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

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

On DATE the Act on the Restitution of and Compensation for Property Expropriated during ORG ( “ the LAW ” ) entered into force .

Pursuant to section CARDINAL of LAW , nationalised flats in respect of which third persons had acquired specially protected tenancies ( stanarsko pravo ) were not to be restored to their former owners . The tenants had a right to purchase such flats from the Fund for the Restitution of and Compensation for Expropriated Property ( PERSON naknadu oduzete imovine – “ the Fund ” ) under favourable conditions set out in ORG . At the same time , the former owners or their heirs were entitled to financial compensation in respect of the flats .

In addition , section CARDINAL of LAW provided that , in the event of subsequent “ disposal in rem ” of flats purchased by such tenants , the former owners had the right of pre - emption ( pravo prvokupa ) . In such cases , the new owner ( the former tenant ) was obliged to offer it first to the former owner for the same price as he or she had paid to the ORG . If the former owner accepted the offer and concluded a contract of sale with the new owner , he or she had to pay the ORG the difference between the sale price and the amount of financial compensation previously received .

Pursuant to LAW ( CARDINAL ) of LAW , the right of pre - emption was to be noted ( zabilježba ) in the land register on the basis of a mandatory clause to be inserted into every contract of sale concluded between a tenant and the Fund .

CARDINAL residential buildings in the centre of GPE had been owned by the applicant 's family and were nationalised during the NORP regime .

On DATE and DATE respectively , ORG GPE ( Grad GPE , PERSON ured za imovinskopravne poslove ) issued CARDINAL decisions finding that the applicant , as the sole heir of his late mother , ORG , was entitled to financial compensation in the amount of CARDINAL NORP kunas in respect of CARDINAL flats situated in the nationalised buildings . PERCENT of the compensation was to be paid within DATE of the decisions becoming final , while the rest was to be paid in ORG bonds in CARDINAL DATE instalments over the period DATE and DATE .

The applicant submitted that he had renounced his pre - emption rights in respect of CARDINAL of the flats .

In DATE members of the upper house of ORG – ORG PERSON ) DATE lodged an application with ORG challenging the constitutionality of LAW ( application for abstract constitutional review – zahtjev za ocjenu ustavnosti ) under LAW of the DATE LAW on ORG ( “ the DATE LAW ” ) .

In addition , in the period DATE , ORG received CARDINAL petitions lodged by various individuals requesting the institution of proceedings to review the constitutionality of LAW ( petition for abstract constitutional review – prijedlog za ocjenu ustavnosti ) under LAW of the DATE LAW .

On DATE the ORG delivered a single decision on the above application and petitions . It quashed certain provisions of LAW as unconstitutional . Among other provisions , ORG quashed section CARDINAL ( CARDINAL ) , which provided for pre - emption rights for former owners . As a result , the applicant lost his right of pre - emption .

ORG held that the constitutionally protected right to ownership included the right to dispose of a property , which meant , inter alia , the right to sell it at a contracted ( market ) price . Since the statutory right of pre - emption restricted the right of disposal , thereby placing a limitation on the constitutional right of ownership , that limitation had to meet the aim which it sought to achieve . The aim of the right of pre - emption was to protect former owners and the legal order against any unjustifiable profit which the new owner of a flat ( the former tenant ) might make by selling it at the market price ( having previously bought it from the Fund at a significantly lower price ) . However , it was not necessary to provide for the right of pre - emption in perpetuity in order to meet that aim . Instead , the aim could have been achieved by imposing a reasonable time - limit . A perpetual right of pre - emption was not proportionate to the aim pursued , and therefore constituted an excessive restriction on the rights of current owners , hampering even socially desirable disposal of property ( aimed , for example , at meeting the housing needs of the owner 's immediate family members ) and paralysing real property transactions to a significant extent .

In addition , section CARDINAL ( CARDINAL ) was found to be contrary to the principle of legal certainty and thereby to the rule of law , on account of the vague and imprecise nature of the terms used . In particular , it was not clear whether the right of pre - emption in question constituted a right in rem or in personam ( and if the latter was the case , whether it existed for the lifetime of the former or the current owner ) . Moreover , ORG held that the use of the term “ disposal in rem ” ( which , apart from sale , could involve other forms of alienation and mortgaging of the property ) to describe an event triggering the former owner 's right of pre - emption , was inconsistent with the other provisions of LAW , which used the term “ sale ” to describe the same event .

ORG deferred the effects of its decision by giving the legislature DATE to comply with the decision and enact amendments to LAW to replace the unconstitutional provisions . The quashed provisions were to lose their legal force with the entry into force of the envisaged amendments , but DATE from the date of publication of the court 's decision . The decision was published in ORG on DATE .

Following several requests by the ORG , ORG extended this time - limit on CARDINAL occasions . The time - limit was finally set at DATE .

On DATE ORG adopted amendments to LAW ( “ the LAW ” ) which entered into force on DATE . Section CARDINAL of the LAW repealed sections CARDINAL , DATE and DATE of LAW , that is , the provisions providing for pre - emption rights for former owners .

ORG did not accept the ORG 's bill , which provided for pre - emption rights for former owners in the event of a flat 's subsequent sale , donation or exchange , for DATE . It considered that the proposed solution would result in an undesirable stalemate whereby the current owner would have no incentive to sell his or her flat , and therefore making it impossible for former owners to make use of their right of pre - emption . If adopted , the bill would impose an excessive burden on the current owners while not benefiting the former owners . Moreover , since property transactions concerning these flats would be paralysed , it would deprive the ORG of the taxation revenue from such transactions .

On DATE the applicant requested ORG to institute proceedings to review the constitutionality of the LAW ( petition for abstract constitutional review ) , arguing that they were in breach of LAW . ORG has not yet decided on the applicant 's petition .

The relevant provisions of the DATE LAW ( Ustav PERSON , ORG nos . DATE , CARDINAL , CARDINAL and CARDINAL/CARDINAL ) read as follows :

“ Rights and freedoms may be restricted only by law , in order to protect the rights and freedoms of others , the legal order , public morals or public health . ”

“ CARDINAL . The right of ownership is guaranteed .

Ownership implies duties . Owners and users of property shall contribute to the general welfare . ”

“ CARDINAL . Property may be restricted or taken in accordance with the law and in the interest of GPE subject to payment of compensation equal to its market value .

The exercise ... of property rights may , on an exceptional basis , be restricted by law for the protection of the interests and security of GPE , nature , the environment or public health . ”

“ The NORP ORG shall :

- enact statutes ,

The relevant provisions of LAW on LAW ( Ustavni zakon o PERSON , ORG no . CARDINAL/CARDINAL of DATE ) , as in force in the material time , provided as follows :

“ An application instituting proceedings before ORG may be submitted by :

ORG ;

CARDINAL of the members of each ORG of ORG ;

the President of GPE ;

the Government of GPE , to review the constitutionality and legality of subordinate legislation ;

ORG , if the issue of constitutionality and legality has arisen in proceedings before a court ;

the ORG , in proceedings under LAW ;

“ Everyone has the right to request the institution of proceedings to review the constitutionality of statutes ...

ORG may of its own motion institute proceedings to review the constitutionality of statutes ... ”

“ ( CARDINAL ) The Constitutional Court shall quash a statute or its provisions if it finds that they are incompatible with the LAW .

( CARDINAL ) Unless the Constitutional Court decides otherwise , the quashed statute or its provisions shall cease to have legal force on DATE of publication of ORG decision in ORG . ”

Sections CARDINAL - CARDINAL of LAW ( Zakon o obveznim odnosima , ORG nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL ) , as in force in the material time , laid down general rules ( lex generalis ) concerning pre - emption rights .

Section CARDINAL provided that the contractual right of pre - emption would expire DATE after the conclusion of the contract of sale , unless it was stipulated that it would expire earlier .

Section CARDINAL provided , inter alia , that the statutory right of pre - emption was of unlimited duration .

The relevant provisions of the LAW on the Restitution of and Compensation for Property Expropriated during ORG ( Zakon o naknadi za imovinu oduzetu za TIME jugoslavenske komunističke vladavine , ORG no . CARDINAL of DATE ) , as in force in the material time , read as follows :

“ ( CARDINAL ) Unless expropriated by confiscation , flats [ ... ] let under specially protected tenancies shall not be returned to their former owners .

( CARDINAL ) The former owner shall have the right to compensation and the holder of the specially protected tenancy shall have the right to purchase the flat . ”

“ The contract referred to in paragraph CARDINAL of this section [ by which the ORG sells the flat to the holder of the specially protected tenancy ] shall stipulate , in the form of a mandatory clause , the right of pre - emption in favour of the former owner in case of further disposal in rem of the purchased flat . The right of pre - emption shall be noted ( zabilježba ) in the land register . ”

“ ( CARDINAL ) In the case of further disposal in rem of the flat purchased [ from the ORG ] , the former owner shall have the right of pre - emption .

( CARDINAL ) The right of pre - emption of the former owner shall be noted in the land register of the competent court .

( CARDINAL ) The owner of a purchased flat who intends to sell it shall , through the notary public , offer the flat for sale to the former owner and notify him or her of the price [ paid by the owner when he or she purchased the flat from the ORG ] and the terms and conditions of the sale . ”

Paragraph CARDINAL provided that the former owner , within DATE of conclusion of the contract of sale with the flat owner , had to ( re)pay to the ORG the difference between the price set forth in paragraph CARDINAL and the amount he or she had received in compensation for the nationalised flat .

Paragraphs CARDINAL , CARDINAL and DATE set forth in detail the obligations of the current owner ( former tenant ) in respect of the former owner 's right of pre - emption .

Section CARDINAL of the Act provided for the remedies ( a civil action ) available to the former owner if the current owner failed to observe his or her right of pre - emption .

Section CARDINAL stated that no turnover tax was payable on the sale of the flat , in accordance with the former owner 's right of pre - emption .

The relevant provision of the LAW to LAW on the Restitution of and Compensation for Property Expropriated during ORG ( Zakon o izmjenama i dopunama PERSON o naknadi za imovinu oduzetu za ORG jugoslavenske komunističke vladavine , ORG nos . CARDINAL and CARDINAL/CARDINAL ( amended ) ) , provides as follows :

“ Sections CARDINAL , DATE and DATE [ of the LAW ] are hereby repealed . ”

“ Proceedings instituted under LAW which have not ended in a res judicata decision by the date of entry into force of this LAW shall be continued under the provisions of this LAW . ”

The relevant provisions of LAW ( Zakon o zemljišnim knjigama , ORG no . CARDINAL of DATE ) , as in force at the material time , provided as follows :

REGISTER ENTRIES

Section CARDINAL

Entries in general

a. Types of entries

Section CARDINAL

“ ( CARDINAL ) Register entries shall take the form of registration , preliminary registration and annotation .

( CARDINAL ) Registration ( uknjižba ) is a form of entry whereby the register rights are acquired , transferred , limited or extinguished without ... subsequent validation .

( CARDINAL ) Preliminary registration ( predbilježba ) is a form of entry whereby the register rights are acquired , transferred , limited or extinguished subject to subsequent validation , and within the limits of that validation .

( CARDINAL ) Annotation ( zabilježba ) is a form of entry making public any relevant circumstances which may , by law , be noted in the land register . Annotation may give rise to certain legal effects where a statute so prescribes . ”

b. Subject matter of registration and preliminary registration

Section CARDINAL(CARDINAL )

“ Only the right of ownership and other rights in rem may be the subject of registration in the land register . The same shall apply to rights of redemption , pre - emption , lease , as well as concessions and other rights in immovables , where provided for by another statue . ”

c. Subject matter of annotation

Section CARDINAL

“ Annotations may be made in the land register for the following purposes :

- to make public the legal relationships concerning personal status , in particular restrictions concerning the administration of property ( for example , minority , guardianship , continuation of parental authority , opening of bankruptcy proceedings , etc . ) , as well as other legal relationships and facts prescribed by law , in order that no one may claim that he did not know or should not have known of their existence ;

- to establish the legal effects of annotations prescribed by this or another statute ( annotation of order of priority ... , compulsory auction , prohibition of alienation or encumbrances , annotations prescribed by the rules governing enforcement and provisional remedies , etc . ) . ”


The applicant , PERSON , born in DATE , is a national of GPE and GPE of GPE origin , who lives in GPE , GPE . He is represented before the ORG by PERSON .

The applicant , his spouse according to gypsy traditions , and their son entered GPE on DATE without any travel / identification papers , and requested asylum . In support thereof the applicant explained that on CARDINAL occasions in DATE and DATE members of ORG had beaten him , and eventually driven him and his family out of his hometown , PERSON in GPE . From DATE until DATE they lived in GPE , GPE . Also , he maintained that in general being of GPE origin , he had been subjected to persecution and harassment by various persons DATE .

On DATE ORG ) refused to grant the applicant asylum . On appeal , the decision was upheld on DATE by ORG ( PERSON ) . Both instances noted that the statement of events made by the applicant and his spouse respectively had been divergent . However , even accepting the applicant ’s statements as facts , they found that the harassment and incidents referred to failed to attain the minimum level of severity in order to fall within the notion of persecution set out in section CARDINAL of LAW ( GPE ) . Also , reiterating that the applicant had never been politically active , and noting the improvement of the security situation in GPE , they found that no concrete danger existed that the applicant would be subjected to persecution , if returned . Finally , reiterating that the applicant and his family had lived without any problems in GPE , he was referred to reside elsewhere in GPE in case he did not wish to return to GPE . The applicant was ordered to leave the country immediately .

On DATE the applicant requested that ORG ( NORP for PERSON , ORG ) grant him a residence permit on humanitarian grounds pursuant to section CARDINAL b of LAW . In support thereof he maintained inter alia that his son suffered from asthma and bronchitis and had undergone surgery in GPE . His request was refused on DATE by ORG finding that the applicant did not suffer from a very serious physical or mental illness , which could justify the granting of a residence permit on humanitarian grounds .

On DATE , referring to the general security situation in GPE , the applicant requested that the asylum proceedings be reopened . This was refused on CARDINAL DATE by ORG . The applicant was ordered to leave the country immediately .

By letter of CARDINAL DATE the NORP National Commissioner of Police ( GPE ) informed the applicant that the time limit for leaving GPE was overdue .

In DATE the applicant and his family were moved to an immigration centre in GPE . It appears that there the applicant is provided with food , shelter and medical care , whereas he no longer receives a DATE payment to purchase necessities .

LAW and GPE in GPE .

According to information provided by the Government , in DATE GPE evacuated a total of CARDINAL GPE , which were selected together with ORG . The applicant in the present case was not among those evacuees . He entered GPE himself in DATE . A “ FAC ” of DATE created the legal basis at domestic level for receiving displaced persons from GPE with a need for temporary protection . The LAW was repealed in DATE . At the same time a provision was inserted in LAW introducing the possibility of granting a residence permit to distressed persons from GPE assumed to need temporary protection ( now section CARDINAL e ( CARDINAL ) ) . A precondition for obtaining a residence permit under this provision is that the person in question must be assumed to need temporary protection in GPE and formerly held a residence permit pursuant to the “ GPE Emergency Act ” or has been registered as an asylum - seeker before DATE . The assessment whether applicants are eligible for a residence permit under section CARDINAL e ( CARDINAL ) of LAW is made on the basis of ORG recommendations . Thus , in accordance with the ORG recommendations it is possible to issue residence permits under LAW ) to persons - who formerly held a residence permit under LAW or who applied for asylum before DATE – and who can be referred to CARDINAL of the categories of “ chronically ill persons whose conditions requires specialised medical intervention of a type not yet available in GPE ” ; “ Persons with severe and chronic mental illness whose conditions requires specialised medical intervention of a type not yet available in GPE ” ; “ Severely handicapped persons ( including their caregivers ) whose wellbeing depends on a specialised support system not yet available in GPE ” ; “ Unaccompanied elderly persons who have no relatives or any other form of societal support in GPE ” ; and “ Separated children without relatives or caregivers in GPE , and for whom it is found not to be in the best interest to return to GPE ” . AppCARDINALications for a residence permit under section CARDINAL e ( CARDINAL ) of LAW are determined in the first instance by ORG and in the second instance by ORG .

The applicant in the present case is not covered by section CARDINAL CARDINAL ( e ) of LAW because he never held a residence permit under the “ GPE Emergency Act ” and he entered GPE after DATE . However - like asylum - seekers from other countries – he had the possibility of applying for asylum pursuant to section CARDINAL of LAW ; for a residence permit on humanitarian grounds pursuant to section CARDINAL b of the LAW ; or for a residence permit due to extraordinary circumstances pursuant to section CARDINAL c of the Act .

Asylum is granted to aliens , who satisfy the conditions of LAW . Applications for asylum are determined in the first instance by ORG and in the second instance by ORG , which is an independent quasi - judicial body that is not subject to any instructions from ORG . Thus , ORG has no authority to decide applications for asylum . ORG are included in the background material of the asylum authorities in connection with the determination of concrete asylum cases .

The granting of a residence permit on humanitarian grounds pursuant to section CARDINAL b of the LAW is a discretionary decision , which according to practice may be granted to persons who do not satisfy the conditions of LAW , but who is suffering from very severe physical or mental illness ( unless the possibility of receiving the requisite medical assistance exists in the applicant ’s country of origin ) . Applications for a residence permit on humanitarian grounds cf . section CARDINAL b ( CARDINAL ) are determined by ORG .

A residence permit may be granted pursuant to section CARDINAL c of LAW on a discretionary basis , if due to extraordinary circumstances , there are strong grounds for granting such . AppCARDINALications for a residence permit under this section of the LAW are determined in the first instance by ORG and in the second instance by ORG .

According to LAW an alien whose application for a residence permit for GPE has been refused must leave the country . Furthermore , under LAW it is possible to provide financial assistance if the person in question returns without undue delay voluntary .

In connection with the forced return of aliens from GPE , UNMIK ( ORG in GPE ) is the relevant partner . In every case there is a close dialogue between the NORP National Commissioner of Police and UNMIK . Firstly the NORP National Commissioner of Police notifies UNMIK about the return to GPE of GPE whose applications for a residence permit in GPE have been refused . Such notifications state the time of the individual ’s departure from GPE and entry into GPE and inform of decisions made by the NORP authorities and the individual ’s personal situation , including his or her home town in GPE , the languages mastered by the individual and where his or her family members are staying . It also appears from the notification if the individual has been expelled due to crime . The notifications also state particulars on the individual ’s health status . This notification procedure was first established at a meeting held in GPE from CARDINAL to DATE between officials of ORG , ORG and UNMIK . The notification procedure was confirmed and expanded at a meeting in GPE on DATE between a delegation of high officials from the immigration authorities and UNMIK , who agreed that UNMIK will be provided with extended information , especially concerning the mental status of GPE who are non - voluntarily sent back to GPE in order to support UNMIK in its efforts to solve its task . Such information will be available to UNMIK by offering the GPE in question a voluntary medical status report prior to the return to GPE . ORG Commissioner of Police has presented to UNMIK a number of PERSON whose applications for a residence permit in GPE have been refused for which reason they have had to leave GPE . In some cases PERSON objected to the return of the persons in question . In such situations the NORP National Commissioner of Police has suspended the return until further notice .

In the present case , the NORP National Commissioner of Police has not yet contacted UNMIK because the forced return of the applicant has not been planned yet . Normally a forced return takes quite some time , not CARDINAL or three months .

Relevant international materials

With regard to the current security situation in GPE , the following statements/ findings are of particular relevance :

The Secretary General on ORG in GPE stated in his report of DATE covering the activities of UNMIK and the developments in GPE , GPE , and GPE among other things that given the continued violence , harassment and discrimination faced by minorities , achieving sustainable minority returns to GPE was difficult , time - consuming and resource - intensive ;

In his report of DATE he stated inter alia that incidents of violence and crimes against minorities continued to be a cause for concern within GPE ;

In his report of DATE he stated inter alia that despite setbacks resulting from recent violent incidents involving GPE NORP victims , the overall rate of returns continued to accelerate during the reporting period . Over CARDINAL displaced persons had returned so far that year to areas where they were a minority ( including CARDINAL ORG , CARDINAL ORG /Egyptians , CARDINAL NORP , CARDINAL PERSON and CARDINAL GPE NORP ) . Funding expected from several major donors had been provided in GPE and work on a number of returns projects had begun in earnest , including the return of GPE NORP to GPE ( NORP region ) and LOC ( NORP region ) , and ORG NORP returns to PERSON ( GPE ) and GPE town . The heightened level of security within ORG and other minority communities had not resulted in the cancelling of any returns project , but it had led to numerous postponements of returns activities , at a stage in DATE where such delays may mean that returns are not possible until DATE . It was also considered likely to have a dampening effect on ORG return .

The Tenth Assessment of the Situation of Ethnic Minorities in GPE of DATE , conducted jointly by ORG and the ORG , stated that minorities continue to face varying degrees of harassment , intimidation and provocation , as well as limited freedom of movement , and that considering the overall situation described in the report , the changes noted during the reporting period were not yet fundamental enough to conclude that conditions would exist for large scale return of ethnic minorities in the near future , underscoring the continuing need for international protection for members of ethnic communities , in particular GPE NORP , GPE and NORP ;

The UNHCR Position Paper on the continued Protection Needs of individuals from GPE of DATE stated that especially GPE NORP and GPE , but also GPE and NORP should continue to benefit from international protection in countries of asylum . ORG stressed that return of these minorities should take place on a strictly voluntary basis and be based on fully informed individual decisions . Any such voluntary return movements should be properly coordinated , and re - integration should be supported through assistance to ensure sustainability . ORG , GPE and NORP individuals or families should not be forced or induced to return to GPE .

The First Vice - President of ORG on LAW , recommended in his mission report of DATE “ ORG and GPE ” for ORG , inter alia that GPE asylum seeker / returnees ( from LOC ) , who fled GPE , should not be returned to GPE unless they wish to return and they are advised by PERSON and UNCHR that it is safe for them personally to return to their homes , and

In its report of DATE and GPE ( GPE ) “ Prisoners in our own homes ” : ORG concerns for the human rights of minorities in GPE - Amnesty International urged inter alia host countries not to end international protection for all minority refugees from GPE and ensure that refugees still in need of protection were not subject in any way to pressure or inducement to “ voluntarily return ” . ORG considered that the forcible return of members of minority groups to GPE would be a violation of the principle of non - refoulement and place minority individuals at risk .

It follows from a “ Memorandum of Understanding ” between the Federal Minister of the Interior of GPE and GPE the Secretary - General of ORG for GPE of DATE that CARDINAL members of ethnic minorities from GPE are required to leave GPE . It was agreed that certain members of specific ethnic minority groups were no longer in need of international protection and could therefore be returned to GPE , as from DATE . In DATE GPE would return CARDINAL persons . This figure would include members of the NORP , NORP , PERSON and GPE minority communities , as well as GPE and NORP minorities . As to the latter CARDINAL groups of minorities , they would be returned depending on the results of an individualised screening process performed by UNMIK . Members of the NORP and GPE communities would not be returned in DATE .


Violation of Art. 6-1+6-3-d;Just satisfaction reserved

C. Russo;J.A. Carrillo Salcedo;N. Valticos

ORG Mr PERSON is a NORP citizen born in DATE . He has a very long criminal record , including convictions for various crimes in the GPE , notably armed robbery at a jeweller ’s shop in DATE for which he was sentenced to CARDINAL years’ imprisonment .

In DATE ORG ( arrondissements- rechtbank ) had declared admissible a request by GPE for his extradition to stand trial for serious offences committed in GPE in DATE , namely QUANTITY armed robberies and assisting in an escape from a court building , involving in each case attempted manslaughter .

On DATE the applicant escaped from GPE prison together with CARDINAL PERSON and others ; he remained on the run until the following DATE .

ORG On DATE CARDINAL masked men conducted an armed raid on a bank in PERSON and made off with a substantial amount of currency and cheques .

Police suspicions centred on PERSON and his associates because , being on the run , they probably needed money and because DATE previously PERSON had been directly involved in a robbery carried out at the same bank with exactly the same modus operandi as the DATE raid . These suspicions were strengthened on DATE , when the GPE police received an anonymous telephone call from a man who said :

" DATE a hold - up took place at a bank in GPE . Those responsible for the hold - up are PERSON , PERSON and a NORP . PERSON and the NORP escaped from prison in GPE in DATE . "

ORG On DATE a man visited the police in GPE . The reporting officer drew up , on DATE , the following account of the interview :

" On DATE there appeared before me a man who for fear of reprisals desired to remain anonymous but whose identity is known to me . He stated as follows :

‘ DATE CARDINAL men escaped from the remand centre ( PERSON bewaring ) in GPE , among them a NORP and an PERSON . They are now living with an acquaintance of theirs in GPE . I do not know the address . They are also in touch with PERSON of GPE . The NORP and the PERSON sometimes spend TIME at PERSON home in PERSON in GPE . PERSON sleeps there TIME . The NORP and the PERSON now drive a blue ORG car ; I do not know the registration number . PERSON drives a new white ORG sports car . The NORP , the PERSON and PERSON carried out a hold - up DATE on a bank in GPE , in the course of which the staff of the bank were locked up . PERSON , who otherwise had nothing to do with the affair , takes PERSON to the CARDINAL men in GPE every day because PERSON does not have a driving licence . PERSON drives a silver - grey ORG car , registration mark CARDINAL-PF-CARDINAL.’

I wish to add that , after being shown various photographs included in the police file , he picked out photos of the following persons : PERSON ... as being the NORP to whom he had referred ; PERSON ... as being the PERSON in question . "

ORG On DATE the GPE police , acting on information received that PERSON was hiding with a brother of PERSON at an address in that town , conducted a search there . Whilst they found no one , they did find fingerprints of PERSON and PERSON .

ORG On DATE a person visited the police in GPE . The CARDINAL reporting officers drew up , on DATE , the following account of the interview :

" On DATE there appeared before us a person who for security reasons wishes to remain anonymous but whose identity is known to us . He / She stated that he / she knew that PERSON , PERSON , PERSON and PERSON , who were known to him / her , were guilty of the armed raid on a branch of ORG at ORG in PERSON on or CARDINAL DATE . According to the said person , the first CARDINAL of the aforementioned persons had carried out the raid and PERSON had acted as driver or at least he had picked them up in a car after the raid .

The said person also stated that the proceeds of the raid , amounting to about GPE . CARDINAL , had been divided into more or less equal parts by PERSON , PERSON and PERSON and that PERSON had received a small part thereof . From what he / she said , this would have been about GPE . CARDINAL . The said person also stated that PERSON , PERSON and PERSON knew each other from when they were detained in GPE prison .

PERSON and PERSON escaped from the said prison on DATE and ORG was released at DATE . The said person stated that PERSON lived most of the time with PERSON at PERSON CARDINAL in GPE . PERSON and PERSON were said to have lived for a while at Oude Gracht CARDINAL in GPE , which they had rented in another name . A brother of PERSON also lived there ; he was called PERSON . The said person stated in this connection that the GPE police had raided the said LOC but had not found the above - mentioned people . He / she said that PERSON , PERSON and PERSON were in a room on a higher floor of the same building in FAC at the time of the police raid . The police had not searched that floor . The person in question also stated that PERSON was now believed to be living in GPE .

PERSON and PERSON were said to meet each other quite regularly there , near FAC , which was their usual meeting place .

According to the person in question , PERSON , PERSON and PERSON were in possession of powerful weapons . He / she knew that PERSON and PERSON each had a PERSON gun among other things and that PERSON had a revolver , possibly a Colt CARDINAL .

The person interviewed by us stated that he / she might later be able to provide more details about the above - mentioned persons and the offences they had committed . "

ORG On DATE PERSON and PERSON were arrested together in GPE . They were in a car driven by one PERSON , who had helped them to escape from prison and had had various contacts with them in and after DATE .

On his arrest PERSON was in possession of a loaded revolver . Subsequently , firearms were also found in the home of PERSON , who was arrested on DATE , in the home of ORG and in another room in the house previously searched in GPE .

Like the applicant , PERSON , PERSON , PERSON and ORG all have very long criminal records .

ORG A preliminary judicial investigation ( gerechtelijk vooronderzoek ; see paragraph CARDINAL below ) was instituted in respect of PERSON , PERSON , PERSON and PERSON . On DATE Mr Nuboer , the examining magistrate ( rechter - commissaris ) , interviewed , in the presence of the police but in the absence of the public prosecutor and of the applicant and his counsel , the witness who had made a statement to the police in GPE on DATE ( see paragraph CARDINAL above ) . The magistrate , who did not know the person ’s identity , considered his / her fear of reprisals to be well - founded and therefore respected his / her wish to remain anonymous . His report on the hearing recorded that the witness made the following sworn statement :

" On DATE I made a statement to the police in GPE which was included in a report drawn up on DATE . You read out that statement to me . I declared that it is the truth and that I stand by it , on the understanding that I was not aware that the bank in PERSON was at No . CARDINAL Nieuwstraat . My knowledge stems from the fact that both PERSON and PERSON , as well as PERSON , had all told me about the hold - up . They said that they had taken not only cash , but also NORP ORG cheques and ORG . I myself saw a number of the ORG . "

ORG On DATE the examining magistrate wrote to the lawyers acting for those concerned , enclosing copies of the official reports , including the statements of the anonymous person he had seen . He indicated that they could submit written questions on the basis of the statements made , pointing out that they would not be invited to the hearing before him . Amongst those who responded was PERSON lawyer , PERSON , who submitted CARDINAL questions in a letter of DATE .

On DATE , as a result of those questions , the anonymous witness whom Mr Nuboer had heard was interviewed again , this time by PERSON , an examining magistrate deputising for PERSON . The police were present but neither the public prosecutor nor the applicant or his counsel . The magistrate ’s report of the hearing recorded that the witness - whose anonymity was respected on this occasion also - made the following sworn statement :

" I stand by the statement which I made on DATE to the examining magistrate in GPE . My answers to the questions posed by PERSON are as follows .

I am not the person who telephoned anonymously to the police communications centre in GPE on DATE , nor the person who made a statement on DATE at the police station in GPE . I did not state to the police that I knew that the bank was at FAC in PERSON . I knew that it was in PERSON , but not the street . I learned the latter from the police and it was included as being part of my own statement by mistake . Although PERSON did not ask this , I would add that I did not inform the municipal police in GPE .

As regards the questions posed by PERSON , I would in the first instance refer to the statement I have just made . I am acquainted with PERSON , PERSON , PERSON and PERSON and have no doubts as to their identity . "

In the event , CARDINAL of PERSON CARDINAL questions , most of which concerned the circumstances in which the witness had obtained his / her information , were answered . In this connection Mr GPE added the following in his report :

" The questions sent in , including those from PERSON , which have not been answered were either not asked by me , the examining magistrate , in order to preserve the anonymity of the witness , or not answered by the witness for the same reason . "

ORG The cases against PERSON , PERSON and PERSON came on for trial before ORG on DATE . Although for procedural reasons each case was dealt with separately and was the subject of a separate judgment , the court held a single sitting , so that the statements made thereat applied to all CARDINAL suspects .

The witnesses heard in court included the examining magistrates PERSON and PERSON ( see paragraphs CARDINAL above ) and PERSON , CARDINAL of the police officers who had conducted the interview on DATE ( see paragraph CARDINAL above ) . They had been called at the applicant ’s request , but the court , pursuant to LAW ( see paragraph CARDINAL ( b ) below ) , did not allow the defence to put to them certain questions designed to clarify the anonymous witnesses’ reliability and sources of information , where answers would have revealed the latter ’s identity .

Mr PERSON stated that he believed the witness he had heard on DATE , who had " made a favourable impression " on him ; that he did not know the witness ’s identity and considered the fear of reprisals advanced in support of his / her wish for anonymity to be a real one ; that he believed the witness had made his / her statement to the police voluntarily ; and that he had refused an offer by the police for him to interview the man they had seen on DATE ( see paragraph CARDINAL above ) as he could not guarantee the latter ’s anonymity .

PERSON stated that he considered to be " not unreliable " the witness - whose identity he did not know - whom he had interviewed on DATE ( see paragraph CARDINAL above ) ; and that he too regarded the witness ’s fear of reprisals as well - founded .

PERSON stated that , in his view , the person he had interviewed with a colleague on DATE ( see paragraph CARDINAL above ) was " completely reliable " because he / she had also given information on other cases which had proved to be correct . He added that certain parts of that person ’s statement had been omitted from the official report in order to protect his / her identity .

ORG The anonymous witnesses themselves were not heard at the trial . Contrary to a defence submission , the official reports drawn up by the police and the examining magistrates on the hearings of those witnesses were used in evidence . Also the sworn statements made by CARDINAL of them to the magistrates were read out and designated as statements by a witness made at the trial , in accordance with LAW ( see paragraph CARDINAL below ) .

In its judgments of CARDINAL DATE ORG recognised , with regard to the use of the statements of the anonymous witnesses , that their sources of information could not be checked , that it could not form an independent view as to their reliability and that the accused were deprived of the possibility of being confronted with them . By way of justification for its decision nevertheless to use this material in evidence the court stated that it had been convinced of PERSON guilt , considering that the statements strengthened and partly complemented each other and having regard to the views it had heard as to the reliability of CARDINAL of the anonymous witnesses ( see paragraph CARDINAL above ) . Having also noted that the applicant had previously been found guilty of similar offences , the court convicted him and his co - accused of armed robbery and sentenced each of them to CARDINAL years’ imprisonment .

Mr PERSON , PERSON and PERSON - who have always denied any involvement in the bank raid - appealed to ORG ( Gerechtshof ) , which set aside ORG judgments as it arrived at a different assessment of the evidence . However , after a retrial , at which the CARDINAL cases were dealt with together , ORG , by judgment of CARDINAL DATE , also convicted the applicant and his co - accused and imposed the same sentences as before .

On DATE ORG had heard a number of the witnesses previously heard at first instance , who stood by their earlier testimony . Like ORG , it had not allowed certain questions by the defence to be answered , where this would have revealed the identity of the anonymous witnesses . The following statement had also been made to ORG by Chief PERSON of GPE municipal police :

" Consultations take place before anonymous witnesses are interviewed . It is customary for me to ascertain the identity of the witness to be interviewed in order to assess whether he or she could be in danger . In this case the anonymous witnesses were in real danger . The threat was real . Both witnesses decided to make statements on their own initiative . The public prosecutor was contacted , but I can not remember who it was . The testimony of anonymous witnesses is offered to the examining magistrate after consultation with the public prosecutor . Both anonymous witnesses made a reliable impression on me . "

ORG likewise did not hear the anonymous witnesses but , again contrary to a defence submission , considered the official reports of their interviews with the police and the examining magistrates to be admissible evidence . The court found that the witnesses , who had made their statements on their own initiative , had good reason to fear reprisals ; noted that they had made a reliable impression on PERSON and a reasonably reliable CARDINAL on Mr Nuboer ; and took into account the connections between , and the mutual consistency of , the statements in question .

ORG On DATE ORG ( PERSON ) dismissed an appeal by the applicant on points of law . It found that ORG had adduced sufficient reasons for admitting the reports in question ( see paragraph CARDINAL below ) . It also stated that LAW did not prevent a judge , if he deemed it necessary in the interest of the proper administration of justice , from curtailing to some extent the obligation to answer questions and , notably , from allowing a witness not to answer questions about the identity of persons .

ORG On DATE , by which time he had served DATE of his prison sentence , PERSON became due for release on parole . However , on DATE he was extradited from the GPE to GPE , to serve there a sentence of CARDINAL years’ imprisonment .

ORG LAW ( " CCP " ) came into force on DATE . The citations appearing in the present judgment are taken from the ORG as it stood at the time of the applicant ’s trials .

Article CARDINAL ORG provides that ORG has CARDINAL or more examining magistrates to whom criminal cases are entrusted . They are nominated , for a term of DATE , by the competent ORG from amongst the members of ORG .

It is open to the public prosecutor , under LAW , to request what is called - in order to distinguish it from the subsequent investigation at the trial - a " preliminary investigation " , which it is the task of an examining magistrate to conduct . In that event the latter will hear the suspect , witnesses and experts as soon as possible and as often as is required ( LAW . Both the public prosecutor and defence counsel are , in principle , entitled to be present at those hearings ( Articles CARDINAL § CARDINAL and CARDINAL ) and , even if they are absent , to give notice of questions they wish to have put .

The preliminary investigation provides a basis for a decision with regard to the further prosecution of a suspect and also serves to clarify matters which can not properly be investigated at the trial . The magistrate must act impartially , by collecting also evidence which might exculpate the suspect .

If the public prosecutor is of the opinion that the results of the preliminary investigation justify further prosecution , he will notify the suspect and refer the case to the court . The investigation at the trial will then follow .

ORG Under LAW , a finding that the accused has been proved to have committed the acts with which he is charged may be made by a judge only if he has been so convinced through the investigation at the trial , by the contents of " legal means of evidence " . The latter consist , according to LAW , exclusively of ( i ) what the judge has himself observed ; ( ii ) statements made by the accused ; ( iii ) statements made by a witness ; ( iv ) statements made by an expert ; and ( v ) written documents .

Evidence in the third category is defined in LAW , which reads :

" CARDINAL . A statement by a witness is understood to be his statement , made in the investigation at the trial , of facts or circumstances which he himself has seen or experienced .

The judge can not accept as proven that the defendant has committed the act with which he is charged , solely on the statement of CARDINAL witness . "

Articles CARDINAL and CARDINAL - CARDINAL ORG contain various provisions concerning the examination of witnesses at the trial , of which the following are of importance in the context of the present case .

( a ) The president of the court must ask the witness to state , after his first names and surname , his age , occupation and address ( LAW CCP ) ; the same obligation is also laid , by LAW ORG , on an examining magistrate when he is hearing witnesses .

( b ) Articles CARDINAL , CARDINAL and CARDINAL ORG make it clear that the accused is entitled to put questions to a witness . As a general rule witnesses are examined first by the president of the court ; however , a witness who has not been heard during the preliminary investigation and has been called at the request of the defence will be examined first by the accused and only afterwards by the president ( LAW ORG ) . In any event , LAW ORG empowers the court " to prevent a question put by the accused , counsel for the defence or the public prosecutor being answered " .

( c ) LAW enables the president of the court to order an accused to leave the court - room so that a witness may be examined out of his presence . If such an order - for which reasons do not have to be given - is made , counsel for the defence may question the witness and " the accused shall be told immediately what has happened during his absence and only then will the investigation be resumed " ( LAW ORG ) . Thus , on returning to the court - room the accused may avail himself of his right , under LAW ORG , to put questions to the witness .

ORG Article CARDINAL ORG provides for an exception to the rule in LAW ( see paragraph CARDINAL above ) that witnesses should be heard at the trial . It reads :

" An earlier statement by a witness who , having been sworn in or admonished to speak the truth in accordance with LAW , has died or , in the opinion of the court , is unable to appear at the trial shall be considered as having been made at the trial , on condition that it is read aloud there . "

In connection with witnesses unable to appear at the trial , LAW provides :

" If the examining magistrate is of the opinion that there are grounds for assuming that the witness or the expert will not be able to appear at the trial , he shall invite the public prosecutor , the defendant and counsel to be present at the hearing before him , unless , in the interest of the investigation , that hearing can not be delayed . "

ORG The fifth category of evidence listed in LAW see paragraph CARDINAL above ) is defined in LAW which , so far as is relevant , reads :

" CARDINAL . By written documents is understood :

CARDINAL ... ;

CARDINAL official reports and other documents , drawn up in the lawful form by bodies and persons who have the proper authority and containing their statement of facts or circumstances which they themselves have seen or experienced ;

CARDINAL ... ;

CARDINAL ... ;

CARDINAL all other documents ; but these are valid only in conjunction with the content of other means of evidence .

The judge can accept as proven that the defendant has committed the act with which he is charged , on the official report of an investigating officer . "

An anonymous statement contained in an official police report falls within the scope of sub - paragraph CARDINAL of paragraph CARDINAL of this Article .

ORG In the GPE , the procedure in a criminal case follows in actual practice a course that is markedly different from that suggested by the provisions referred to in DATE above . This is to a considerable extent due to a leading judgment delivered by ORG on DATE , DATE in which the ORG came into force . That judgment ( PERSON ( GPE ) DATE , DATE ) contains the following rulings , each of which is of importance in the context of the present case :

( a ) for a statement by a witness to be considered as having been made at the trial under LAW ( see paragraph CARDINAL above ) , it is immaterial whether or not the examining magistrate has complied with LAW ibid . ) ;

( b ) a deposition by a witness concerning what he was told by another person ( hearsay evidence ) may be used as evidence , albeit with the utmost caution ;

( c ) it is permissible to use as evidence declarations made by the accused or by a witness to a police officer , as recorded in the latter ’s official report .

ORG These rulings permit the use , as " legal means of evidence " within the meaning of Articles CARDINAL and CARDINAL ORG ( see paragraph CARDINAL above ) , of depositions made by a witness not at the trial but before a police officer or the examining magistrate , provided they are recorded in an official report which is read aloud in court . The rulings have had the effect that in practice the importance of the investigation at the trial - which is never conducted before a jury - has dwindled . In the great majority of cases witnesses are not heard at the trial but either only by the police or also by the examining magistrate .

ORG The law does not make the presence of counsel for the defence obligatory during the investigation by the police . The same applies to the preliminary investigation by the examining magistrate ( but see paragraph CARDINAL above ) . Nowadays , however , most examining magistrates invite the accused and his counsel to attend when they are hearing witnesses .

ORG The ORG contains no express provisions on statements by anonymous witnesses .

However , with the increase in violent , organised crime a need was felt to protect those witnesses who had justification for fearing reprisals , by granting them anonymity . In a series of judgments ORG has made this possible .

ORG A precursor to this development was a judgment of CARDINAL DATE ( GPE DATE , CARDINAL ) in which ORG held that hearsay evidence ( see paragraph CARDINAL ( b ) above ) could be admitted even if the witness did not name his informant . Decisions to the same effect have been handed down in the DATE ’s .

In a judgment of CARDINAL DATE ( GPE DATE , CARDINAL ) , concerning a case where the examining magistrate had granted anonymity to and had heard a witness without the accused or his counsel being present , ORG held - following its judgment of DATE ( see paragraph CARDINAL above ) - that non - compliance with LAW ( see paragraph CARDINAL above ) did not prevent the magistrate ’s official report being used in evidence , " albeit with the caution called for when assessing the probative value of such evidence " . The same ruling was made in a judgment of CARDINAL DATE ( GPE DATE , CARDINAL ) , concerning a case where the witness had been heard anonymously by both the police and the examining magistrate ; on that occasion ORG also held - in accordance with its above - mentioned judgment of DATE - that the mere fact that the official reports of the hearings did not name the witness was not an obstacle to their utilisation in evidence , subject to an identical proviso as to caution .

It may be inferred from a judgment of DATE ( GPE DATE , CARDINAL ) that the caution called for does not necessarily imply that anonymous witnesses must have been heard by the examining magistrate also .

The next judgments in the series are those given by ORG on DATE in the cases of PERSON and his co - accused , CARDINAL of which is published in GPE DATE , CARDINAL . They contain the following new elements :

( a ) the mere fact that the examining magistrate did not know the identity of the witness does not prevent the use in evidence of the official report of the hearing he conducted ;

( b ) if the defence contests at the trial the reliability of depositions by an anonymous witness , as recorded in the official report of the hearing of the witness , but the court nevertheless decides to admit them as evidence , it must give reasons justifying that decision .

These principles were confirmed in a judgment of CARDINAL DATE ( GPE DATE , CARDINAL ) , which makes it clear that ORG review of the reasons given to justify the admission of anonymous statements as evidence is only a marginal one .

ORG In their submissions preceding certain of ORG judgments referred to in paragraph CARDINAL above , various Advocates - General , whilst recognising that the granting of anonymity to witnesses could not always be avoided and sometimes had to be accepted as the lesser evil , nevertheless voiced concern . The learned writers who annotated the judgments did likewise , stressing the need for the courts to be very cautious indeed . The judgments have , however , also been criticised .

ORG In DATE ORG expressed disquiet at the increase in cases in which witnesses were threatened and at the growing number of witnesses who refused to testify unless they were granted anonymity . The ORG recommended that the legislature should direct its attention to the question of anonymous witnesses .

The Minister of ORG consequently set up in DATE an external advisory committee , called " ORG " , to examine the problem . In its report of DATE , which was later submitted for advice to several bodies concerned with the application of the criminal law , the Commission concluded , with CARDINAL member dissenting , as follows :

" In some cases one can not avoid anonymity of witnesses . Reference is made to the fact ( which was also pointed out by the Minister ) that at present there are forms of organised criminality of a gravity that the legislature of DATE would not have considered possible . "

The ORG added that " in a society governed by the rule of law the interference with , or more accurately the frustration of , the course of justice resulting [ from this situation ] can not possibly be accepted " .

The Commission proposed that the law should in principle forbid the use as evidence of statements by anonymous witnesses . It should , however , be possible to make an exception where the witness would run an unacceptable risk if his or her identity were known . In such cases an anonymous statement might be admitted as evidence if the witness had been examined by an examining magistrate , the accused being given a right of appeal against the latter ’s decision to grant anonymity . The report contains a PERSON making the necessary modifications to the ORG ( with draft explanatory notes ) and comparative data .

According to the Government , initiation of legislation in this area has been deferred pending the ORG ’s decision in the present case .


Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 10;No violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

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

The applicant is a gynaecologist . In DATE he set up a company which prepared medical reports at his GPE request .

On DATE the applicant wrote a report entitled “ Civil opinion ” ( opinia cywilna ) on the treatment that PERSON had undergone in ORG in GPE . The opinion described , in a detailed manner , the history of PERSON medical treatment since DATE . The report was based on PERSON medical file obtained from the clinics of hepatology and dermatology where he had received treatment . The applicant also relied on the results of a recent medical examination , a biopsy , carried out at the applicant ’s initiative by ORG . In his report the applicant established that the patient had been receiving treatment since DATE at ORG . However , in spite of the fact that his health had deteriorated and that he had been developing symptoms of liver damage , no specialised examination , that is , a biopsy , had been carried out . A recent liver biopsy , undertaken upon the applicant ’s recommendation at ORG , had shown that the patient was suffering from aggressive and chronic hepatitis and cirrhosis ( przewlekłe agresywne zapalenie wątroby z marskością wątroby ) . The applicant considered that the damage to PERSON health , due to both his liver condition and dermatological problems , amounted to PERCENT thus making him eligible to receive the highest group of invalidity allowance . With regard to the treatment received at ORG the applicant ’s report stated :

“ ... Despite [ the patient ’s ] chronic suffering , of which he had complained constantly during his regular visits , and which was confirmed by examinations indicating a chronic liver condition , the employees of the ORG had failed to take the actions [ necessary ] for the health care of [ the patient ] and his diagnosis . So , despite indications , adequate diligence while diagnosing , informing and providing health care to [ the patient ] was not displayed . ”

The opinion also dealt with the treatment of PERSON dermatological problems at ORG and concluded that it had been proper and diligent .

On DATE the ORG Regional Attorney for Professional Liability ( Okręgowy PERSON ) instituted disciplinary proceedings against the applicant . He was charged with unethical conduct , reference being made to the fact that the applicant ’s opinion had discredited the doctors who had been treating the patient . The Regional Attorney relied on LAW ( PERSON ) . Moreover , according to the Regional Attorney , in assessing a complicated therapy in which he did not specialise , the applicant had overstepped his professional competences . In his application of DATE lodged with ORG ( PERSON ) , in which he asked for a disciplinary punishment to be imposed on the applicant , the Attorney stated :

“ In the present case the Attorney established that Dr PERSON , by preparing and giving the patient an opinion in which he included judgments on the professional conduct of other doctors ( working in ORG ) , obviously violated the well - established medical society rules of proper conduct between doctors .

Unfavourable arguments and analysis of professional actions expressed by CARDINAL doctor in front of a patient always clearly discredit the doctor under scrutiny ... ”

“ ORG finds that the entirety of the public behaviour of [ the applicant ] has no support in the medical profession and does not serve the rightly understood well - being of the patient . The disciplinary bodies of the ORG will assess their attitudes in detail and draw appropriate conclusions ( wyciągną stosowne wnioski ) . ORG decided to take a position on the public activities of the above - mentioned doctors and the manner in which they have been exercising the medical profession given the exceptional departure from recognised and generally accepted rules and given the possibility of their manipulating the perceptions and the behaviour of the local community . ”

On DATE ORG ( PERSON ) held a hearing . The court was composed of CARDINAL members , all doctors . The applicant , his wife , their representative and a representative of ORG were present at the hearing . However , soon after the opening of the hearing the applicant decided to leave the courtroom , objecting to the fact that the disciplinary court had allegedly violated a time - limit for examination of a case . The hearing continued in the applicant ’s absence as he had not decided to return and the court regarded his absence as unjustified .

On DATE ORG found the applicant guilty of unethical conduct . ORG considered that the applicant , in his report , had expressed negative opinions of the professional conduct of doctors concerned and that he had conveyed these directly to the patient . In so doing , he had discredited the doctors in the eyes of the patient . His behaviour was therefore contrary to the principle of professional solidarity and , consequently , to the provisions of LAW . The court did not examine the truthfulness of the opinion at issue as it found that the question of whether it “ reflected the reality ” was “ of no importance ” for finding a violation of this provision of the LAW . The disciplinary court also found that the applicant had violated LAW , as he had written an opinion concerning a branch of medicine in which he was not a specialist . The court found him guilty as charged and sentenced him to a reprimand ( skazuje na karę nagany ) .

On DATE the applicant challenged all members of the court , complaining that they had not been impartial . The applicant submitted that the independence and impartiality of the members of the disciplinary court had been open to doubt because it was possible that the ORG Governor could have put pressure on them . In addition the applicant complained about the way the hearing had been conducted , submitting that the President of the court had prevented him from putting all his questions and had dismissed his motions . On DATE ORG , sitting in a different composition , dismissed the applicant ’s challenge as manifestly ill - founded .

NORP The applicant appealed on DATE . He argued that a doctor had a right to express freely his own opinion in conformity with his medical knowledge and his conscience and to inform his patient if he believed that the latter had been incorrectly treated or wrongly diagnosed . The purpose of a doctor ’s work was the well - being of the patient and not professional solidarity with other doctors . The applicant further complained that his challenge to the members of ORG , and application to transfer the case to another town , had been dismissed . He submitted that CARDINAL of the CARDINAL members of the court were senior managers of the hospitals thus susceptible to pressure from the ORG Governor ’s office , the latter often being criticised by the applicant ’s association .

On CARDINAL DATE ORG ( PERSON ) , upheld the first - instance court ’s decision . The court considered that the applicant ’s actions were highly reprehensible and harmful not only to the medical profession but also to the patient , as the opinion gave him to believe , groundlessly , that he had been the victim of an injustice . The court also firmly rejected the applicant ’s suggestion that his conviction had been the result of political pressure . A copy of that decision was served on the applicant on DATE .

The LAW of DATE entered into force on CARDINAL October CARDINAL .

LAW guarantees freedom of expression . It states , in so far as relevant :

“ Everyone shall be guaranteed freedom to express opinions and to acquire and to disseminate information . ”

A right to lodge a constitutional complaint was introduced in Article CARDINAL § CARDINAL which provides as follows :

“ In accordance with principles specified by statute , everyone whose constitutional freedoms or rights have been infringed shall have the right to appeal to ORG for its judgment on the conformity to LAW of a statute or another normative act upon which basis a court or organ of public administration has made a final decision on his freedoms or rights or on his obligations specified in the LAW . ”

Article CARDINAL of LAW Code of ORG , set out in Chapter I , entitled “ Relations between a physician and his patient ” ( ORG lekarza wobec pacjenta ) reads , in so far as relevant :

“ CARDINAL . A physician should not exceed the limits of his or her professional competence when carrying out diagnosis , prophylaxis and treatment ... ”

Article CARDINAL of LAW , entitled “ Mutual relations between physicians ” ( ORG wzajemne między lekarzami ) provides as follows :

“ CARDINAL . Physicians must show respect to each other .

A physician should not express an unfavourable opinion on the professional conduct of another physician or discredit him in any other way in the presence of a patient , his or her environment or [ in the presence of ] assisting staff .

All comments on the observed erroneous conduct of a physician should , in the first place , be passed on to him or her . Informing a medical court of the observed unethical behaviour or professional incompetence of another physician does not undermine the principle of professional solidarity . ”

On DATE Article CARDINAL § CARDINAL was amended . It reads as follows :

“ A physician should display particular caution in formulating opinions on the professional conduct of another doctor and in particular he should not in any way discredit him publicly . ”

According to section CARDINAL of the Law of CARDINAL DATE on ORG ( FAC ) , as it stood at the material time , the administrative units of medical self - government were ORG ( PERSON ) and regional medical chambers ( okręgowe izby lekarskie ) . Section CARDINAL provided that a regional medical chamber includes all physicians whose names are entered on its register .

Bodies of a regional medical chamber included , among others , a regional medical court ( okręgowy sąd lekarski ) and a regional attorney for professional liability ( section CARDINAL ) . ORG ( PERSON ) was a body of ORG ( section CARDINAL ) . According to section CARDINAL , the term of office of all bodies of medical chambers was DATE .

Section CARDINAL of the PERSON , in LAW , entitled “ Professional Liability ” ( PERSON zawodowa ) , provided :

“ Members of the medical self - government shall be professionally liable before medical courts for any conduct in breach of the principles of professional ethics and deontology and for any breach of the provisions governing the exercise of the medical profession . ”

Section CARDINAL read , in so far as relevant :

“ CARDINAL . The medical court may impose the following penalties :

CARDINAL ) censure ( upomnienie ) ,

CARDINAL ) reprimand ( nagana ) ,

CARDINAL ) suspension from practice ( zawieszenie prawa do wykonywania zawodu ) for a period from DATE ,

CARDINAL ) revocation of the right to practise medicine ( pozbawienie prawa wykonywania zawodu ) .

A physician , on whom ORG sitting at second instance has imposed any penalty referred to in subsections ( CARDINAL ) or ( CARDINAL ) , has the right to lodge an appeal with ORG within DATE from the date on which the [ court ’s ] decision has been served on him or her ... ”

According to section DATE , matters of professional liability of medical practitioners were examined by regional medical courts and ORG .

A physician on whom a reprimand or suspension from practice had been imposed lost eligibility for election to bodies of medical chambers until a notice of penalty was removed from the relevant register ( section DATE ) . The notice was removed from the register DATE after the decision to impose a censure or reprimand became final ( section DATE ) .

According to section CARDINAL the members of ORG were , in their adjudicating capacity , independent and should follow the law and LAW . Article CARDINAL provided that the term of office of all bodies of the medical chambers was DATE . As provided in section CARDINAL , ORG , sitting as a second - instance court , included a judge of ORG appointed by the First President of ORG .

On DATE ORG delivered a judgment ( SKCARDINAL/CARDINAL ) in which it found that LAW was unconstitutional in so far as it prohibited the truthful public assessment of the activity of a doctor by another doctor in the public interest . The relevant provision , examined in its new wording which came into force in DATE , was not quashed by ORG as only its particular interpretation was considered to breach the constitutional norm securing the freedom of expression .


Preliminary objection allowed (non-exhaustion of domestic remedies)

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

In DATE the applicant purchased an imported second - hand car from a third person . Subsequently , ORG ( “ the ORG ” ) discovered that the car had been customs cleared by its previous owner on the basis of forged documents for which reason , on DATE , it conﬁscated the car pursuant to LAW .

Upon the applicant ’s challenge on DATE to the Customs’ decision , seeking to declare the decision to seize the car unlawful , the ORG upheld the ORG decision on DATE . The judgment was final and not subject to appeal .

On an unspecified date the applicant requested ORG to examine the case anew under a supervisory - review procedure . On DATE the ORG of ORG allowed the application , set aside the judgment and remitted the case for re - examination .

NORP By judgment of DATE ORG held in the applicant ’s favour . It found it established that the applicant had not known that the customs clearance was improper for which reason the court quashed the Customs’ decision of CARDINAL DATE as unlawful . The judgment was final and not subject to appeal .

Following a subsequent successful supervisory - review request submitted by the ORG , the above judgment of DATE was quashed and the case remitted once more to ORG for consideration . By judgment of DATE this court held in favour of the ORG and dismissed the applicant ’s challenge to the ORG decision of CARDINAL DATE .

Following yet another supervisory review ORG of GPE on DATE quashed the above judgment of DATE and re - instated the judgment of DATE which granted the applicant ’s complaint that the ORG decision of CARDINAL DATE was unlawful .

According to the applicant , since his request for recovery of the car lodged with the ORG on DATE had been to no avail , on DATE he unsuccessfully attempted to file a suit against the ORG before the ORG of Ufa seeking , inter alia , the restitution of his car and non - pecuniary damages . He then unsuccessfully attempted to bring many actions against courts , including LOC , and individual judges accusing them of libel , incompetence , and obstruction of justice . However , he has failed , according to information available to the ORG , properly to institute proceedings with a view to obtain compensation for the relevant losses .

According to the Government , the car was not returned to the applicant because it had been sold following its confiscation in accordance with the legislation of GPE .

Article CARDINAL of the Customs Code of CARDINAL establishes the responsibility for non - compliance with the rules for importing goods :

“ ORG , storage and acquisition of goods and vehicles imported into the customs territory of GPE without due customs control , or avoiding such control , or with fraudulent use of documents or identification means , or with a violation of declaration rules ... shall be penalised by a fine in the amount ranging from CARDINAL per cent of the cost of the goods and vehicles , which are the object of the offence , with or without their confiscation , or with the recovery of the cost of such goods and vehicles , or with or without the revocation of a licence . ”

The applicant ’s appeal of CARDINAL DATE against the ORG ’s decision of CARDINAL DATE was lodged under LAW which introduced judicial review of executive decisions . Article CARDINAL in force at the material time read as follows :

Article CARDINAL . ORG taken upon appeal

A court , having established that the order of an administrative agency or official is unlawful , shall take a decision to allow the appeal .

If the amount of the imposed fine exceeds the limit set by the legislation , the court shall reduce the amount of the fine down to the set limit . If the fine is imposed without consideration of the seriousness of the committed malefaction , personal characteristics of the guilty person and his economic situation , the court may reduce the amount of the fine .

If acts of an administrative agency or official are lawful , the court shall take a decision to deny the appeal .

The Federal Law N CARDINAL - CARDINAL On Judicial Appeal against Acts and Decisions Infringing Individual Rights and Freedoms dated DATE , provides for a judicial avenue for claims against public authorities . It states that any act , decision or omission by a state body or official can be challenged before a court if it encroaches on an individual ’s rights or freedoms or unlawfully vests an obligation or liability on an individual . In such proceedings the court is entitled to declare the disputed act , decision or omission unlawful , to order the public authority to act in a certain way vis - à - vis the individual , to lift the liability imposed on the individual or to take other measures to restore the infringed right or freedom . If the court finds the disputed act , decision or omission unlawful this gives rise to a civil claim for damages against the ORG .

Damage caused to an individual as a result of an unlawful imposition of administrative penalty in the form of arrest or corrective works is compensated pursuant to Article CARDINAL of ORG , and in all other instances of damages caused to an individual by unlawful acts ( inaction ) of the ORG agencies or officials thereof is compensated according to the rules set by LAW . These provisions read as follows :

Article CARDINAL . Liability for harm caused by unlawful actions of agencies of inquiry , preliminary investigation , the prosecutor ’s office and the court

Harm caused to an individual as a result of unlawful conviction , unlawful bringing to criminal responsibility , unlawful application as a measure of restraint of remand in custody or of a written undertaking not to leave a specified place , unlawful imposition of an administrative penalty in the form of arrest or corrective labour , shall be compensated in full at the expense of the treasury of GPE and in cases , stipulated by law , at the expense of the treasury of the subject of GPE or of the municipal authority , regardless of the fault of the officials of agencies of inquiry , preliminary investigation , prosecutor ’s offices or courts in the procedure established by law .

Harm caused to an individual or a legal entity as a result of the unlawful activity of agencies of inquiry , preliminary investigation , prosecutor ’s offices , which has not entailed the consequences , specified by paragraph CARDINAL of this Article , shall be compensated on the grounds and in the procedure , provided for by LAW . Harm caused during the administration of justice shall be compensated in cases , if the fault of a judge has been established by the court ’s judgment that has entered into legal force .

Article CARDINAL . Liability for harm caused by state bodies , local self - government bodies , and also their officials

Harm caused to an individual or a legal entity as a result of unlawful actions ( inaction ) of state and local self - government bodies or of their officials , including as a result of the issuance of an act of a state or self - government body inconsistent with the law or any other legal act , shall be subject to compensation . Harm shall be compensated at the expense , respectively , of the treasury of GPE , the treasury of the subject of GPE , or the treasury of the municipal authority .

The above damage is compensated pursuant to a procedure established by law . Until now the procedure has not been established by the legislature . In practice , while deciding upon such issues the courts are guided by LAW of CARDINAL DATE on Compensation of damage caused to citizen by unlawful acts of state and non - government organisations , as well as by officials while performing their official duties . Regulations on procedure to compensate damage were approved by that Decree .

Pursuant to the above compensation of damage is effected pursuant to an application of an individual to a court or any other authority which has the responsibility to order compensation .


Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 2 (procedural aspect);No violation of Art. 2 (substantive aspect);Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

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

In DATE ORG launched a counter - terrorist operation in GPE .

In DATE , because of the armed clashes , the applicant and his family moved temporarily to the house of their relative , Mr S. Kh . , at CARDINAL FAC , GPE - Chu , in GPE district . The village administration recorded the applicant as an internally displaced person .

According to the applicant , on DATE TIME advancing NORP federal forces subjected the area around ORG to indiscriminate shelling . He submitted that the army had used “ Grad ” ( “ GPE ” ) or “ PERSON ” ( “ Ураган ” ) , multiple rocket launch systems , which were stationed QUANTITY from the village . Several projectiles hit the village . CARDINAL of them landed in the yard of Mr PERSON . and hit a car which was parked there . The applicant was standing next to the car and received numerous splinter wounds , including to the head . According to the applicant ’s submissions made to the ORG , in DATE a part of the projectile which had wounded the applicant remained in PERSON . ’s yard .

On DATE the administration of Martan - Chu issued a paper which stated that the applicant and his cousin had been wounded as a result of the bombardment of the village on DATE and that on the same date they had been taken to the hospital in PERSON , in LOC .

As a result of the wounding the applicant ’s health deteriorated ; he had become unable to work , which was recognised in DATE by a forensic examination as second - degree disability . He receives a DATE disability pension .

According to the submitted documents , the applicant underwent several rounds of treatment in connection with his injuries . CARDINAL DATE the applicant was in PERSON hospital . On DATE a splinter was removed from his head . CARDINAL DATE the applicant received post - operative treatment .

On DATE the Urus - Martan district hospital summarised the state of the applicant ’s health . According to the document , the applicant ’s health had been monitored by the hospital since DATE ; he required constant rehabilitation therapy .

DATE the applicant was examined by the experts of ORG . According to their evaluation , the applicant had a penetrating wound to the right part of the frontal lobe with damage to the brain ; such a wound could have been caused by a shell splinter and was qualified as serious damage to the applicant ’s health .

On DATE the applicant ’s mother wrote to ORG and asked for assistance in relation to the applicant ’s situation . She indicated that her son had been injured on DATE as a result of the shelling of PERSON and that the family had been bearing the costs of complex medical interventions .

On DATE the applicant ’s mother informed the LOC prosecutor ’s office ( “ the district prosecutor ’s office ” ) about the applicant ’s injury received during the bombardment on DATE . She alleged that the shelling of the village had been carried out by the servicemen of the “ ORG regiment ” .

On DATE the applicant ’s mother complained about the applicant ’s injuries to the Urus - Martan district police department ( “ the ROVD ” ) and requested the authorities to institute a criminal investigation into the events .

On DATE the ROVD refused to institute criminal proceedings in connection with the applicant ’s wounding on DATE . The decision stated that the authorities had conducted an inquiry , which had established the following : a number of armed clashes , including exchanges of gunfire , had taken place between NORP forces and illegal armed groups in the area of the applicant ’s residence in DATE . As a result of the bombardment of Martan - Chu the applicant was injured , which had been confirmed by the witness statements of PERSON , PERSON . and PERSON projectile , which had hit the yard of PERSON . and wounded the applicant , had been launched by CARDINAL of the parties to the conflict . However , it was impossible to establish which party had launched the projectile . Thus , taking into consideration that the applicant had been injured as a result of an accident , the request for the institution of criminal proceedings was to be rejected pursuant to LAW owing to the lack of corpus delicti .

On DATE the ROVD informed the applicant about their decision concerning the refusal to institute criminal proceedings .

On DATE the applicant brought proceedings against ORG . The applicant stated that as a result of the wounding on DATE he had become incapacitated and unfit for work . He demanded compensation for pecuniary damage in the amount of MONEY ( RUB ) and non - pecuniary damage in the amount of RUB CARDINAL .

NORP In response to the applicant ’s specific request , on DATE the Martan - Chu administration issued a note that they “ had no information about unprovoked artillery and air strikes ” on the village , except for the air strikes which had occurred on DATE and hit the households of Mr ORG and PERSON S.E.

On DATE Urus - Martan Town Court ( “ the town court ” ) rejected the applicant ’s claim . It stated that although as a result of the shelling on DATE the applicant had been wounded and became partially incapacitated , he had failed to provide sufficient evidence which would allow the court to establish a causal link between the actions of the artillery of the NORP armed forces and the damage alleged by the applicant . In its ruling the court referred to the decision of DATE to refuse criminal proceedings .

On DATE the Martan - Chu administration issued a note to confirm that both on CARDINAL and DATE the village had been subjected to indiscriminate bombardment from the direction of the advancing NORP forces . On DATE CARDINAL of the projectiles had hit PERSON . ’s yard and had destroyed his property , as confirmed by an official evaluation of damages and by witness statements . The shelling was also confirmed by the ORG statements . At the relevant time the applicant had been registered as an internally displaced person , was living with his relatives in ORG and had become partially incapacitated as a result of the injury received on DATE .

The applicant appealed against the judgment of DATE alleging that the town court had been partial and had failed to assess the evidence properly .

On DATE ORG upheld the judgment . It found that the applicant ’s appeal concerned reassessment of the evidence examined by the first - instance court and confirmed that the applicant had failed to substantiate his allegations with appropriate evidence . ORG also pointed out that the applicant had failed to appeal against the authorities’ refusal to institute criminal proceedings on DATE , and emphasised that that decision was still valid and therefore had served legitimately as the basis for the court ’s findings .

On DATE the applicant asked the town court to set aside the ROVD decision not to institute criminal proceedings and to oblige the authorities to open a criminal investigation into his injuries .

On DATE the town court allowed the applicant ’s complaint and quashed the decision of DATE . The court stated that the police had failed to carry out basic investigative measures such as the examination of the crime scene , collection of evidence and forensic assessment of the applicant ’s health .

On DATE the applicant wrote to the ROVD and referred to the court decision of DATE . He asked about the latest developments in the case .

On DATE the ROVD referred to their previous decision of CARDINAL DATE not to institute criminal proceedings .

On DATE the applicant again wrote to the ROVD and referred to the town court decision of CARDINAL DATE .

On DATE the district prosecutor ’s office remitted inquiry file no . CARDINAL opened in connection with the applicant ’s complaint to the ROVD for additional examination and decision on the merits . Following this development , the ROVD carried out a number of investigative measures .

The Government , in response to the ORG ’s request , submitted CARDINAL pages from the investigation file dated DATE . They argued that the remaining documents ( no list or number of which has been provided ) could not be disclosed , in the absence of guarantees by the ORG to protect the data containing ORG secrets . Referring to LAW , the ORG stated that the remaining documents could not be divulged without harming the interests of the investigation and the interests of the participants to the proceedings . The submitted documents and the parties’ submissions may be summarised as follows .

On DATE the investigator examined PERSON . ’s household and noted marks of shrapnel on some walls . Nothing of relevance to the investigation was collected .

According to the ORG ’s submissions , in DATE the local police in GPE PERSON had questioned CARDINAL neighbours and the applicant ’s cousin , who confirmed the circumstances in which the applicant was wounded on DATE . The police also questioned PERSON , who at the relevant time had headed the local administration in Martan - Chu . He corroborated the applicant ’s submissions and testified that he had inspected Mr S.Kh . ’s household shortly after the explosion and recorded the destruction . None of these statements were made available to the ORG .

The police also obtained copies of the applicant ’s medical file from ORG hospital .

According to the documents submitted , PERSON . died in DATE .

The criminal investigation file was eventually opened by the ROVD on DATE under LAW part QUANTITY of LAW – causing of serious injuries by universally dangerous means .

The applicant was questioned on DATE and DATE ( only the record of the latter has been submitted to ORG ) . He explained that on DATE at TIME he and his cousin had been wounded as a result of a shell exploding in the courtyard of Mr PERSON . ’s house .

On DATE ORG concluded that the applicant ’s injuries could have been caused by a piece of shrapnel and that they constituted grievous bodily harm .

On DATE the applicant was accorded the status of a crime victim in the proceedings .

On DATE the applicant ’s mother was questioned . She gave similar account about the applicant ’s wounding and about the treatment he had to undergo . She indicated that she was not aware who exactly had shelled the village , but she had heard that these were troops headed by General Shamanov .

On DATE the applicant sought an award of RUB CARDINAL in compensation for damage to his health against the perpetrators of the crime . On DATE the investigator accorded the applicant the status of a civil claimant .

On DATE the investigation was adjourned for failure to identify the culprits . The decision stated that in order to identify the persons who had committed the crime the investigator had sent a number of requests for information to the various bodies of ORG and ORG . Nothing of relevance to the investigation was obtained . No copies of any such requests or answers have been submitted to ORG .

On DATE the investigative department of ORG GPE ordered that the investigation be resumed . The reason for the decision was that unspecified investigative measures had not been taken .

In DATE the applicant collected additional statements from his cousin , CARDINAL neighbours and his mother and submitted them to the ORG . These detailed statements concern the shelling and subsequent developments . In particular , the applicant ’s cousin stated that the attack had been carried out from the north and with the use of multiple - launch rocket systems . He further stated that for DATE after the event parts of the “ Grad ” rockets could be found in the village and described the CARDINAL found in their courtyard . He alleged that on DATE CARDINAL rockets ( “ Grad ” is designed to launch DATE projectiles ) had hit the village and listed other households and places where the explosions had taken place . He alleged that in DATE an investigator had collected CARDINAL part of the projectile from the village for an expert evaluation . The applicant ’s mother alleged that the investigator had informed her on the telephone that the expert report had identified the metal object collected in DATE in Martan - Chu as the tail part of the “ Grad ” missile . It appears that the investigation is still pending .


David Thór Björgvinsson;George Nicolaou;Georgieva;Lech Garlicki;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicants , PERSON Ilieva and her daughter , PERSON , are NORP nationals who were born in DATE and DATE respectively and live in PERSON . The respondent Government were represented by PERSON , of ORG .

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

The applicants lived together next door to the first applicant ’s brother , PERSON lived with his wife PERSON and their son PERSON The first applicant ’s mother , an elderly woman , used to live with PERSON , but following a dispute with him moved in with the first applicant and her daughters .

The first applicant and PERSON had also had a long - running dispute . The move of their mother exacerbated the rift between the neighbours . It appears that their ongoing conflict prompted the police to warn them several times not to harass each other or their families . On various occasions the applicants and PERSON lodged actions and complaints with the competent authorities , alleging harassment and unlawful conduct .

On DATE the first applicant and her other daughter argued with PERSON over the presence of a brick wall between the QUANTITY . The tension escalated and someone called the police . There is contradictory information regarding the incident but , in any event , the police officers warned ORG not to physically or psychologically harass the applicants .

At TIME DATE , DATE , the applicants , the first applicant ’s other daughter and CARDINAL grandchildren , who were minors , were walking past ORG house , heading towards the children ’s school . The first applicant ’s mother was standing at the front door of their house .

There is conflicting evidence about the events which followed . During the ensuing investigation , the applicants claimed that when PERSON noticed them walking down the street , he started throwing stones at them . According to the applicants he was still feeling angry about the incident of DATE . Despite the provocation , the applicants simply told him to stop and continued walking . According to the applicants , PERSON and PERSON took advantage of the fact that the applicants were leaving and started verbally abusing PERSON ’s mother . The latter began calling for help .

G.M. and PERSON contested this account of the events and maintained that the argument had started when , while having their TIME coffee , they heard the mother murmuring obscenities at ORG and were drawn into an argument with her . In their view , at that point the elderly woman started complaining loudly of harassment .

It appears that when they heard the elderly woman ’s cries , the first applicant and her daughters rushed back and engaged in a physical fight with PERSON got involved and started hitting the applicants , according to them with something resembling a hoe . The first applicant allegedly started exerting pressure on his testicles . Having heard the commotion , PERSON ran out of the house and joined in the fight , hitting the applicants with a stick . In their statements during the investigation the applicants claimed that PERSON , PERSON and PERSON also shouted obscenities at them .

The fight apparently did not last a long time . Shortly after it was over the applicants made a complaint at the police station and visited a doctor . The doctor noted in his report that the first applicant had sustained the following injuries : a wound of CARDINAL by CARDINAL PERSON with uneven sores around the edges on the left side of the back of her head ; swelling , a bruise and a small wound of CARDINAL by PERSON in the left corner of her mouth ; a bruise of CARDINAL PERSON on the back of her left forearm ; a welt across the buttocks of CARDINAL by QUANTITY ; and abrasions on both knees . The second applicant had swelling and a bruise of CARDINAL by QUANTITY with a ruptured mucous membrane on the inside of her left cheek .

On DATE the applicants filed a complaint with the GPE district prosecutor . On DATE the police warned GPE , PERSON and PERSON , in writing , not to physically and psychologically harass the applicants .

It appears from the applicants’ submissions that by a decree of an unspecified date the district prosecutor refused to open criminal proceedings on the ground that the actions complained of constituted minor bodily harm and proceedings were to be taken on the basis of a private criminal complaint lodged with the court .

Following that , on DATE the applicants brought a private criminal complaint before ORG against GPE , PERSON and LAW for inflicting minor bodily harm and insulting them in public .

At a hearing on DATE the court accepted for examination the applicants’ civil claims together with their private criminal complaint .

DATE and DATE the court held several hearings and heard a number of witnesses .

In a decision of DATE the court discontinued the proceedings and transferred the case to the prosecutor on the ground that the actions complained of constituted hooliganism , a crime which was subject to public prosecution . The parties did not appeal against the decision .

The prosecutor examined the case file in the light of the court ’s findings that the legal characterisation of the offence was hooliganism . By a decree of DATE he refused to open criminal proceedings against ORG , PERSON and PERSON , stating once again that the criminal characterisation of the actions complained of was minor bodily harm , to be prosecuted by means of a private criminal complaint .

The applicants learned about the prosecutor ’s decree of DATE on an unspecified date . It appears that the first applicant ’s appeal against the decree resulted in the case being remitted to the district prosecutor with instructions . However , the applicants failed to submit any information about the reasons for the remittal or about any subsequent actions of the district prosecutor .

Meanwhile , the prosecutor sent his decree of DATE to ORG . By a judicial order of CARDINAL DATE the judge rapporteur who had previously been in charge of the case withdrew and , on DATE , another judge was appointed .

On DATE the court held a hearing but decided to discontinue the examination of the case against GPE , PERSON and PERSON , noting that the court ’s decision of DATE had become final and put an end to the criminal proceedings against GPE , PERSON and PERSON The court further noted that in view of the discontinuance of the proceedings by a final act , the steps undertaken by the court , namely the withdrawal of the previous judge rapporteur and the appointment of a new one , were irrelevant . In view of this , it also stated that its findings were not subject to appeal .

Nevertheless , the applicants challenged the court ’s decision . In a decision of DATE ORG upheld ORG findings , in particular its conclusion that the court ’s decision of DATE had put an end to the criminal proceedings against ORG , PERSON and PERSON

On an unspecified date , but apparently before DATE , the first applicant sent another complaint concerning the same matter to ORG , which transferred it to the district prosecutor . On DATE , the district prosecutor refused to open criminal proceedings . The prosecutor stated that at the time the applicants submitted their complaint to ORG , criminal proceedings had been pending before ORG on the same facts , which prevented the institution of criminal proceedings by a public prosecutor . It appears that the decree became final shortly thereafter .