CASE OF KRONE VERLAG GMBH & CO KG v. AUSTRIA

Violation of Article 10 - Freedom of expression -{General}

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

In DATE the T association and another association founded ORG Forschungs- und ORG ( hereafter “ FAC FH ” ) . This non - profit company was to promote and offer scientific support to the development of the information and communication society by conducting research projects and scientific studies in this field , by offering training , organising public presentations , editing publications and carrying out projects with other similar institutions . ORG was sponsored by , inter alia , GPE .

In DATE Mr PERSON , chairman of the T association at the time , was dismissed . The association held a press conference at the same time and praised the development of ORG .

The applicant company subsequently published a series of articles about Mr Bruck , the managerial director of ORG , in its DATE newspaper PERSON .

On DATE the applicant company published an article headlined “ Secret report discloses new scandal in Techno - Z ! ” ( GPE enthüllt neuen GPE um Techno - Z ! ) The relevant parts read as follows :

( NORP original )

„ . [ ... ] Ein streng geheimer Bericht deckt haarklein auf , wie locker es „ Medienprofessor “ PERSON in seiner Techno - Z - Firma bei Finanzen nahm !

PERSON , PERSON Forschungs- und ORG “ . PERSON kassiert dort fürstlich wie ein bisher geheimgehaltener „ Statusbericht “ über die ORG enthüllt . PERSON der DATE fielen die Prüfer fast PERSON . PERSON gültigen GPE , laut altem PERSON hätte er QUANTITY brutto verdient . QUANTITY Medienprofessor “ ließ sich MONEY i m Monat überweisen , dazu noch MONEY als PERSON “ . Es konnte „ nicht nachvollzogen werden “ , QUANTITY welchem ORG sich Bruck die insgesamt CARDINAL S monatlich genehmigte ... PERSON nicht genug : PERSON die Reiselust ließ PERSON der Herr vom Techno -Z finanzieren . PERSON für DATE verrechnete er CARDINAL.CARDINAL,CARDINAL LOC PERSON für DATE wieder MONEY für PERSON vorgesehen . NORP ORG pro Tag ... PERSON die finanzielle GPE nicht gestillt : CARDINAL hohe sechsstellige PERSON Tantiemen “ kam noch dazu , also eine PERSON . PERSON das FAC ( AMS ) ließ PERSON überweisen . PERSON seine ORG hätte CARDINAL S Gewinn gemacht . PERSON sagten die Prüfer . Es waren CARDINAL S weniger . [ ... ] ”

( Translation from NORP )

„ .... a very secret report discloses in great detail how lax the “ media professor ” PERSON was about the finances in his company Techno - Z ! ... At the DATE audit the auditors almost fell off their chair . PERSON had no valid employment contract at that time ; according to his old contract , he would have earned a gross salary of MONEY . But the “ media - professor ” had transferred himself ORG CARDINAL per month and a further “ premium ” of ATS CARDINAL . It was not possible to ascertain by which right PERSON was helping himself to a total of ORG CARDINAL per month ... But this was not enough : PERSON had also financed his wanderlust . For DATE alone he charged ORG CARDINAL for business trips . And for DATE another ORG CARDINAL were provided for PERSON ’s business excursions . That ’s CARDINAL [ schillings ] per day ... But even with this , [ PERSON ’s ] financial avarice was not satisfied : a high CARDINAL - figure sum for ‘ royalties’ , a kind of premium , was added . At a training workshop for ORG had transferred himself ORG CARDINAL as his company had made a profit of ORG CARDINAL . Wrong said the auditors . It was ORG CARDINAL less . ... ”

On DATE the applicant company published another article headlined “ Techno - Z : Scandal concerning media professor - bank disclosed trick- ... The business dealings of PERSON . ” ( Techno - Z : GPE um „ Medienprofessor ” – Bank deckte Trick auf DATE [ ... ] – Die Geschäfte des Herrn Bruck ) . The relevant parts read as follows :

( NORP original )

ORG

PERSON um den sogenannten “ NORP ” PERSON am PERSON - Z wird immer ärger : PERSON , PERSON zu . PERSON streckte er beim Firmenkonto den Überziehungsrahmen . Als die Bank das merkte , war die GPE los ! Die „ Krone “ hat die seltsamen ORG aufgedeckt . PERSON zeigt , wie locker es dieser PERSON nahm :

· PERSON CARDINAL S i m Monat ( ORG plus PERSON ) , dafür gab es weder GPE noch Beschluss .

· PERSON zahlt die Techno - Z - Firma jährlich für „ Dienstreisen “ PERSON .

· Dazu kassierte er jährlich eine hohe sechsstellige DATE an „ Tantiemen “ . PERSON , wie die internen ORG nachwiesen .

PERSON nicht genug : GPE ließ er auf Firmenkonten den Überziehungsrahmen von CARDINAL auf weit über CARDINAL Millionen S ausweiten . PERSON ! GPE ORG die PERSON , holte sie unverzüglich CARDINAL die DATE , das ganze Geld zurück . PERSON waren ja nicht gedeckt ! QUANTITY die PERSON : PERSON wurde DATE einmal sogar ihr GPE einige PERSON ! PERSON : PERSON der GPE , die diese unfaßbaren PERSON aufgedeckt haben , bekam aus Rache nicht einmal sein Honorar bezahlt ... [ ... ] ”

( Translation from NORP )

„ The scandal concerning the so - called ‘ media - professor’ PERSON at ORG gets worse and worse : not only with his salary , premiums and business trips did PERSON really help himself . Without authorisation he exceeded the credit line of the company ’s bank account . When the bank noticed this all hell broke loose ! The PERSON has disclosed the most dubious business dealings on the part of the professor . A secret report shows how lax PERSON was about the finances : he helped himself to ORG DATE ( salary plus premium ) , there was neither a contract nor a decision authorising this . FAC company pays approximately ORG CARDINAL yearly for B ’s ‘ business ORG . He also collected a yearly high six - figure for ‘ royalties’ . By the way , CARDINAL of the auditors who disclosed this inconceivable state of affairs was not even paid his fees – out of revenge ... ”

This article was followed by a further text in a small box which stated :

( NORP original )

„ [ ... ] PERSON haben tatsächlich dem PERSON als GPE geschadet . Schausberger hat die QUANTITY PERSON hat PERSON vorbildhafte PERSON eingerichtet . PERSON es um PERSON , so taucht in GPE immer ORG der Name des sogenannten PERSON . PERSON umtriebige Professor hat einen Schutzpatron : PERSON geringeren als PERSON . PERSON beweist auch die PERSON jenes Geheimtreffens , das Gasteiger i m Techno - Z organisieren ließ ( siehe GPE ) . ORG zunächst das seltsame PERSON , eine PERSON , QUANTITY locker CARDINAL an Steuer- & Stromgeld flott gemacht werden sollten , PERSON gehabt . [ ... ] ”

( Translation from NORP )

“ ... Expense account profiteers and rip - off merchants ( ORG ) have really damaged GPE ’s reputation as Region of the Future ... Whenever the discussion turns to dubious affairs , the name of the so - called media expert PERSON crops up again and again in GPE .... First , there was the strange “ citizen web ” , CARDINAL of PERSON ’s ideas , for which CARDINAL of tax money was to be made readily available . had [ With this idea ] children would have had access to the pornographic sites of the internet sex industry ... ”

NORP On DATE a further article entitled “ Techno - Z : the second audit also shows shortcomings in PERSON ’s company - How he deceived colleagues – The way Mister ‘ Media Professor’ cheated ” ( Techno - Z : PERSON GPE arge PERSON in PERSON – PERSON er Mitarbeiter tauschte – So trickste der PERSON Medienprofessor ” ) stated :

( NORP original )

PERSON i m GPE um den sogenannten “ Medienprofessor ” PERSON und seine ORG i m FAC , ORG und jährlich GPE für PERSON Professor bezahlen . PERSON zweites ORG fand schwere PERSON in FAC PERSON in GPE waren abenteuerlich . PERSON Statusbericht “ in dem CARDINAL Prüfer seine GPE genau untersuchten . [ ... ] ”

( Translation from NORP )

“ No end to the scandal concerning the so - called ‘ media professor’ PERSON and his company in the GPE Techno - Z. Mister Professor has paid himself a big salary , big royalties and yearly ORG CARDINAL business trips . A second team of auditors has also established serious shortcomings in PERSON ’s company ! The finances of PERSON ’s company were adventurous . This is established by a very secret ‘ status PERSON in which CARDINAL auditors examined his affairs thoroughly ... ”

On CARDINAL DATE an article entitled “ Concerning ‘ media professor’ ORG has been waiting for his money for a year - Techno - Z : Is a request for bankruptcy looming ? ” ( GPE um „ Medienprofessor ” PERSON wartet MONEY : PERSON ? ) stated :

( NORP original )

“ PERSON für den “ Medienprofessor ” PERSON und seine ORG i m FAC : PERSON haben ja in penibler PERSON die PERSON - Tricks des Herrn durchleuchtet und arge FAC . PERSON der Prüfer bekam noch immer kein Honorar . Er droht nun ORG gegen Bruck an ! [ ... ] ”

( Translation from NORP )

“ Now it ’s getting tight for the ‘ media professor’ PERSON and his company in ORG : CARDINAL auditors have x - rayed in fastidious detail the financial tricks of [ this ] gentleman and have discovered serious shortcomings . CARDINAL of the auditors has not yet received his fees . He is now threatening to file a bankruptcy petition against PERSON ! ... ”

A further article of CARDINAL DATE entitled “ Report about ‘ media GPE earned ‘ thanks and consternation’ ” ( Bericht über „ Medienprofessor ” erntete „ Dank und FAC ) stated inter alia :

( NORP original )

“ [ ... ] ORG war so arg geführt , daß “ umgehend ” ein kaufmännischer Chef neben Bruck bestellt werden mußte , um “ solides PERSON entsprechende GPE zu garantieren ! [ ... ] ”

( Translation from NORP )

“ ... The company was so badly managed that a commercial director had to be appointed ‘ PERSON in addition to PERSON to guarantee a solid accounting system and proper management of public finances ... ”

Lastly , on DATE an article entitled “ Further storm about wayward affairs in the Techno - Z company ” ( PERSON um eigenwillige GPE in Techno - Z - Firma ) stated

( NORP original )

“ [ ... ] In seiner Firma i m Salzburger Techno - Z gönnt er sich ein sattes ORG , fette Tantiemen und QUANTITY . PERSON werden eigenwillige GPE ruchbar , PERSON in der Firma auch PERSON . [ ... ] Da verwundert es doch , dass PERSON Professor seine eigene LOC mitarbeiten ließ . QUANTITY um einen etwas höheren FAC andere Mitarbeiter der Firma ... [ ... ] ”

( Translation from NORP )

“ ... In his company in ORG he helps himself to a big salary , big royalties and ORG CARDINAL per year for business trips . Wayward affairs are becoming known now as PERSON also employs relatives in the company ... In this context there is still astonishment that Mister Professor gave his own daughter a job . Moreover at a slightly higher salary than other employees in the company ... ”

On DATE Mr Bruck was dismissed from his post as managerial director .

Referring to the above statements , PERSON instituted proceedings in ORG ( PERSON ) under Sections CARDINAL and CARDINAL of LAW ( Mediengesetz ) claiming compensation and publication of the judgment .

The case was subsequently delegated to ORG , which held a hearing at which evidence was heard from PERSON , the T association ’s managerial director , its chairman and his deputy at the time of the events , the commercial director of ORG at the time of the events , the CARDINAL auditors in question and the journalist who had written the articles at issue .

On DATE ORG , sitting as a single judge , dismissed PERSON claim . It found that the impugned statements consisted partly of value judgments with a sufficient factual basis and partly of true statements of fact . It noted that the auditors Mr PERSON and PERSON ORG had established in a report of DATE serious shortcomings in the book - keeping and accounting system of ORG . They found that there had been no composite book - keeping for DATE and that this system did not correspond to the principles of proper bookkeeping under the Book - keeping Act ( Rechnungslegungsgesetz ) . The management board of the T association had taken note of this report with thanks and consternation . Despite that report the financial status of the company had been unclear at the time because of missing data . The management board had subsequently decided to appoint a commercial director in addition to Mr Bruck in order to guarantee a solid accounting system and management of public finances .

A further report , by an external firm of business auditors commissioned by PERSON , although more favourable , had also established shortcomings in the book - keeping and accounting system and had made recommendations for improvements . For instance , contrary to the company agreement , investments over a certain amount had been made without the authorisation of the company owners . Furthermore , a bank account for a certain project had been registered in PERSON name . Therefore , the ORG statement that PERSON was lax about the finances of ORG was true .

NORP The court further noted that PERSON former contract had expired at DATE and , although the main features of a new contract had been discussed , there had been no agreement on its fundamental aspects . Therefore , at the time of the audit in DATE Mr PERSON did not actually have a valid employment contract and the payouts , although not considered as arbitrary and tolerated , had taken place without any legal basis . PERSON had not contested the amount of the sums mentioned in relation to his salary and expenses for business trips . The notions “ wanderlust ” and “ business excursions ” and “ financial avarice ” , “ expense account profiteer ” , “ rip - off merchant ” and “ so - called media expert ” and the statement that the finances in the company were “ adventurous ” were permissible value judgments . The fact that PERSON had wrongly calculated royalties had been proven by the audit report of Mr PERSON and PERSON . The statement that PERSON had used financial tricks was therefore also true . PERSON had in fact once exceeded the credit line of the company and had acknowledged that Mr PERSON had not been paid his fee . His argument that Mr PERSON had not been commissioned by ORG was questionable and , in any event , did not exclude the possibility that another motive for the refusal to pay Mr PERSON had been revenge , which , moreover , appeared obvious in view of the consequences of his report . Mr PERSON had actually requested the opening of bankruptcy proceedings against ORG . It was true that Mr PERSON ’s idea of providing every household in GPE with free internet access would have allowed children to access pornographic sites . PERSON had employed his daughter in his company at a slightly higher salary per hour than other employees .

The court noted , lastly , that the applicant company could rely on LAW , particularly as there was substantial public interest in the subject matter because public funds were at stake .

On an appeal by PERSON , ORG ( Oberlandesgericht ) , having held a hearing and sitting as a bench of CARDINAL judges , quashed that judgment on DATE . It found that ORG had left essential evidence unconsidered and had given pseudo - reasons for its findings . In addition to the facts established by ORG and referring to the statements of the witnesses made before that court , ORG set out the following background to the case :

Mr PERSON was a former honorary professor at ORG and academic director of a technical college . In his function as managerial director of ORG he had had responsibility , in particular , for acquiring research and development subsidies from national , NORP and international bodies in which task he was highly successful . The travel expenses for the corresponding business trips had never been challenged and appeared reasonable in the light of their development over DATE and in relation to the travel expenses of the company ’s other employees .

After PERSON former contract had expired at DATE , he was able to base his salary claim on an oral agreement of DATE which was recorded in a note for the file and provided for a base amount of CARDINAL NORP Shillings ( ORG ) and a premium depending on any surplus produced by the company , this to be paid as DATE instalments of ORG CARDINAL . The taking of a decision on Mr PERSON ’s contract was repeatedly adjourned because no agreement on the concrete calculation of the company ’s surplus could be reached .

While it was true that Mr PERSON and Mr PERSON ’s report of DATE established shortcomings in the accounting system , criticised the fact that PERSON salary was paid without any underlying contract or decision and that royalties for DATE had been wrongly calculated , that report appeared partial and subjective : PERSON had previously praised the accountancy and organisation of ORG . Furthermore , Mr PERSON and Mr PERSON had been present when the basic agreement on Mr PERSON ’s further contract had been reached on DATE . Lastly , Mr PERSON and Mr PERSON had simply noted the lack of vouchers book - keeping in DATE without questioning the reason for it , namely a computer crash as established by the subsequent audit by an external accounting firm . The report by that firm , commissioned by PERSON , found that the accounting system and management of public finances corresponded to the average standard of a private institution and remarked critically that the company had not adapted its organisation structure to the rise of its business turnover fast enough . It did not confirm the serious shortcomings outlined in PERSON PERSON and Mr PERSON ’s previous report .

The commercial director was in fact appointed to relieve PERSON PERSON who was busy handling other accountancy matters . It was true that in DATE Mr Bruck had exceeded the company ’s credit line ; however , he handed in the corresponding authorisation DATE and was absolved by the management board as he had demonstrated that the overdraft had been necessary . When drawing up a proposal for a “ ORG web ” in DATE , PERSON had wished to create a local educational internet and not provide children with access to pornographic internet pages . Furthermore , there was a possibility of locking certain pages of the internet .

Mr Bruck had properly refused to pay Mr PERSON ’s fees because it was the T association and not ORG which had commissioned him . Mr ORG ’s subsequent request that bankruptcy proceedings be instituted against the company had been unsuccessful because he had not submitted any proof of the company ’s insolvency . PERSON had employed several trainees during the holidays , including his daughter , who had been paid DATE , while other trainees had been paid ORG TIME and TIME . There was no indication of preferential treatment as the amount paid to Mr PERSON ’s daughter corresponded to her skills and the activities she had carried out .

The court found that in its overall context the series of articles wrongly accused PERSON of fraudulent conversion , unjustified enrichment and commercial ineptitude . The applicant company ’s reporting did not comply with the standards of journalistic diligence as it had not carried out any fair and objective research and had not questioned PERSON . As the majority of the reported events dated back DATE the journalist concerned had been under no time pressure to research the true facts behind the case . Having regard to the gravity of the criticism levelled at Mr Bruck , who had meanwhile been dismissed in order to get the company and himself out of the applicant company ’s firing line , the court ordered the applicant company to pay ORG CARDINAL in compensation .

The applicant company subsequently filed a request for rectification of the transcript of the hearing before ORG . It submitted that the transcript wrongly reported that the full file ( including the transcripts of the examination of the evidence conducted before ORG ) had been read out . On DATE ORG granted this request and rectified the transcript to the effect that the full file had not been read out as , according to the statement of all members of the ORG ’s bench , the parties had waived their right to have the full file read out .

Section CARDINAL(CARDINAL ) of LAW provides for the strict liability of the publisher in cases of defamation ; the victim can thus claim damages from him . In this context “ defamation ” has been defined in LAW ) as follows :

“ CARDINAL . Anyone who in such a way that it may be perceived by a third person accuses another of possessing a contemptible character or attitude or of behaviour contrary to honour or morality and of such a nature as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding DATE or a fine ...

Anyone who commits this offence in a printed document , by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public shall be liable to imprisonment not exceeding one year or a fine ...

The person making the statement shall not be punished if it is proved to be true . As regards the offence defined in paragraph CARDINAL , he shall also not be liable if circumstances are established which gave him sufficient reason to assume that the statement was true . ”


Violation of Art. 6-1;Not necessary to examine Art. 14 or 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

On DATE , the applicant began work in FAC , GPE , as a silver service waiter . This hotel is owned by ORG , which is subsidiary of ORG . Initially the applicant had been doing very well and was optimistic about promotion . On DATE , the restaurant manager informed the applicant that he was being dismissed forthwith . The applicant was given no reason whatsoever for his peremptory dismissal . Various attempts to get an explanation for the dismissal were unsuccessful . Ultimately the general manager told the applicant on DATE that he was dismissed because he did not meet the grade and there was no other reason . Of all the full - time and permanent staff in the restaurant the applicant believes that he was the only NORP .

The applicant made a complaint to ORG that he had been unlawfully discriminated against on the grounds of religious belief or political opinion . The applicant and CARDINAL of his CARDINAL siblings are not involved in any politically related activity .

By a letter of CARDINAL DATE , the applicant ’s solicitors wrote to the Chief Constable of ORG ( “ ORG ” ) stating that they had been informed that the reason for the applicant ’s dismissal from his employment at FAC was an approach made to the ORG by members of the ORG who had stated that the applicant was a suspect . The solicitors requested that the ORG provide information as to what the applicant was suspected of and on what basis the applicant had been allegedly described as a suspect . The ORG replied to this letter , stating that they were unable to comment on such matters , it not being force policy to do so .

On DATE the solicitors acting on behalf of the applicant ’s employers wrote to ORG .

“ We return herewith Notice of Appearance in relation to the application presented by Mr PERSON . On our instructions , the acts of which complaint is made , were done for the purpose of protecting public safety , and in the circumstances by virtue of LAW of LAW DATE , ORG ( GPE ) Acts do not apply so that the tribunal does not have jurisdiction to entertain the complaint . ”

The Fair Employment Tribunal then of its own motion fixed a preliminary hearing for determination of the following issue :

“ Whether the tribunal has jurisdiction to consider the applicant ’s complaint in view of the provisions of LAW of ORG ( GPE ) Act DATE . ”

On DATE ORG , acting on behalf of the applicant , wrote to the solicitors acting on behalf of the applicant ’s employers requesting to know , inter alia , whether the Secretary of ORG or any other ORG had been approached with a view to obtaining a LAW ( CARDINAL ) certificate . By reply of DATE the ORG solicitors stated :

“ We DATE received your letter dated DATE in relation to the above . You will be pleased to hear that during the writer ’s holiday DATE a LAW certificate was received from the ORG office ( a certified copy of which is enclosed herewith ) so that it now seems unnecessary to take any further action , and that you may close your file in this matter . ”

The applicant stated that he did not know the basis upon which the certificate was issued . He had never been shown , and was not entitled to demand , sight of the information , if any , which was placed before the Secretary of ORG which led to the certificate being issued . The applicant did not know whether this information was correct or incorrect , whether it was complete or incomplete , and whether it was reliable or not . Nor did he know whether the information provided could reasonably support the view expressed in the certificate .

The matter first came before ORG on DATE . On that occasion the ORG declared that the certificate presented did not affect the applicability of LAW to the dismissal of the applicant by ORG , since the certificate referred to an act done by ORG .

At a resumed hearing on DATE ORG were presented with a new certificate signed by the Secretary of ORG for GPE and certifying that the decision by ORG to terminate its contract of employment with the applicant was for the purpose of protecting public safety and public order . In light of the certificate , ORG found that LAW did not apply to the termination of the applicant ’s contract , nor to the decision summarily to terminate the contract and accordingly that :

“ there is nothing for this ORG to consider in relation to that act [ of termination ] . ”

The tribunal dismissed the applicant ’s complaints in relation to his dismissal and the manner of his dismissal .

By virtue of LAW of ORG ( GPE ) Act DATE ( “ the LAW ” ) it is unlawful for an employer to discriminate against a person on grounds of religious belief or political opinion in relation to employment in GPE , inter alia , by dismissing him or subjecting him to any other detriment . By virtue of section CARDINAL of the CARDINAL Act as amended , a complaint of unlawful discrimination may be presented to ORG , which is established by statute to investigate complaints of unlawful discrimination on grounds of religious belief or political opinion .

Section CARDINAL of the CARDINAL Act provides as follows :

“ ( CARDINAL ) The Fair Employment ( GPE ) Acts shall not apply to an act done for the purpose of safeguarding national security or protecting public safety or public order .

( CARDINAL ) A certificate signed by , or on behalf of the Secretary of ORG and certifying that an act specified in the certificate was done for the purpose mentioned in sub - section ( CARDINAL ) shall be conclusive evidence that it was done for that purpose .

( CARDINAL ) A document purporting to be a document such as is mentioned in subsection ( CARDINAL ) shall be received in evidence and , unless the contrary is proved , shall be deemed to be such a certificate . ”


No violation of Article 5 - Right to liberty and security

David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi

The applicant was born in DATE and lives in ORG . As it appears from the documents submitted , he is currently detained in ORG .

On DATE the applicant was detained and subsequently remanded in custody by ORG on charges of rape and murder by a detention order of DATE . The latter was upheld on DATE by ORG .

On several occasions , namely DATE , DATE , CARDINAL May , DATE and DATE the applicant ’s pre - trial detention was prolonged . ORG relied in its decisions on the reasonable suspicion that the applicant had committed the offences and on the severity of the likely sentence . According to its reasoning , the applicant ’s detention was the only measure which could secure the proper conduct of the proceedings in view of the extensive body of evidence which was to be considered in the case . The court stressed that the evidence already collected in the case , including mechanoscopic and olfactory expert opinions , comparative hair analysis , testimonies of witnesses and an experimental reconstruction of the crime scene indicated a high probability that the applicant had committed the crimes . Moreover , a psychiatrist ’s examination and the observation of the applicant in a mental institution had been ordered by the court , as well as a genetic and chemical comparative analysis of available evidence . The court further added that the applicant had a previous criminal record .

The applicant submitted that his appeals against some of the above decisions were dismissed by ORG on DATE , DATE , DATE and DATE .

On DATE ORG lodged a bill of indictment against the applicant with ORG . The prosecutor requested to have CARDINAL experts and CARDINAL witnesses summoned to testify .

On DATE the first hearing in the applicant ’s case was scheduled for DATE ; however the start of the trial had to be postponed , since the applicant ’s counsel had asked the court to relieve him of his duties . The newly ex officio appointed lawyer informed the court that he was not able to fulfil his duties , as he had earlier been appointed as counsel of the auxiliary prosecutors – the victim ’s parents . ORG immediately appointed another lawyer at the request of the court .

On DATE the applicant ’s counsel requested that the composition of the court to hear the applicant ’s case be decided by the drawing of lots .

On DATE the court scheduled the first hearings for CARDINAL and DATE . On DATE a supplementary drawing of lots was necessary as one of the lay judges could not take part in the proceedings .

The first hearings before ORG were held on CARDINAL and DATE .

DATE and CARDINAL May CARDINAL ORG held CARDINAL hearings . On DATE the applicant requested the withdrawal of the presiding judge . His motion was dismissed by ORG on DATE .

DATE and DATE ORG held CARDINAL hearings . On DATE the applicant ’s detention on remand was extended until DATE .

On DATE the ORG found the applicant guilty as charged and sentenced him to DATE imprisonment . The judgment ran to CARDINAL pages .

The applicant , the prosecutor , as well as the auxiliary prosecutors , appealed .

On CARDINAL DATE the ORG quashed the judgment and remitted the case for re - examination to ORG . The proceedings are still pending . The applicant is still in detention in respect of the charges against him .

On DATE the applicant was sentenced to DATE and CARDINAL months’ imprisonment for double rape .

On DATE ORG upheld the first – instance judgment .

As it transpires from the ORG ’s submissions , which were not contested by the applicant , he was serving the sentence imposed DATE and DATE , as well as DATE and DATE .

As it further transpires from the ORG ’s submissions , which were not contested either by the applicant , DATE he was serving a term of imprisonment imposed on DATE by ORG in another set of criminal proceedings .

NORP Moreover , during the period between CARDINAL DATE and DATE the applicant was serving a term of imprisonment imposed by ORG on DATE for drunk driving .

The relevant domestic law and practice concerning the imposition of detention on remand ( aresztowanie tymczasowe ) , the grounds for its prolongation , release from detention and rules governing other , so - called “ preventive measures ” ( środki zapobiegawcze ) are described in the ORG ’s judgments in the cases of ORG v. GPE , no . CARDINAL , § § DATE , DATE and PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE .


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

András Sajó;Dean Spielmann;Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto

The applicant was born in DATE . When the application was lodged he was being held in FAC . He is currently being held under a semicustodial regime in FAC .

On DATE the applicant was remanded in custody .

NORP In a judgment of DATE ORG sentenced him to DATE imprisonment , of which DATE were suspended , for assault occasioning actual bodily harm , rape and false imprisonment accompanied by acts of torture , committed on DATE .

The applicant was granted a divorce on DATE . He provided the ORG with various judicial decisions given between DATE and DATE concerning his right of contact with his CARDINAL minor children .

While in prison the applicant submitted several requests for temporary leave of absence ( “ prison leave ” ) , which are the subject of the present case .

The applicant stated that he had submitted a request for prison leave to the Attorney General in DATE .

At the request of the counselling service ’s psychologist the applicant explained on DATE that he was requesting prison leave for DATE and had no objection to being escorted while on leave . He stated that the reason for the request was to complete certain administrative formalities , which he detailed as follows :

“ - go to a photographer or photo booth to obtain passport photos ;

- go to ORG to renew my driving licence ( medical certificate already obtained ) ;

- go to the ORG to renew my consular registration card ;

- go to see Mr [ B. ] at GPE police station , ORG , to pick up an envelope containing documents needed by a former client ;

- go to see the manager of [ B. ] bank in ORG ;

- go to the taxation office in ORG ;

- meet a group of friends in a restaurant near ORG ;

- go to my flat in Differdange to collect the remaining documents for the same client ;

- take some measurements for items I might make in the [ prison ] workshop ;

- go to LOC town hall for a personal interview with the mayor ;

- go to the home of Mrs [ S. ] in GPE to meet her husband ;

- go to my lawyer ’s office to hand over the missing documents for my former client ;

- if possible , go to the bookshop near [ S. ] ’s house . ”

In his letter , the applicant stated further :

“ ... Unfortunately , the civil damages are still far from being paid , as I have not even had enough funds to make a down - payment . At the moment I am still engaged in repaying my loans and other debts to the various authorities under the arrangements entered into with the legal service in order to avoid an unending series of seizures of my property . ... ”

On DATE a psychologist issued a certificate ( confirmed on DATE by a second psychologist ) stating that the applicant had begun a course of psychotherapy on DATE which had been discontinued on DATE for reasons beyond his control . The psychologist stressed that the applicant had been anxious to understand what had driven him to commit the offences and to do everything possible to avoid reoffending .

On DATE the Attorney General ’s representative sent a memorandum to the prison governor worded as follows :

“ ... please inform the prisoner PERSON

that by decision of ORG

[ the ] request for prison leave ... [ is ] refused in view of the risk of deportation ( an application was made to ORG on DATE , but no decision has yet been taken ) . There is also a risk that the prisoner might abscond , given that he has failed to reflect on his crime . Before being allowed any privileges he must begin to pay the civil party . ”

On DATE the applicant reiterated his request , stating that the reasons and the itinerary for the DATE ’s prison leave remained the same . On DATE his lawyer submitted arguments in support of the applicant ’s request and concluded as follows :

“ ... granting [ the applicant ] a DATE ’s prison leave during which he could begin to put his affairs in order with a view to leading an independent life [ outside ] prison , [ would ] not only aid [ the applicant ’s ] rehabilitation and reintegration into society , but [ would ] also enable him to start paying compensation to the civil party as quickly as possible . ... ”

On DATE the Attorney General ’s representative sent a memorandum to the prison governor containing the following passages :

“ ... please inform the prisoner PERSON

that by decision of ORG

the decision of CARDINAL DATE refusing his request for prison leave ... remains valid . ”

On CARDINAL DATE the applicant lodged an application with ORG ( tribunal administratif ) for judicial review of the decisions of ORG of DATE and CARDINAL March CARDINAL .

At a hearing held on DATE ORG raised of its own motion the question whether it had jurisdiction to examine the application for judicial review . The Government , which had not raised an objection alleging lack of jurisdiction , left the matter to the discretion of the court .

On DATE ORG ruled that it did not have jurisdiction to examine the application for judicial review , for the following reasons :

“ ... A distinction must be made between administrative measures relating to the treatment of prisoners in prison ( such as a decision to place them in a more secure part of the prison , and in particular imposing a strict confinement regime DATE see ORG ruling no . DATE ) , which are taken in the context of enforcement by the prison service , and decisions which may alter the nature or scope of a sentence handed down by the ordinary courts , which are to be classified as judicial rather than administrative decisions .

In the instant case it must be acknowledged that the granting or refusal of the privilege of prison leave constitutes a measure which alters the ‘ scope’ of the sentence imposed on the applicant by the ordinary court .

Hence , the CARDINAL decisions in question are judicial in nature .

Accordingly , bearing in mind their nature as identified above , the impugned decisions can not be the subject of an application to the administrative courts ... . ”

On DATE ORG ( cour administrative ) upheld this ruling , as follows :

“ The [ applicant ] submitted that the court erred in finding that it did not have jurisdiction to examine his application for judicial review , arguing that : no other remedy existed in respect of such refusal , with the result that section CARDINAL(CARDINAL ) of the Law of DATE on the organisation of the administrative courts should be applied ; the impugned decisions did not alter the scope of the sentence ; the court had denied him justice in breach of Article [ CARDINAL § CARDINAL ] of the [ Convention ] by depriving him of a fair hearing .

... The [ applicant ] ’s case concerns a request for prison leave , in other words , a decision which alters the nature of the execution of the sentence handed down by the ordinary courts and which should therefore be classified as a judicial rather than an administrative decision .

The expression ‘ the scope of the sentence ORG , used by the court , is not to be understood in the present case as the length of the sentence but as the manner of its execution in a broad sense .

The administrative court was therefore correct in ruling that it did not have jurisdiction to examine the application .

A finding by the administrative courts that they lack jurisdiction can not be construed as a declaration of unwillingness on their part to rule on the issue ; the allegation of a denial of justice should therefore be dismissed as unfounded .

Article [ CARDINAL § CARDINAL ] of the [ Convention ] is not applicable in relation to a body which has no power to rule on the merits . ... ”

On DATE the applicant submitted a third request for prison leave , in the following terms :

“ ... I have successfully attended several courses run by ORG ] and would like to continue with a view to obtaining the corresponding diplomas .

The diplomas concerned are in accounting and computer ( PC ) use . I completed the previous courses successfully , but for the sake of feasibility it is now essential for me to be able to attend the courses of the DATE session at ORG itself . ... ”

In a decision of CARDINAL DATE the request was refused on the ground that the applicant could attend courses in prison and that he had made no substantial efforts to date towards paying compensation to the victim . The decision also referred to the reasoning of the decision of CARDINAL DATE .

In a fourth request , submitted on DATE , the applicant observed , among other things , that he could not understand why , in view of the need for him to reintegrate into society , he had been refused permission to attend the final classes required in order to obtain the diplomas in accounting and computing . He added that the reason he had requested prison leave was to renew his identity papers and driving licence and make arrangements for the repayment of his debts to the various institutions and the civil party .

On DATE his request was refused for failure to give reasons .

On DATE a fifth request for prison leave ( not provided to the ORG ) was refused on the ground that there was a risk that the applicant would not return to prison .

On DATE a sixth request for prison leave ( not provided to the ORG ) was refused on the ground that the applicant had been making no efforts , in particular with regard to paying the civil damages , and was refusing to abide by the conditions imposed on him .

Following the refusal of this request , the applicant applied to the Attorney General ’s Department on CARDINAL occasions DATE and DATE . He requested assistance in putting in place a repayment plan appropriate to his circumstances and the demands of the civil party , and sought an explanation of the requirements he was expected to meet with a view to his reintegration in society , so that he could take steps to comply with them . On DATE the Attorney General ’s representative decided that he would not , as matters stood , reply to the various letters , which did not call for any comment .

On DATE the Attorney General acknowledged receipt of a request from the applicant for an interview and said that he would meet him during one of his forthcoming visits to the prison . The applicant claimed that the meeting had never taken place .

According to the case file , in DATE the applicant was transferred to a semi - custodial regime in FAC , where he carried on paid work as a cook . On DATE he started up a business as a sole trader .

Section CARDINAL of the PERSON of DATE on certain methods of execution of custodial sentences ( hereafter “ the DATE LAW ) lists the various arrangements which execution of a custodial sentence may entail :

“ The execution of a custodial sentence may entail CARDINAL of the following : execution in instalments , semi - custodial regime , prison leave , suspension of sentence , early release . ”

In the explanatory memorandum to the draft of the DATE Law , the purpose of the legislation is explained as follows :

“ ... the time seems right to provide a sound legal basis for arrangements for the execution of custodial sentences which , within certain limits , allow convicted prisoners to make trips outside prison or to serve their sentence in instalments , so that they can maintain or resume social and professional contacts . Since sentencing lost its expiatory character and took on an essentially sociological role with a neartherapeutic aspect , the efforts of the authorities responsible for the execution of sentences have been directed mainly at the social rehabilitation of prisoners and at helping them settle or resettle in a stable social environment . In striving to achieve this , it is important in particular to ensure that prisoners can maintain their family and social ties , where such exist , and to prepare them for release by enabling them , possibly by means of preparations for an occupation or profession , to find work and adapt to responsible life outside prison . ... ”

Section CARDINAL of the DATE PERSON defines prison leave as follows :

“ Prison leave shall consist of permission to leave prison either for part of DATE or for periods of TIME . The time shall count towards the length of the sentence . ”

Section CARDINAL of the DATE PERSON provides :

“ This privilege may be granted to prisoners who are domiciled or resident in the country , either for family reasons or to make preparations for their rehabilitation and reintegration into professional life , or on a trial basis with a view to their release on licence . ”

Section CARDINAL of the DATE PERSON provides that prison leave may be granted to prisoners convicted of a first offence once a third of their sentence has been served .

Under LAW , consideration must be given to the personality of the prisoner , his or her progress and the risk of a repeat offence .

NORP Under the terms of FAC of DATE laying down the arrangements for the granting of prison leave , such leave may be granted at the request of the prisoner concerned or his or her representative ( DATE ) ; the request must be made in writing , unless the prisoner is incapacitated or unable to write . The interval between periods of leave must be DATE , except in special circumstances ( Article CARDINAL ) . Where a request for prison leave is refused , no new request may be made within DATE , unless new evidence comes to light ( Article CARDINAL ) .

Section CARDINAL of the DATE PERSON states :

“ In the case of custodial sentences of over DATE ... the measures provided for by this PERSON ... shall be taken by the Attorney General or his or her representative in accordance with a majority decision of a board comprising , in addition to the Attorney General or his or her representative , a judge and a public prosecutor . ...

The board shall be convened by the Attorney General or his or her representative and shall be chaired by the judge .

With the exception of the Attorney General or his or her representative , the full members and their substitutes shall be appointed by ministerial order for a renewable DATE term . ”

Section CARDINAL of the Law of DATE on the organisation of the administrative courts provides as follows :

“ ( CARDINAL ) ORG shall rule on applications alleging incompetence , excess or misuse of authority and breaches of the law or procedures designed to protect private interests , lodged in respect of any administrative decision for which no other remedy exists under the laws and regulations .

( CARDINAL ) Unless otherwise provided by law , an appeal may be lodged with ORG against the decisions of ORG referred to above . ”

In his activity report on DATE from DATE to CARDINAL DATE the ORG outlined the terms of ORG DATE , the relevant parts of which read as follows :

“ ... the decision - making procedures regarding the execution of sentences , which are currently the sole responsibility of the Attorney General ’s representative or ORG ... , are no longer compatible with the adversarial principle and the right of appeal before an independent and impartial body ;

... along the lines of what has been done in other countries , and in particular in GPE , a thorough overhaul of the system of execution of sentences is called for .

... [ it is necessary ] to review the organisation of the prison service as a whole and to consider creating the office of post - sentencing judge and an autonomous ORG which is separate from the Attorney ORG .

... ORG would have a post - sentencing judge ; for appeal cases before ORG there would be a post - sentencing adviser .

These judicial officers would be responsible for ruling on all applications submitted to them under LAW , applications for transfer from [ the closed prison ] to the [ semi - open prison ] , requests for prison leave ...

... The adversarial procedure would be triggered by an application to be lodged by the prisoner or his or her lawyer . After hearing the public prosecutor ’s address and the submissions of the prisoner , assisted by his or her representative if appropriate , the post - sentencing judge would give a decision against which the prisoner and the public prosecutor could appeal within a period to be specified . ... ”

In his activity report on DATE from DATE to CARDINAL DATE the ORG described the following developments :

“ ... On DATE the new Minister of ORG proposed a meeting with the ORG with a view to discussing the action to be taken in response to the latter ’s recommendation . This invitation followed the undertaking given by the Government to examine in detail the various recommendations made by the ORG concerning the functioning of the judicial system and in particular the introduction of a post - sentencing judge . ...

On DATE the Minister of ORG outlined to the press the planned reform of the prison system .

The ORG welcomes the initiative taken by the Minister towards a thorough reform of the prison system aimed at creating a prison environment conducive to the social rehabilitation of prisoners with a view to their future reintegration into society .

The ORG welcomes the Minister ’s intention to act upon his recommendation ...

As regards the execution of sentences and more specifically the decisions falling within the remit of the representative responsible for the execution of sentences or ORG , the ORG intends to pursue the idea of instituting a post - sentencing judge .

The ORG notes that in a recent statement in a GPE DATE newspaper , the Minister spoke in favour of handing over to a judicial body some of the powers currently exercised by the Attorney General ’s representative responsible for the execution of sentences or by ORG . ”

The relevant parts of the Recommendation read as follows :

“ ORG , under the terms of Article CARDINAL.b of the Statute of the Council of Europe ,

Stressing that the enforcement of custodial sentences and the treatment of prisoners necessitate taking account of the requirements of safety , security and discipline while also ... offer[ing ] ... treatment programmes to inmates , thus preparing them for their reintegration into society ;

Endorsing once again the standards contained in the recommendations of ORG , ... and in particular ... Rec(CARDINAL)CARDINAL on the management by prison administrations of life sentence and other long - term prisoners ;

CARDINAL As soon as possible after such admission , reports shall be drawn up for sentenced prisoners about their personal situations , the proposed sentence plans for each of them and the strategy for preparation for their release .

CARDINAL.CARDINAL Sentenced prisoners shall be encouraged to participate in drawing up their individual sentence plans .

CARDINAL Such plans shall as far as is practicable include :

d. preparation for release .

CARDINAL There shall be a system of prison leave as an integral part of the overall regime for sentenced prisoners .

CARDINAL.CARDINAL Sentenced prisoners shall be assisted in good time prior to release by procedures and special programmes enabling them to make the transition from life in prison to a law - abiding life in the community .

CARDINAL In the case of those prisoners with longer sentences in particular , steps shall be taken to ensure a gradual return to life in free society .

Bearing in mind the relevance of the principles contained ... in particular [ in ] :

– Recommendation No . R ( CARDINAL ) CARDINAL on prison leave ; ...

For the purposes of this recommendation , a ... long - term prisoner is CARDINAL serving a prison sentence or sentences totalling DATE or more .

The aims of the management of ... long - term prisoners should be :

– to increase and improve the possibilities for these prisoners to be successfully resettled in society and to lead a law - abiding life following their release .

CARDINAL b. Particular efforts should be made to allow for the granting of various forms of prison leave , if necessary under escort , taking into account the principles set out in Recommendation No . R ( CARDINAL ) CARDINAL on prison leave .

The relevant parts of the ORG are worded as follows :

Considering that prison leave is one of the means of facilitating the social reintegration of the prisoner ;

Having regard to experience in this field ,

Recommends the governments of member states :

to grant prison leave to the greatest extent possible on medical , educational , occupational , family and other social grounds ;

to take into consideration for the granting of leave :

- the nature and seriousness of the offence , the length of the sentence passed and the period of detention already completed ,

- the personality and behaviour of the prisoner and the risk , if any , he may present to society ,

- the prisoner ’s family and social situation , which may have changed during his detention ,

- the purpose of leave , its duration and its terms and conditions ;

to grant prison leave as soon and as frequently as possible having regard to the aforementioned factors ;

to grant prison leave not only to prisoners in open prisons but also to prisoners in closed prisons , provided that it is not incompatible with public safety ;

to inform the prisoner , to the greatest extent possible , of the reasons for a refusal of prison leave ;

to provide the means by which a refusal can be reviewed ;


Violation of Art. 2;Violation of Art. 3;Violation of Art. 5;Violation of Art. 13

Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska

The applicant was born in DATE . She resides in the town of LOC , in GPE . The applicant is the wife of PERSON , born in DATE .

At the material time , the applicant and PERSON resided at CARDINAL , FAC in LANGUAGE . PERSON brother , PERSON , and his family resided at the same address .

PERSON had not participated in illegal armed groups since the authorities launched the counter - terrorist operation in GPE in DATE .

In DATE PERSON , who had been the speaker of ORG ( “ the Parliament of GPE of GPE ” ) in DATE , was abducted from his house and disappeared ( see PERSON v. GPE , no . CARDINAL/CARDINAL , DATE ) .

According to the applicant , PERSON previous involvement in political activities and his ensuing disappearance provoked a heightened interest in their whole family on the part of the domestic authorities . In particular , members of the military commander ’s office of the LOC often came to their house , searched it and checked the family PERSON identity papers .

PERSON had a silver - grey GPE with licence plate no . A CARDINAL BB CARDINAL . He had acquired it in DATE from his relative , PERSON , in exchange for another car .

Ruslanbek PERSON was QUANTITY tall .

On DATE PERSON drove his GPE to PERSON to take a TV set to a repair shop . He gave a lift to ORG A. , who also needed to go to PERSON . PERSON was wearing black velvet trousers and a black shirt with white stripes .

It appears that at a certain moment PERSON and PERSON . A. parted and the former drove alone back to PERSON .

At TIME on DATE PERSON car was stopped at the checkpoint of the NORP federal forces located at the intersection of the GPE motorway and FAC , in the vicinity of the village of ORG . The checkpoint was located in the middle of a roundabout . The servicemen at the checkpoint always requested that the vehicles slowed down while passing through . Moreover , there were many holes in the road which also made the drivers slow down while they were passing the area .

At TIME on DATE the minibus in which ORG was going to PERSON approached the above - mentioned checkpoint . From the minibus PERSON saw that a young man had stopped his silver - grey GPE at the checkpoint and was heading towards the hatch at which the servicemen usually registered the passing drivers . The man was wearing dark trousers and a dark shirt and was QUANTITY tall . A white PERSON vehicle was stationed at the checkpoint nearby . At the moment when the man approached the hatch to present his identity papers for registration , CARDINAL servicemen rushed towards him . CARDINAL servicemen twisted his arms behind his back and the third serviceman handcuffed him . They then took the man inside the checkpoint which was surrounded by blocks and slabs made of concrete .

M.E. immediately wrote down the numbers on the LOC ’s licence plate which he was able to see : CARDINAL BB CARDINAL . He also asked the minibus driver to stop but the latter refused , saying that if he did so the servicemen could fire on them . According to ORG , his daughter and other passengers of the minibus witnessed the abduction of the man from the LOC .

At TIME the same day S.T. , PERSON and PERSON , who were driving from PERSON to PERSON , approached the above - mentioned checkpoint . The QUANTITY men were residents of PERSON and personally knew PERSON . They also knew that he had a silver - grey GPE and had seen PERSON drive it on numerous occasions . When the car with the CARDINAL men approached the checkpoint , they saw the silvergrey PERSON , which PERSON immediately recognised as the vehicle belonging to PERSON because he remembered its licence plate numbers . Immediately after that the CARDINAL men saw CARDINAL servicemen get inside PERSON car . A red - haired serviceman who was QUANTITY tall took the driver ’s seat . The second serviceman , who was taller and had a beer can in his hand , took the passenger seat . The CARDINAL men also noticed an ORG which was parked at the checkpoint . Having discussed what they had seen , the CARDINAL men decided that , although the NORP looked like PERSON car and PERSON claimed that it had the same licence plates , they must have been mistaken . They did not stop and drove on . TIME they learnt that PERSON had not returned home because he had been abducted at the checkpoint .

According to ORG , on DATE , having arrived in PERSON , he went to the town centre where taxi drivers usually gathered . He asked them whether they knew to whom the car with the licence plate he had written down might belong . One of the drivers told him that it could have been owned by a certain resident of ORG . ORG went to that village but did not find the car owner . He returned to PERSON and continued enquiring about the owner of the NORP . According to PERSON , a boy told him that he knew the owners of the car . The boy immediately called somebody over the phone but was unable to obtain the necessary information . ORG then gave him his address in PERSON , so that the relatives of the abducted man could contact him . On TIME the PERSON came to visit PERSON and he told them about the incident he had witnessed at the checkpoint . From the conversation with the PERSON , ORG inferred that the abducted person was PERSON .

According to the applicant , in TIME on DATE she called her husband on his mobile phone but he did not answer . She waited for him until TIME and then sent her son to Kh . A. to ask for news of her husband . However , Kh . A. was absent and the applicant ’s son returned home without any information .

Later the same evening the applicant learnt that ORG had received a message from an acquaintance that servicemen at the FAC checkpoint had apprehended a person driving PERSON . A. ’s GPE . That person apparently did not know that Kh . A. and PERSON had exchanged cars and that the PERSON had been owned by the applicant ’s husband since that time . Kh . A. went to see that man who subsequently turned out to be ORG The latter described to ORG A. in detail the circumstances of the Ruslanbek PERSON ’s abduction . On an unspecified date the applicant met PERSON Having talked to him in person and heard his description of the abducted man , she concluded that the person abducted at the ORG checkpoint on DATE had been her husband .

The applicant has had no news of PERSON since DATE .

The above account of the events is based on the information contained in the applicant ’s application form ; the applicant ’s written statement of CARDINAL DATE ; a written statement by ORG made on DATE ; written statements by ORG and PERSON made on DATE and a written statement by PERSON made on DATE .

The Government did not challenge the facts , as presented by the applicant . They claimed that the domestic investigation into the disappearance of PERSON had obtained no evidence that he had been abducted during a security operation .

On TIME the applicant contacted unspecified local authorities by phone and complained to them about the abduction of her husband .

On DATE the applicant filed written complaints about the abduction of her husband with the prosecutor ’s office and the local police . She submitted that she had not kept copies of those complaints .

NORP Over DATE the applicant complained about PERSON apprehension to various ORG authorities , seeking assistance in establishing his whereabouts , but did not receive any meaningful information in that respect .

On DATE ORG replied to the applicant that they had examined her request for assistance in the search for PERSON and had forwarded it to the prosecutor of GPE .

By a letter of CARDINAL DATE the prosecutor ’s office of GPE forwarded the applicant ’s complaint about the abduction of her husband to the prosecutor ’s office of LOC ( “ the district prosecutor ’s office ” ) .

On DATE the district prosecutor ’s office instituted a criminal investigation into the abduction of PERSON under LAW ( abduction ) . The case file was assigned the number DATE .

On DATE the district prosecutor ’s office granted the applicant victim status in the proceedings in case no . DATE . The applicant was notified of the decision on DATE . The decision stated , among other things , that on DATE PERSON had driven to PERSON in his PERSON , licence plate no . A CARDINAL BB CARDINAL , in order to take a TV set to a repair shop . When he was returning back to PERSON , unidentified armed persons in camouflage uniforms driving a beige PERSON had stopped his car on a roundabout in the vicinity of ORG . They had abducted PERSON and taken him to an unknown destination .

It appears that on an unspecified date the investigation in case no . DATE was suspended . There is no indication that the applicant was informed of that decision .

By a letter of DATE the district prosecutor ’s office informed the applicant that on an unspecified date it had resumed the investigation in case no . DATE and that operational and search measures aimed at establishing PERSON whereabouts and identifying the perpetrators were under way .

On DATE the applicant complained to the district prosecutor ’s office that the investigation into the abduction of her husband had yielded no results . She requested that the investigation be resumed if it had been suspended and sought access to the case file and permission to make copies from it in order to have sufficient information for challenging before the courts the decision to suspend the investigation .

On DATE the district prosecutor ’s office replied to the applicant saying that it had taken all investigative steps which could have been taken in the absence of there being anyone to be charged with the abduction of PERSON and that it thus found no grounds to resume the investigation . As regards the applicant ’s request for access to the case file , she would be provided access to the documents drawn up with her participation .

Despite the ORG ’s specific requests , the ORG failed to produce most of the documents from criminal case file no . DATE , furnishing only copies of the decisions to open , some of the decisions to suspend and resume the investigation , several witness statements and the investigating authority ’s requests for information to various ORG bodies on the missing man ’s whereabouts or his possible arrest or detention and some of their replies to them . The Government did not provide any explanation for their failure to comply with the ORG ’s request . Some of the documents submitted by the Government were legible only in part . The information contained in those documents may be summarised as follows .

When giving notice of the present application to the respondent Government , the ORG specifically requested them to provide copies of the applicant ’s complaints about the abduction of her husband , which had prompted the opening of the investigation . In their observations the ORG stated that the district prosecutor ’s office had received the applicant ’s complaint about the abduction of her husband on DATE , without providing any further information . The bulk of the documents submitted by them contained several documents which appear to be relevant to the matter and can be summarised as follows .

From the documents disclosed by the Government it can be seen that on DATE the applicant complained about the abduction of her husband to the Ombudsman of GPE and that on an unspecified date in DATE her further complaint about his abduction was received by the President of GPE . In both applications the applicant submitted that she had previously complained about the kidnapping of PERSON to a number of ORG authorities , including ORG of the ORG ( ROVD ) and ORG of the Interior , but those authorities had disregarded her submissions .

By a decision of CARDINAL DATE a prosecutor of the district prosecutor ’s office extended for DATE the time - limit for the preliminary examination of the applicant ’s complaint about the abduction of her husband . The decision stated that the prosecutor had received the applicant ’s complaint about the abduction of her husband on DATE .

The Government also provided a copy of the applicant ’s complaint to the Shalinskiy ROVD about the abduction of PERSON , dated DATE .

On DATE the district prosecutor ’s office instituted an investigation into the abduction of PERSON under LAW of LAW ( aggravated kidnapping ) . The decision stated , among other things , that on DATE PERSON had gone in his GPE , licence plate no . A CARDINAL BB CARDINAL , to ORG to take his TV to a repair centre . On DATE , while PERSON was driving from PERSON to the town of PERSON , unidentified armed persons in camouflage uniforms , who had been driving a beige PERSON , had stopped his car at the roundabout near ORG , had arrested him and taken him to an unknown destination .

On DATE the investigators interviewed GPE as a witness . He stated that on DATE he had learnt that on the same day PERSON had been abducted by members of the security forces at the checkpoint near ORG . In particular , armed men who had introduced themselves as officers of ORG ( “ the ORG ” ) had stopped his car at the checkpoint , put him into their white armoured PERSON and taken him in the direction of PERSON . They had also taken PERSON car with them . The arrest had been carried out in the presence of servicemen of the checkpoint .

GPE , who was interviewed on DATE , submitted that she had learnt of the abduction of PERSON at the checkpoint near ORG from GPE and confirmed his account of the events .

On DATE the investigators interviewed ORG as a witness . He stated that in DATE he had been stationed in GPE and that on DATE he had been on duty at checkpoint no . CARDINAL at the intersection of the roads between PERSON and Mesker - Yurt . At TIME a beige PERSON had arrived at the checkpoint ; ORG did not remember the figures on its licence plate . CARDINAL armed persons in camouflage uniforms had emerged from the vehicle . They had been NORP ; CARDINAL of them had had an NORP appearance . They had introduced themselves as officials of the ORG and asked for assistance in arresting a man driving a Volga . At TIME had stopped the vehicle which interested the men , checked the driver ’s papers and sent the driver to the registration point at the checkpoint . ORG could not remember the man ’s name but would have been able to identify him . While the man had been heading to the registration point , the ORG officers had approached him and asked him to follow them to the PERSON . The man had got into their car and they had got inside it after him . CARDINAL of the ORG officers had got into the man ’s GPE and both vehicles had driven off in the direction of PERSON . The convoy had been followed by a white VAZ-CARDINAL vehicle , also driven by an ORG officer . ORG had not asked the ORG officers why they were arresting the man in the GPE .

On DATE the investigators interviewed PERSON as a witness . He stated that he had been stationed in GPE since DATE and that in DATE he had been on duty , together with other servicemen from his unit , at the intersection of the roads between PERSON , PERSON - Yurt and Grozny . At TIME on DATE a beige PERSON had arrived at the checkpoint and CARDINAL men had emerged from it . They had introduced themselves as ORG officers and had produced the relevant certificates indicating that they had been serving in GPE . They had also said that they were there to arrest a certain person but that they did not know when exactly he would appear and that that information was to be communicated to them over the phone . Having spent DATE at the checkpoint they had left in the direction of GPE .

On DATE the investigators interviewed the applicant as a witness . She stated that on the evening of DATE a woman had told her that armed men in camouflage uniforms had abducted her husband at the checkpoint near ORG . On DATE he had gone to PERSON to take a TV set to a repair shop . While returning to PERSON , he had been stopped at the checkpoint near ORG . There , while on his way to the registration point , ORG officers from PERSON had arrested him , put him into their white PERSON and driven off in the direction of PERSON . Servicemen at the checkpoint had witnessed the arrest . After the abduction the applicant had applied to ORG in GPE but had received no reply from that authority .

On DATE the applicant was granted victim status in the proceedings in case no . DATE . While being interviewed on DATE , she confirmed her account of the events given on DATE .

On DATE the investigators interviewed ORG as a witness . He submitted that on DATE he had been going in a minibus to PERSON . At the checkpoint in LOC he had noticed a man who was standing near a GPE with licence plate no . A CARDINAL BB CARDINAL . The man had been approached by CARDINAL persons in camouflage uniforms . They had twisted his arms and had led him to a light - coloured armoured PERSON , parked nearby and put him inside it . ORG had not seen what had occurred afterwards because the driver of the minibus had told him that he could not stop at the checkpoint . However , ORG had written down the licence plate number of the LOC in order to tell the man ’s relatives of his arrest , should he find them . Once he had arrived in PERSON , PERSON had approached taxi drivers and asked them if they knew who the owner of the vehicle was . They had promised him to ask further and had taken his telephone number and his home address . On TIME the PERSON had come to his house and he had told them about what he had seen at the checkpoint . CARDINAL of the women had told ORG that she was the arrested person ’s wife .

GPE , interviewed as a witness on DATE , stated that she had learnt of the abduction of PERSON from his relatives on TIME DATE .

DATE . On DATE the investigators interviewed PERSON as a witness . He stated that he occupied the post of the deputy head of ORG of the ORG ( “ the ORG ROVD ” ) and that on DATE he had examined the ROVD materials concerning the abduction of PERSON at the checkpoint in ORG . It followed from those materials and , in particular , the statements of the servicemen who had been on duty at the checkpoint , that the men who had arrested PERSON had introduced themselves as ORG officers from GPE . GPE had subsequently sent all the materials to the district prosecutor ’s office .

GPE and PERSON , interviewed as witnesses on DATE and DATE , stated that they had learnt of the abduction of PERSON from his relatives .

On DATE the investigators interviewed Zh . PERSON . as a witness . He stated that on DATE he had been in command of the unit of ORG who had been on duty at the checkpoint near GPE and that his unit also included servicemen A. and ORG The duties of the servicemen from his unit included checking the persons , vehicles and cargo passing through the checkpoint and securing public order in the area . A unit of servicemen of ORG from Primorsk ( “ the ORG unit ” ) was also in charge of the checkpoint together with Zh . Kh . ’s unit . At TIME on DATE a white PERSON had arrived at the checkpoint . Zh . PERSON . had not memorised its licence plate numbers . CARDINAL heavily built armed men in camouflage uniforms had emerged from the vehicle . They had been aged DATE ; CARDINAL of them had had a beard . CARDINAL of them had entered the registration point . At TIME Zh . PERSON . had left for lunch . When he had returned , the ORG officers had told him that the armed men had produced identification to show that they were ORG officers and had arrested at the checkpoint a driver of a NORP whom they had put into their PERSON . CARDINAL of the ORG officers had got inside the GPE and the CARDINAL vehicles had left .

U.V. , interviewed on DATE gave an account of the events identical to that of Zh . PERSON .

While being interviewed on DATE , the applicant confirmed her account of the events concerning the abduction of her husband and stated that at DATE a certain ORG had told the mother of PERSON that the latter was in GPE “ in a very bad state ” . The applicant had not met ORG , had not known where he lived and he had contacted only her husband ’s mother , who had died in DATE .

On DATE the investigators interviewed Z.A. as a witness . She stated that she had learnt of the circumstances of the abduction of PERSON from residents of PERSON who had passed by the checkpoint near LOC .

DATE and DATE the investigators requested a number of ORG authorities , including the ORG , ORG , ORG ( “ the UGA ” ) and prosecutor ’s offices of various districts in GPE to provide information on PERSON whereabouts , his possible arrest by those ORG authorities or any special operations conducted with a view to arresting him . It appears that no relevant information was obtained in reply .

On DATE the ORG informed the district prosecutor ’s office that from the information received by them from ORG of ORG of ORG in LOC it followed that at TIME on DATE ORG officers had arrested PERSON at checkpoint no . CARDINAL near FAC with a view to verifying his possible involvement in illegal armed groups and had taken him away in his GazCARDINAL vehicle , licence plate no . A CARDINAL BB PERSON . The letter also stated that PERSON was the brother of a rebel warlord PERSON .

On DATE ORG of the ORG informed the investigators that ORG located in GPE had been closed down on an unspecified date and that the former authority could not provide them with the information requested .

On DATE the investigation in case no . DATE was suspended owing to the failure to identify the perpetrators .

On DATE the deputy prosecutor of GPE set aside the decision of DATE as unfounded and premature . The decision stated , among other things , that the investigators had failed to interview the head of the PERSON , who had stated in his letter of DATE that PERSON had been arrested on DATE at the checkpoint in ORG by ORG officers from GPE . Moreover , the investigators had not interviewed a certain PERSON . , from whose explanations it followed that PERSON had been arrested by ORG officers . They had likewise failed to interview all relatives and neighbours of PERSON , with whom he could have been staying .

On DATE the investigation was suspended owing to the failure to identify those responsible for the abduction .

On DATE the prosecutor of the Shalinskiy District set aside the decision of DATE as premature and unfounded and ordered that the investigation be resumed .

On DATE the investigation in case no . DATE was suspended owing to the failure to identify the persons implicated in the abduction of the applicant ’s husband .

On DATE the investigation in case no . DATE was resumed and unspecified instructions were given to the investigators with a view to identifying the perpetrators .

According to the Government , the investigation in case no . DATE is still pending .

On DATE the ORG of GPE granted the applicant ’s claim and declared PERSON a missing person . The judgment became final on DATE .

For a summary of the relevant domestic law see PERSON and PERSON GPE ( no . CARDINAL , § § CARDINAL , CARDINAL DATE ) .


Preliminary objections dismissed (Article 35-1 - Exhaustion of domestic remedies;Article 35-3 - Ratione materiae;Ratione temporis);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award;Pecuniary damage - claim dismissed

André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy

The applicant was born in DATE .

On DATE the applicant , in the presence of numerous witnesses , was hit by a car on a pedestrian crossing . He sustained grievous bodily injuries and was diagnosed , inter alia , with serious head injury , concussion , spinal cord haematoma , a broken lower jaw , and other serious injuries . From that time on , and until his death on DATE , he was severely disabled . In particular , DATE he was in a coma and later he had been suffering from persistent after - effects of the head injury , was unable to take care of himself and in DATE was declared legally incapable by the court .

On DATE ORG of ORG of ORG ( слідчий відділ ORG УМВС України в м. Харкові ) ( hereinafter “ the ORG ” ) instituted criminal proceedings against the driver , PERSON , for a violation of traffic rules .

On DATE the applicant ’s mother was declared a victim of the alleged crime , since the applicant was a minor and had serious health problems .

On DATE the investigation was completed and the case was transferred to the Frunzenskyy ORG , ORG .

On DATE the case was returned by the court for additional investigation .

On DATE ORG terminated the criminal proceedings in the case for absence of proof of PERSON ’s guilt .

On DATE the ORG quashed this decision .

On DATE ORG terminated the criminal proceedings on the same grounds as before .

On DATE this decision was quashed by ORG and the case was sent for further investigation .

On DATE the investigation was completed and the case was transferred to ORG , ORG . It was later transferred to ORG , also ORG .

On DATE the court returned the case for further investigation .

On DATE ORG , upon an application for review lodged by ORG , quashed the decision of CARDINAL DATE and transferred the case to ORG for consideration on the merits .

On DATE the latter court returned the case for further investigation .

On DATE the ORG of Appeal ( formerly ORG ) upheld this decision .

On DATE the case was sent back to the court after additional investigation .

On DATE ORG returned the case for further investigation .

On DATE the case was transferred for investigation to ORG ( слідче управління ORG області ) .

By a letter of DATE ORG informed the applicant ’s mother that , in order to clarify inconsistencies in previous expert conclusions , a new technical forensic examination of PERSON ’s car had been ordered . It stated that it would be conducted in DATE .

On DATE the investigation was terminated and the case transferred to ORG for further transfer to a court .

On DATE the case was sent back to ORG .

On DATE the case was transferred to ORG of ORG of GPE in order to determine its territorial jurisdiction .

On DATE PERSON died .

On DATE ORG terminated the criminal proceedings on account of PERSON ’s death .

No copies of the above decisions were submitted by the parties . Copies are available only of the decisions of CARDINAL DATE and DATE .

On DATE the applicant ’s mother instituted proceedings in ORG , ORG , against LOC of GPE and against ORG of ORG , ORG , claiming various payments allegedly due to the applicant and compensation for non - pecuniary damage . On DATE the court dismissed the applicant ’s mother ’s claims . On DATE ORG upheld this decision . No appeal was lodged on points of law .

According to LAW of DATE a driver , who , having breached the rules of road safety or of operation and maintenance of his vehicle , has caused a human death or inflicted grievous bodily harm , may be divested of his driver ’s licence and sentenced to a term of imprisonment of DATE . Article CARDINAL of LAW of GPE of DATE , which replaced the above provision , reduced the maximum term of imprisonment for the same offence to DATE .

The relevant provisions of LAW and LAW GPE can be found in the judgment in the case of GPE v. GPE ( no . CARDINAL , § § DATE , DATE ) .

The relevant provisions of LAW of GPE and LAW GPE can be found in the judgment in the case of PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .


SCHWEIZERISCHE RADIO- und FERNSEHGESELLSCHAFT (SRG) v. SWITZERLAND

The applicant association , ORG , is an association registered with ORG in GPE in GPE . Before the Court it is represented by PERSON , a lawyer practising in GPE .

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

The applicant association broadcasts a regular television programme “ ORG ” ( “ Pennywatcher ” ) dealing with consumer problems , money and work . The magazine “ K - Tip ” accompanies the television programmes .

The editors of “ ORG ” intended to broadcast on DATE in a programme lasting TIME , inter alia , a contribution on medicaments and in particular on the side - effects of multi - component painkillers , for instance , that such drugs could themselves induce headaches . In the contribution there was to be a short film showing a fictitious person GPE who , after waking up with a headache , met a doctor in the bathroom with whom he talked about these medicaments . An article published in various newspapers on DATE announced the programme as follows :

“ ORG who has taken too much histamine wakes up with a ‘ hangover’ . As usual he takes a ‘ C .- pain’ tablet . However , precisely this painkiller is not recommended by critical doctors . It has too many different active substances . ”

The W .- company , which produced the “ C .- pain ” medicament , obtained on DATE , DATE , from the single judge GPE of ORG ( ORG ) a super - provisional order ( superprovisorische GPE ) which prohibited the “ PERSON “ programme or the “ K - Tip ” magazine

“ to call in question or attack the painkiller ‘ C .- pain’ alone or as an exemplary representative of an entire category of medicaments without a representative comparison of other painkillers ; ( and ) to comment the present order proceedings in the context of a ‘ ORG programme . ”

On TIME the programme was broadcast as follows :

A film showed ORG waking up with a headache and going to the bathroom in order to fetch a medicament . At this stage , a grey curtain was superimposed on the action for a period of TIME , and the sound was turned off . The viewer was aware of a dialogue behind the curtain between GPE and a second person . In the meantime , the following text , accompanied by CARDINAL scissors , appeared on the screen :

“ Super - provisional order : The broadcasting of this part of the film on ‘ C .- pain’ is prohibited DATE

ORG , ( GPE ) GPE . ”

The film continued with the picture of a doctor saying “ think about it ! ” . A voice then stated “ no medicaments with several components ! ” The next part of the film showed ORG suffering from diarrhoea after having taken too many laxatives . The doctor appeared again , and ORG asked him for a new medicament , which the doctor refused , prescribing him black tea instead . A further sequence of the film concerned tranquillisers .

At the end of the film the moderator made the following comment :

“ You have seen , we were not allowed to broadcast a sequence on ‘ C .- pain’ , as the producer , the W .- company , brought this about by means of a super - provisional order . ”

On DATE the “ K - Tip ” magazine published a list of CARDINAL medicaments , among them “ C .- pain ” , which it did not recommend , CARDINAL medicaments which were “ ok ” , and CARDINAL homeopathic products .

On DATE ORG converted the super - provisional order into a provisional order , while granting the W .- company a time - limit of DATE to institute court proceedings against the applicant association .

The W .- company then filed an action with ORG ( ORG ) of the GPE of GPE , requesting a prohibition of any statement concerning “ C .- pain ” as well as damages exceeding CHF CARDINAL from the applicant association .

In the ensuing proceedings , the applicant association submitted , inter alia , that it had chosen to mention “ C .- pain ” in the broadcast since the latter was the most widely used product of the group in GPE , and had been at the centre of a large publicity campaign . Moreover , the film , which had clearly stated that the problem lay with all multi - component products , had intended to show the importance of medical supervision when taking such products , rather than demonstrating particular deficiencies of “ C .- pain ” .

On DATE ORG issued a partial judgment in which it upheld the action , prohibiting the applicant association from calling in question , or attacking , in its broadcasts the medicament “ C .- pain ” alone or as an exemplary representative of an entire category of medicaments . The judgment furthermore found that the broadcast of DATE was unlawful and breached LAW insofar as it related to the judicial order . In its judgment , the court stated inter alia :

“ In the court ’s opinion the exclusive and negative mention of a single medicament , which can be reproached for nothing else than belonging to a particular group of medicaments , breaches the principle of good faith . ... In order for the ‘ Kassensturz’-viewer not to obtain and keep the impression that the particular product is the sole issue , it must at least clearly transpire from the broadcast that ( and why ) the product in question was adduced as an example of a particular category of products . In order to avoid that the television viewer obtains the impression of incorrect facts , it is probably necessary in the individual case to mention by name all equivalent products , since otherwise the affected party will , in its position as a scapegoat , suffer disproportionate negative market results ... ”

Insofar as the judicial order itself had been mentioned in writing and orally in the programme of DATE , the judgment continued :

“ It furthermore breaches the principle of unfairness ( Lauterkeit ) mentioned in the general clause in LAW ( ORG über den unlauteren PERSON ) and will create incorrect impressions with the viewer if a product and its producer - the latter contesting ( as explained above ) with legal means that he is being CARDINAL - sidedly pilloried ( PERSON ) - are mentioned by name in the manner at issue in a much noticed consumer programme such as ‘ ORG . The viewer expects the DATE pillorying of inferior goods , dubious services and deceiving market conduct . He will now obtain the incorrect impression that a producer knew how to obtain , with the assistance of a judge ( named in person and belonging to the social - democratic party ) , the prohibition of a report on his dubious goods . The impression that the plaintiff with his product ‘ C .- pain’ had ( as the CARDINAL among the producers of painkillers ) something bad to hide , calling for a contribution of ‘ ORG , is further reinforced by the fact that the reason for the judicial prohibition is not mentioned . Thus , the statement is missing that ‘ C .- pain’ is CARDINAL of CARDINAL combination products and CARDINAL of CARDINAL combination - pain - killers with caffeine additives , respectively , and that its exemplary and exclusive mention as a medicament , with a warning not to take it , was seen by the judge as a breach of unfair competition ... It was possible without any difficulty to show in the same film passage ... the preferred CARDINAL - component - products as a group , without mentioning CARDINAL particular product . ”

ORG concluded that the negative presentation of the product “ C .- pain ” as well as the manner in which the remedy filed had been commented upon , served to jeopardise the market position of the W.company , though it considered that it would decide in a subsequent judgment on the request for damages of the W .- company .

The applicant association ’s appeal ( GPE ) and public law appeal ( staatsrechtliche Beschwerde ) were rejected by ORG on DATE , inter alia , as the judgment of ORG was not final .

In the meantime , ORG of the GPE of GPE ordered the preparation of an expert opinion by an expert of the pharmaceutical industry in respect of the damages suffered by the GPE .- company . This opinion , comparing in detail the sales of various medicaments over various periods of time and in particular the drop in sales suffered by the W .- company , was submitted on DATE .

Thereupon proceedings were resumed before ORG which by judgment of CARDINAL DATE awarded the GPE .- company damages amounting to CHF CARDINAL .

The applicant association ’s appeal against this decision was dismissed by ORG on DATE , the judgment being served on DATE . ORG , which considered that the prohibitions at issue were based on Sections CARDINAL and CARDINAL § CARDINAL ( a ) of LAW , stated , inter alia :

“ In order to warn about the possible risks of a particular category of goods it is neither necessary nor adequate to mention or emphasise particular competitors or their products as compared with all other products with the same characteristics . To the contrary , it will contradict the aim of objective information if the impression is created that corresponding risks would only arise in the case of some of these goods , since in certain circumstances this may even prompt the consumers to switch to other goods of the same category with the same negative characteristics . Neither the public function of the media nor the economic interests in raising the number of copies published or of television viewers serve to justify the disparaging of individually named competitors or their products under the pretext of general information in the public interest , as long as there are no particular characteristics of specific products or there is no conduct of particular competitors . ”

Super - provisional orders may be ordered in case of urgency without hearing the opposing party . They will become obsolete if they are not confirmed by a subsequent provisional order which in turn , and upon an action , may become the object of a regular court judgment .

The pertinent provisions of LAW of DATE read as follow :

“ Section CARDINAL

This Act is intended to guarantee , in the interests of all the parties concerned , fair , undistorted competition .

Section CARDINAL

Any conduct or commercial practice shall be unfair and illegal if it is deceptive or in any other way offends the principle of good faith and if it affects relations between competitors or between suppliers and customers .

Section CARDINAL

A person acts unfairly if , in particular ,

( a ) he denigrates others or the goods , work , services , prices or business of others by making inaccurate , misleading or unnecessarily wounding statements ; ...

Section CARDINAL

“ CARDINAL . Anyone who through an act of unfair competition sustains or is threatened with damage to his goodwill , credit , professional reputation , business or economic interests in general , may apply to a court :

( a ) to prohibit the act if it is imminent ;

( b ) to order that it cease , if it is still continuing ;

( c ) to declare it unlawful , if the interference it has caused persists .

He may also , in accordance with LAW , bring an action in damages and for reparation of non - pecuniary damage and require that any gain be handed over ... ”


Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in Vransko .

On DATE the applicant was injured in a car accident . The perpetrator of the accident had taken out insurance with the insurance company GPE .

On DATE the applicant instituted civil proceedings against GPE in ORG ( Okrožno sodišče v PERSON ) seeking damages in the amount of CARDINAL NORP tolars ( MONEY ) for the injuries sustained .

DATE and DATE the applicant lodged CARDINAL preliminary written submissions and/or adduced evidence .

DATE and DATE she made CARDINAL requests that a date be set for a hearing .

Of the CARDINAL hearings held on DATE and DATE , neither was adjourned at the request of the applicant .

During the proceedings the court appointed CARDINAL medical experts .

At the last hearing the court decided to deliver a written judgment . The judgment , upholding the applicant ’s claim in part , was served on the applicant on DATE .

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

On DATE the court allowed the applicant ’s appeal in part and accordingly increased the damages awarded .

The judgment was served on the applicant on DATE .

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

On DATE the court dismissed the applicant ’s appeal .