled to have a surname , given name and patronymic [ corresponding to his or her national origin ] .

ORG are entitled , in accordance with the rules in force , to revert to their [ original ] surname , given name and patronymic .

ORG whose ethnic tradition does not involve the use of a ' patronymic ' [ po - bat'kovi ] are entitled to indicate only their surname and given name in [ the ] documents ; their birth certificate [ may ] indicate the surnames of the father and of the mother . ”

NORP citizens normally have CARDINAL passports , each of which has a distinct function . The internal passport ( also called the “ NORP citizen 's passport ” ) is the basic identity document , proving the holder 's identity in all administrative and socio - economic relations throughout the country . In contrast , the external passport is a travel document for use abroad .

The relevant provisions of Parliamentary Order no . CARDINAL of CARDINAL DATE concerning the passports of NORP citizens ( ORG “ Про паспорт громадянина України ” ) read as follows :

“ ... CARDINAL . All the entries contained in the passport and all the information concerning its holder shall be made in GPE and NORP .... ”

“ ... CARDINAL . An exchange of passports shall be conducted in case of :

A change ( replacement ) [ зміни ( переміни ) ] of surname , given name or patronymic ... ”

[ Annex ]

Description of the NORP citizen 's passport

“ ... On the upper section of page CARDINAL of the passport , [ there is ] a space for the holder 's identity photograph .... Lower down , the surname , given name and patronymic ... [ are ] in GPE ...

On page CARDINAL of the passport – the surname , given name and patronymic ... [ are ] in LANGUAGE ... ”

According to LAW no . CARDINAL of DATE on the preparation and issue of NORP citizens ' passports for travel abroad and travel documents for children , their temporary seizure and confiscation ( PERSON оформлення і видачі паспортів громадянина GPE для виїзду за кордон і проїзних документів дитини , їх тимчасового затримання та вилучення ) , external passports are to be drawn up in GPE and LANGUAGE .

The technical arrangements for the issue of passports are set out in ministerial orders or instructions . In particular , in accordance with the Minister of the ORG 's instruction no . CARDINAL of CARDINAL DATE on the passports of NORP citizens , the passport holder must sign both the passport application form and the passport itself , thus confirming the accuracy of the information appearing in them .

A Regulation concerning the procedure for examining applications for a change of surname , given name or patronymic from citizens of GPE was approved by ORG on DATE .

According to that ORG , any citizen of GPE who has reached the age of DATE can apply for a full or partial change of name to the civil status registration department responsible for the district in which the individual resides . The applicant must pay a fee and provide a birth certificate and photograph and , if he or she is married and has children , the marriage certificate and the birth certificates of the children .

The civil status registration department verifies the documents and their archived records and sends the file to the local police department . Within DATE , the latter shall make the necessary checks of the person 's identity in order to prevent abuse of the procedure by people fleeing from justice , avoiding the payment of child maintenance , or pursuing other fraudulent purposes . The case file is then returned to the civil status registration department together with an opinion on the question of the proposed change of name . In case of police objections or if the applicant is under criminal investigation , on trial or convicted , the civil status department will refuse the application . This refusal can be challenged in the courts .

The whole procedure should normally take DATE , unless there is a need to restore some lost archive documents concerning the civil status of the applicant .

If the application for a change of name is granted , the individual must change the official documents , like the passport , within DATE .

ORG Framework Convention for ORG was opened for signature on DATE and entered into force in respect of GPE on DATE . LAW provides as follows :

“ The Parties undertake to recognise that every person belonging to a national minority has the right to use his or her surname ( patronymic ) and first names in the minority language and the right to the official recognition of them , according to modalities provided for in their legal system . ”

Paragraph CARDINAL of the explanatory report to LAW states :

“ In view of the practical implications of this obligation , the provision is worded in such a way as to enable Parties to apply it in the light of their own particular circumstances . For example , Parties may use the alphabet of their official language to write the name(s ) of a person belonging to a national minority in its phonetic form . Persons who have been forced to give up their original name(s ) , or whose name(s ) has ( have ) been changed by force , should be entitled to revert to it ( them ) , subject of course to exceptions in the case of abuse of rights and changes of name(s ) for fraudulent purposes . It is understood that the legal systems of the Parties will , in this respect , meet international principles concerning the protection of national minorities . ”