CASE OF EDITORIAL BOARD OF PRAVOYE DELO AND SHTEKEL v. UKRAINE

Preliminary objection joined to merits and dismissed;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Non-pecuniary damage - award

Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger

The first applicant is the editorial board of PERSON , a newspaper officially registered in GPE in DATE . The second applicant is the editor - in - chief of PERSON . He lives in GPE .

At the material time PERSON was a local newspaper published CARDINAL times a week with a circulation of CARDINAL copies . It published reports and material on political and social matters in GPE and , in particular , LOC . Due to lack of funds , the newspaper often reprinted articles and other material obtained from various public sources , including the Internet .

On DATE PERSON published an anonymous letter , allegedly written by an employee of ORG of GPE , which the second applicant ’s colleague , PERSON , had downloaded from a news website . The letter contained allegations that senior officials of ORG of ORG had been engaging in unlawful and corrupt activities , and in particular that they had connections with members of organised criminal groups . CARDINAL of the paragraphs of the letter read as follows :

“ ... The Deputy Head of [ the ORG of ORG ] [ PERSON , a close friend and assistant of the Head of ORG , established ‘ FAC contacts with [ the organised criminal group ] of PERSON ... A member of [ the organised criminal group ] PERSON , an agent of PERSON , who is in charge of the main areas of activities of the gang [ is ] a coordinator and sponsor of murders , [ he ] meets with [ PERSON and resolves financial issues for the top officials of ORG [ ORG ] in LOC ... ”

NORP The letter was followed by these comments , prepared by Ms I. on behalf of the editorial board :

“ When publishing this letter without the knowledge and consent of the editor - inchief , I understand that I may not only face trouble ... but I may also create problems for the newspaper . Because , if this letter is [ misinformation ] , then [ the media ] , in which it appears may be endangered . On the other hand , if this letter is genuine , then its author faces a higher risk . Besides , given that this anonimka [ anonymous letter ] has already been published on the GPE website ORG ( to which we refer , in accordance with their requirement ) , we have the blessing of God [ to publish it ] . We are proceeding on the understanding that , in accordance with LAW over ORG and Law - Enforcement Organs of the ORG , we are carrying out civil control and , under LAW of the LAW , we would like to receive open information concerning the facts described in this letter from the relevant authorities . Moreover , [ it is to be noted ] that the ORG [ of ORG ] in LOC did not react to an analogous publication in the Top Secret [ newspaper ] ... I remind [ you ] that the [ Pravoye Delo ] newspaper ... is wide open for letters in reply and comments from all interested agencies . ”

NORP In DATE PERSON , who lived in GPE at the time and was the President of ORG , brought defamation proceedings in ORG of GPE against the applicants . PERSON alleged that the information in the DATE issue of PERSON concerned him , and that it was untrue and had damaged his dignity and reputation . He asked the court to order the applicants to publish a retraction and an apology and to pay him compensation for non - pecuniary damage in the amount of CARDINAL NORP hryvnias ( ORG ) .

The applicants first argued before the court that they were not responsible for the accuracy of the information contained in the material that they had published , as they had reproduced material published elsewhere without making any modifications . The publication contained a reference to the source of the material and was followed by comments explaining the editors’ position regarding the material and inviting comments from the persons and bodies concerned . The applicants also submitted that if the court were to award PERSON the amount of compensation he had claimed , the newspaper would become insolvent and would have to close .

Subsequently , at a hearing on DATE , the second applicant stated that the article was not about the claimant and that its wording did not necessarily establish that it was a particular “ PERSON who was being referred to .

On DATE the court ruled against the applicants . It found that the information at issue did concern the claimant , who was a public figure involved in public activities in LOC and had represented GPE at sports events abroad in his capacity as President of ORG . In that context , the court noted that this had not been contested by the applicants in their initial submissions and that the publication was about the activities of ORG in LOC . The court further held that the content was defamatory and that the applicants had failed to prove that it was true . It found no grounds on which to exempt the applicants from civil liability under section CARDINAL of LAW , as the Internet site to which they had referred was not printed media registered pursuant to section CARDINAL of LAW .

NORP The court ordered the first applicant to publish a retraction of the following content of the publication :

“ ... A member of [ the organised criminal group ] , PERSON , an agent of PERSON , who is in charge of the main areas of activities of the gang [ is ] a coordinator and sponsor of murders , [ he ] meets with [ PERSON and resolves financial issues for the top officials of the ORG [ of ORG ] in LOC ... ”

The court further ordered the second applicant to publish an official apology in the newspaper .

In determining the amount of compensation to be paid to the claimant , the court considered the submissions of the latter and the information concerning the financial situation of the newspaper . It noted that its gross DATE income was MONEY and found it reasonable to order the applicants jointly to pay PERSON CARDINAL for nonpecuniary damage . The applicants were also ordered to pay to ORG CARDINAL in court fees .

The applicants appealed . They maintained the submissions they had made before the first - instance court and also contended that the editorial board had not been registered as a legal entity pursuant to the relevant regulations on registration of the media and that the second applicant had not been appointed as editor - in - chief in accordance with the law . Thus , in their view , they could not take part in the proceedings .

The applicants further argued that invoking their civil liability was contrary to section CARDINAL of LAW and section QUANTITY , stating that they had not intended to defame PERSON and that , by publishing the material , they had wished to promote public discussion of the issues raised in that material which were of significant public interest . According to them , it was their duty to disseminate the material and the public had a right to receive it .

The second applicant also submitted that he had not authorised the publication of the material at issue and that the legislation did not provide for an obligation to apologise as a sanction for defamation .

On DATE and DATE , respectively , ORG and ORG rejected the ORG appeals and upheld the judgment of the first - instance court .

On DATE the applicants and PERSON concluded a friendly - settlement agreement , pursuant to which the latter waived any claim in respect of the amount of compensation awarded in the judgment of CARDINAL DATE . The applicants , for their part , undertook to cover all the costs and expenses relating to the court proceedings and to publish in PERSON promotional and informational materials at PERSON request , the volume of which was limited to the amount of compensation under the judgment .

In DATE the applicants discontinued publishing PERSON .

Relevant extracts from the LAW read as follows :

“ ... Everyone is guaranteed judicial protection of the right to rectify incorrect information about himself or herself and members of his or her family , and of the right to demand that any type of information be rectified , and also the right to compensation for pecuniary and non - pecuniary damage inflicted by the collection , storage , use and dissemination of such incorrect information . ”

“ Everyone is guaranteed the right to freedom of thought and speech , and to the free expression of his or her views and beliefs .

Everyone has the right to freely collect , store , use and disseminate information by oral , written or other means of his or her choice .

The exercise of these rights may be restricted by law in the interests of national security , territorial indivisibility or public order , with the purpose of preventing disturbances or crime , protecting the health of the population , the reputation or rights of other persons , preventing the publication of information received confidentially , or maintaining the authority and impartiality of justice . ”

Relevant extracts from LAW read as follows :

“ A citizen or an organisation shall be entitled to demand in a court of law that material be retracted if it is not true or is set out untruthfully , degrades their honour and dignity or reputation , or causes damage to their interests , unless the person who disseminated the information proves that it is true ...

A citizen or an organisation concerning whom material has been disseminated that is untrue and damages their interests , honour , dignity or reputation shall be entitled to request compensation for pecuniary and non - pecuniary damage as well as a retraction of such information ... ”

The provisions of LAW of DATE pertinent to the case read as follows :

Everyone has the right to apply to a court of law for the protection of his or her ... rights and interests .

NORP The means of protection of civil rights and interests may include :

CARDINAL ) NORP recognition of the right ;

CARDINAL ) NORP declaration of nullity of an act ;

CARDINAL ) NORP cessation of actions violating the right ;

CARDINAL ) NORP restoration of the situation which existed prior to the violation ;

CARDINAL ) NORP specific performance of an obligation ;

CARDINAL ) NORP modification of legal relations ;

CARDINAL ) NORP discontinuance of legal relations ;

CARDINAL) compensation for [ pecuniary ] damage ... ;

CARDINAL ) compensation for [ non - pecuniary ] damage ;

CARDINAL ) declaration of unlawfulness of a decision or action or of inactivity of a ORG body ;

The court may give protection to the civil right or interest by other means envisaged by a contract or law .

“ CARDINAL . A physical person whose non - pecuniary rights have been infringed as a result of dissemination of untrue information about him or her and/or members of his or her family shall have the right to reply and [ the right to ] the retraction of that information .

Negative information disseminated about a person shall be considered untrue if the person who disseminated it does not prove the contrary .

NORP Untrue information shall be retracted by the person who disseminated it ...

If the untrue information is contained in a document which has been accepted ( issued ) by a legal entity , that document shall be recalled .

A physical person whose non - pecuniary rights have been infringed in printed or other mass media shall have the right to reply and also [ the right to ] the retraction of the untrue information in the same mass media , in the manner envisaged by law ...

Untrue information shall be retracted irrespective of whether or not the person who disseminated it is guilty .

NORP Untrue information shall be retracted in the same manner as it was disseminated . ”

Relevant extracts from LAW provided , as worded at the material time , as follows :

“ Printed mass media are periodical prints ( press ) DATE newspapers , magazines , bulletins – and occasional prints with a set circulation .

Audiovisual mass media are radio , television , cinema , audio , video recordings and so on .

The procedure of establishing ... of particular media shall be determined by the laws concerning such media . ”

Liability for infringement of the legislation on information shall be borne by persons responsible for the following infringements :

dissemination of untrue information that defames the honour and dignity of a person ... ”

“ If physical or legal persons have suffered pecuniary or non - pecuniary damage caused by an offence committed by an entity engaged in informational activities , those responsible [ for the offence ] shall compensate [ for the damage ] voluntarily or pursuant to a court decision ... ”

Relevant extracts from LAW provide :

“ Printed mass media ( press ) in GPE , as referred to in this LAW , are [ defined as ] periodical and continuing publications issued under a permanent name [ at least ] once a DATE pursuant to a certificate of State registration ... ”

“ Entities engaged in printed mass media activities shall include [ their ] founders ( or co - founders ) , editors ( or editors - in - chief ) , editorial boards ... ”

“ The editorial board ... shall prepare and issue printed mass media under the instructions of its founder ( or co - founders ) .

The editorial board shall act on the basis of its organisational charter and shall implement the programme of the printed mass media approved by its founder ( or cofounders ) .

The editorial board ... shall acquire the status of a legal entity from DATE of State registration , which shall be carried out in accordance with the legislation of GPE . ”

“ The editor ( or editor - in - chief ) ... shall be the head of the editorial board , authorised by the founder ( or co - founders ) .

The editor ( or editor - in - chief ) ... shall manage the editorial board ’s activities within his competence , as envisaged by its organisational charter , shall represent the editorial board in its relations with the founder ( or co - founders ) , the publisher , authors , State organs , associations of citizens , and individual citizens , as well as before the courts and arbitration tribunals and shall be responsible for compliance with the [ legislative ] requirements as to the activities of the printed media , its editorial board ... ”

“ ... All printed mass media in GPE shall be subject to State registration , irrespective of the area of its dissemination , circulation and the manner of its creation ... ”

“ Every issue of printed mass media shall contain the following publishing data :

( CARDINAL ) name of publication ...

Distribution of [ publications ] without publishing data shall be prohibited . ”

“ ORG , legal entities and ORG organs , and their legal representatives shall have the right to demand that the editorial board of the printed mass media publish a retraction of information disseminated about them which is untrue or defames their honour and dignity .

If the editorial board does not have any evidence that the content published by it is true , it must , if requested by the claimant , publish a retraction of such information in the next issue of the printed mass media in question or publish the retraction on its own initiative ... ”

“ Editorial boards , founders , publishers , distributors , ORG organs , organisations and associations of citizens shall be liable for infringements of the legislation on the printed mass media .

Infringements of NORP legislation on the printed mass media are :

CARDINAL ) NORP violations envisaged by CARDINAL of LAW ...

For such an infringement the guilty party shall incur disciplinary , civil , administrative or criminal liability in accordance with the current legislation of GPE .

The journalist ... editor ( or editor - in - chief ) or other persons with whose permission the material which violates this LAW has been published shall bear the same liability for abuse of the freedom of the printed mass media as the authors of that material . ”

“ The editorial board and journalists are not liable for the publication of material that is untrue , defames the honour and dignity of citizens and organisations , infringes the rights and lawful interests of citizens , or constitutes abuse of the freedom of the printed mass media and the rights of journalists if

CARDINAL ) the information has been received from news agencies or from the founder ( cofounders ) [ of the media source ] ;

CARDINAL ) NORP the information is contained in a reply given in accordance with LAW to a request for access to official documents and to a request for written or oral information ;

CARDINAL ) the information is a verbatim reproduction of official speeches of the officials of ORG organs , organisations and associations of citizens ;

CARDINAL ) the information is a verbatim reproduction of material published by other printed mass media and contains a reference to [ the latter ] ;

CARDINAL ) the information contains secrets that are specifically protected by law , where the journalist has not obtained this information unlawfully . ”

Relevant extracts from the LAW provide :

“ ... In the process of consideration by a court of a dispute concerning non - pecuniary damage between a journalist or mass media , as a defendant party , and a political party , electoral bloc , [ or ] an office holder ( or office holders ) , as a claimant , the court may award compensation in respect of non - pecuniary damage only if the journalist or officials of the media [ acted ] intentionally . The court shall take into account the outcome of the use by the claimant of extrajudicial , in particular pre - trial , opportunities for retraction of untrue material , defending his honour and dignity and reputation , and settlement of the entire dispute . Having regard to the circumstances , the court may refuse compensation in respect of non - pecuniary damage .

The intention of the journalist and/or official of the media means his or their stance with regard to dissemination of information where the journalist and/or official of the media are aware that the information is untrue and have anticipated its socially injurious consequences .

The journalist and/or the mass media shall not incur liability for dissemination of untrue information if the court establishes that the journalist acted in good faith and checked the information . ”

The relevant extracts from the ORG of ORG read as follows :

“ CARDINAL . Under LAW , the legal order in GPE is based on [ the principle ] according to which no one shall be forced to do what is not envisaged by the legislation . In turn , Article CARDINAL , paragraph CARDINAL , of the LAW of GPE guarantees everyone the right to freedom of thought and speech , and to the free expression of his or her views and beliefs .

A court has no power to oblige a respondent to apologise to a claimant ... as a forced apology is not envisaged by Articles CARDINAL [ and ] CARDINAL [ of LAW of DATE ] as a means of judicial protection of honour , dignity , [ and ] business reputation [ in case of ] dissemination of untrue information . ”

ORG confirmed the Plenary ’s approach in a defamation case , having quashed the lower courts’ decisions by which a respondent was ordered , inter alia , to apologise as legally unfounded . In particular , the relevant extract of ORG judgment ( dated DATE ) reads as follows :

The court[s ] are not entitled to oblige a respondent to apologise to a claimant in CARDINAL form or another , as ORG CARDINAL [ and ] CARDINAL [ of LAW of DATE ] do not provide for a forced apology as a means of judicial protection of honour , dignity , [ and ] business reputation [ in case of ] dissemination of untrue information ; compulsion of a person to change his / her beliefs is an interference with the freedom of speech and expression guaranteed by LAW and LAW ... ”

At their CARDINALth meeting on DATE the Ministers’ Deputies considered essential aspects of the use of new information and communication technologies and services , in particular the Internet , in the context of protection and promotion of human rights and fundamental freedoms . They acknowledged the increasingly important role the Internet was playing in providing diverse sources of information to the public and people ’s significant reliance on the Internet as a tool for communication .

It was noted however that the Internet could , on the one hand , significantly enhance the exercise of human rights and fundamental freedoms , such as the right to freedom of expression , while , on the other hand , the Internet might adversely affect other rights , freedoms and values , such as the respect for private life and secrecy of correspondence and for the dignity of human beings .

ORG adopted recommendations to ORG member states with regard to the governance of the Internet . These included recommendation to elaborate a clear legal framework delineating the boundaries of the roles and responsibilities of all key stakeholders in the field of new information and communication technologies and to encourage the private sector to develop open and transparent self- and co - regulation on the basis of which key actors in this field could be held accountable .

The growing importance of the Internet as a vehicle for facilitating in practice the free flow of information and ideas was also recognised in LAW issued by PERSON GPE , Mr PERSON and Mr PERSON . They stressed the need for strict application of international guarantees of freedom of expression to the Internet . In that context , it was stated that no one should be liable for content on the Internet of which they were not the author , unless they had either adopted that content as their own or refused to obey a court order to remove that content .


The applicant , Mr Ferhat Kilic , is a NORP national who lives in GPE . He is represented before the ORG by Mr Ulrik Rasmussen , a lawyer practising in GPE .

The applicant was born on CARDINAL DATE in GPE . In order to join his father , who had lived in GPE since DATE , on DATE the applicant entered GPE together with his mother . At the relevant time the applicant was DATE . He spent most of his childhood and youth in GPE . It appears that twice during DATE he spent DATE in GPE . He left school after DATE schooling and has never had any affiliation to the labour market .

His parents , CARDINAL siblings , his paternal grandmother and CARDINAL uncles also all live in GPE . DATE , the applicant has been on holiday for a longer period in GPE , where his mother ’s family and CARDINAL paternal aunts live . The applicant ’s family in GPE owns a house in GPE with several apartments , which are used by the family upon their visits to their country of origin . He speaks NORP and NORP .

By a ORG judgment of CARDINAL DATE the applicant was convicted of CARDINAL independent assaults . As to the first assault , jointly with another perpetrator , the applicant had overturned a cyclist , beaten and kicked him , including on the head , resulting in the victim being badly injured , i.e. , among other things , he broke his knee cap . As to the second assault , the applicant had been caught in the act of burglary by the house owner in question , upon which the applicant beat and kicked the latter , including on the head . The applicant was sentenced to CARDINAL days’ imprisonment suspended on probation . The judgment was appealed against to ORG of Eastern Denmark ( PERSON ) .

By a ORG judgment of CARDINAL DATE the applicant was again convicted , inter alia , of CARDINAL independent assaults of respectively a headmaster and a police officer . He was sentenced to spend DATE at a detention centre for children and young persons and thereafter DATE at an institution for youth persons . The applicant appealed against the judgment to ORG of Eastern GPE .

On DATE the High Court confirmed both ORG judgments . It decided , however , to fix a joint sentence , thus maintaining the sentence set out in ORG judgment of CARDINAL DATE .

On DATE the applicant and his cousin were arrested and charged , inter alia , with attempted robbery , aggravated assault and manslaughter . They were detained on remand the following day .

On DATE they were convicted by ORG of Eastern GPE sitting with a jury . It found it established that on DATE , when the applicant was DATE and his cousin DATE , jointly they had threatened a young man , an NORP tourist , with a knife in order to steal his money . Although the young man was stabbed by the applicant ’s cousin , he first managed to flee . Shortly thereafter the applicant and his cousin ran him down , beat him , and the applicant ’s cousin stabbed him several times , the injuries inflicted resulting in the victim ’s death .

By the same judgment , the applicant was also convicted of : burglary committed on DATE with regard to goods equal to an amount of MONEY ( ORG ) ; and CARDINAL counts of escape from detention centres for children and young persons , namely in the periods from DATE until DATE , when he was arrested by the police ; from DATE until DATE , when he was again arrested by the police ; from DATE until DATE , when he was arrested by the police ; and from the afternoon on DATE until later on DATE , when he was arrested by the police .

According to a psychiatric report of DATE , the applicant was not found to be mentally sick but he did have character flaws such as abdication of responsibility . Since his childhood he had behavioural problems and since puberty he had abused hashish .

In its judgment , ORG of ORG sentenced the applicant to eight years’ imprisonment . In addition , he was expelled from GPE for an indefinite time to be implemented after the sentence had been served .

The applicant ’s cousin , who was also convicted of additional offences to attempted robbery , aggravated assault and manslaughter , was sentenced to CARDINAL years’ imprisonment and expulsion from GPE for an indefinite time .

Upon appeal , ORG ( Højesteret ) confirmed the sentences on DATE . With regard to the order to expel the applicant and his cousin , the majority of CARDINAL judges held as follows :

[ The applicant ’s cousin ] was born in GPE , whereas [ the applicant ] arrived as a threeyearold . They have spent their youth and had their schooling in this country where also their parents and siblings live . Thus , they have a strong connection with the NORP society and to people living here . At the same time , however , they have a [ significant ] connection with GPE and NORP culture . They speak NORP and DATE they have visited GPE where they have a big family . Both have been previously convicted , and have now been sentenced to longer prison terms , inter alia , for manslaughter , attempted robbery and aggravated assault . Having taken all considerations into account , in our view neither the elements mentioned in section CARDINAL , subsection CARDINAL of LAW ( PERSON ) nor LAW speak decisively against [ their ] expulsion . Accordingly , we vote [ for their expulsion ] .

The minority of CARDINAL judge held as follows :

In my view , when taking all the elements mentioned in section CARDINAL , subsection CARDINAL of LAW into account , the connection which the applicant and [ his cousin ] have with GPE and NORP culture , is not of such an extent and character that it has decisive weight when compared to their strong connection to the NORP society and people living here . In my opinion , the latter speaks significantly against expelling the applicant and his cousin from GPE . Accordingly , notwithstanding the serious crimes committed , I vote [ against their expulsion ] .

The relevant provision of LAW ( PERSON ) applicable at the time read as follows :

“ An alien who has lawfully stayed in GPE for more than DATE , and an alien issued with a residence permit under sections DATE may be expelled only if :

( i ) the alien is sentenced to minimum DATE imprisonment or other criminal sanction involving or allowing deprivation of liberty in respect of an offence that would have resulted in a punishment of this duration .

( vi ) the alien is sentenced , pursuant to ... Articles ... [ manslaughter , aggravated assault , robbery , etc ] of LAW to imprisonment or other criminal sanction involving or allowing deprivation of liberty in respect of an offence that would have resulted in a punishment of this nature . ”

NORP In deciding on expulsion , regard must be had to the question whether expulsion must be assumed to be particularly burdensome , in particular because of :

( i ) the alien ’s ties with the NORP community , including whether the alien came to GPE in his childhood or DATE ;

( ii ) the duration of the alien ’s stay in GPE ;

( iii ) the alien ’s age , health , and other personal circumstances ;

( iv ) the alien ’s ties with persons living in GPE ;

( v ) the consequences of the expulsion for the alien ’s close relatives living in GPE ;

( vi ) the alien ’s slight or non - existent ties with his country of origin or any other country in which he may be expected to take up residence ; and

( vii ) the risk that , in cases other that those mentioned in section CARDINAL(CARDINAL ) and ( CARDINAL ) , the alien will be ill - treated in his country of origin or any other country in which he may be expected to take up residence .

An alien may be expelled pursuant to LAW to ( vi ) unless the circumstances mentioned in subsection CARDINAL above constitute a decisive argument against doing so .


Violation of Art. 6-1;Not necessary to examine P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in GPE .

The applicant ’s parents owned a CARDINAL - storey building in GPE . By virtue of LAW on the Ownership and Use of Land in GPE the GPE municipality ( and after DATE ORG ) became the owner of all plots of land located in GPE . The decree provided for a possibility to obtain the perpetual lease of a plot of land on request . On DATE the applicant ’s parents filed such a request . At DATE they were deprived of the right to manage the property and forced to renounce the rent collected from their tenants .

On DATE ORG examined their request lodged in DATE . It refused to grant the applicant ’s parents the perpetual use ( former perpetual lease ) of the land and declared that the building located on that land had become the property of the ORG .

On DATE ORG dismissed the applicant ’s appeal against that decision . It found that the building in question was not a small one - family house , which would qualify it for exclusion from the so - called “ communal administration ” of properties , provided for by a law adopted in DATE . As the building was covered by that administration , ORG considered that granting the perpetual use of the land would have no justification .

On DATE the applicant filed with ORG a request for the annulment of the decision of DATE . On DATE the Minister refused the request , considering that the challenged decision had been issued in accordance with the law . The applicant appealed . On DATE ORG dismissed his appeal .

Subsequently , the First President of ORG filed with that court an extraordinary appeal against that judgment .

On DATE ORG quashed the DATE judgment of ORG and the decision of the Minister of Construction . It considered that they had relied on the conformity of the DATE decisions with the “ communal administration ” of properties , whereas the law providing for such administration had been adopted after the date of lodging the request for perpetual lease and therefore could not apply . The court observed that the DATE decree obliged the municipality to grant requests for perpetual use of land unless the use of that land by its former owner would be incompatible with its function set forth in the development plan . ORG pointed out that the organs dealing with the applicant ’s request had not examined the issue of such compatibility . It made reference to the constitutionally guaranteed protection of property , pointing out that the applicant ’s property had been expropriated on unspecified legal grounds and no compensation had been awarded therefor .

On DATE the Minister of Construction , having regard to ORG judgment , declared that the part of the decision of DATE concerning those flats in the disputed building which had been already sold by the municipality to their tenants had been issued in breach of the law . However , it was impossible to declare the decision null and void since , under applicable law , if DATE had elapsed from the date on which such an unlawful decision had been given , the Minister could only declare that it had been issued in breach of the law . The Minister annulled the remainder of that decision . In consequence , the appellate proceedings in respect of that part of the DATE decision were re - opened .

On DATE ORG of Appeal quashed the decision of DATE and remitted the case for re - examination .

In DATE the applicant lodged with ORG a complaint about the inactivity of the Mayor of GPE , who was competent to deal with the case .

On DATE ORG requested the applicant to provide it with a copy of judicial decisions identifying his GPE heirs . On CARDINAL and on DATE the applicant submitted the requested information . On DATE CARDINAL heirs of the former co - owner PERSON declared their wish to join the proceedings . On DATE the former co - owner GPE , who had later changed her name to ORG . , also declared her wish to do so .

On DATE ORG requested ORG PERSON to submit an extract from the town planning scheme concerning the plot under dispute .

Also on DATE ORG informed the applicant about the problems hindering it from taking the requested decision . The first problem consisted in the fact that the applicant ’s mother had lodged her request to be granted the right to perpetual use before ORG became officially the owner of the plot . Another difficulty arose from the fact that the heirs of PERSON – the former co - owner of the plot – had not submitted to the ORG their legal titles to the ownership . Finally , it was necessary for the ORG to obtain the extract from the town planning scheme concerning the plot . In order to clarify the legal consequences arising from the first problem the ORG had posed a legal question to ORG , asking if the requirements of the CARDINAL Decree were fulfilled when the request had been lodged before the plot in question came officially into the ownership of ORG . The applicant was informed that as soon as the answer was provided the ORG would proceed further with his request .

On DATE CARDINAL of the heirs of the former co - owner presented to the ORG a decision stating that the part of the plot belonging to the late PERSON had been inherited by QUANTITY persons PERSON , Mr DATE , PERSON , Ms K.F and PERSON ) . She additionally informed the ORG that certain other inheritance proceedings concerning the estate of PERSON late heirs were pending .

On DATE ORG received the extract from the town planning scheme concerning the plot .

The examination of the case not having commenced for DATE , the applicant lodged with ORG a complaint about the inactivity of the Mayor of GPE . On DATE ORG found the applicant ’s complaint well - founded and ordered the Mayor to finish the examination of the case by DATE .

On DATE one of the heirs of the former co - owner Ms PERSON informed the ORG that the inheritance proceedings concerning the estate were still pending .

On DATE the applicant requested the ORG to issue in his case not CARDINAL but CARDINAL decisions granting him the right to perpetual use of the plot concerned . He argued that before the plot came into the ownership of ORG , it constituted CARDINAL separate plots . In consequence , the ORG should restore the original legal situation of the property and should issue CARDINAL separate decisions granting the applicant the right to perpetual use of the separate plots of land .

On DATE , at the request of the ORG , an expert submitted an evaluation report concerning the value of the plot .

On DATE one of the heirs of the former co - owner informed the ORG that the inheritance proceedings had been terminated . She submitted a copy of the court ’s decision of DATE . The decision awarded the estate to Mr GPE , Mr PERSON and Mr R.A.K.

On DATE the applicant submitted to ORG a copy of a request lodged with the court by a certain PERSON She requested the court to quash the court ’s decision of DATE in the part concerning the estate of Mr PERSON She argued that already by DATE she had been declared his heir .

On DATE the applicant requested the ORG to grant him the perpetual use but only in regard to a part of the presently existing plot . This part of the plot had earlier constituted a separate plot .

On DATE ORG requested the Deputy Director of ORG to prepare a socalled “ map of legal status ” of the plot .

On DATE ORG quashed the decision of DATE concerning the estate of Mr GPE As a result , PERSON inherited the entire estate of the late Mr PERSON

On DATE the District Office PERSON informed ORG that the lawful division of the building was impossible because it did not possess a mandatory anti - fire wall . In the light of this information the ORG decided that an expert opinion should be prepared . On DATE the expert submitted the opinion . He stated that the lawful division of the building was possible .

On DATE ORG requested ORG PERSON to issue a decision confirming the division of the plot was possible and an approval of the division of the plot .

On DATE the ORG requested PERSON to provide it with a copy of the court ’s decision which had awarded her the estate of the late PERSON PERSON She did so on DATE .

On DATE ORG informed the applicant and other heirs of the former co - owners that it had instituted ex officio administrative proceedings concerning the division of the plot . It was explained that the decision approving the division of the plot would make it possible to determine the parties’ shares in the co - property and that , in turn , this would make it possible to give a decision conferring the right to perpetual use of the plot . By a letter of DATE the parties to the proceedings were requested to appear within DATE time - limit in order to express their opinion concerning the planned division of the plot .

On DATE PERSON and on DATE PERSON expressed their consent to the division .

Due to the fact that not all persons summoned to do so , including the applicant , had expressed their consent to the planned division of the plot , on DATE the ORG discontinued the proceedings in its part concerning the division . On DATE the applicant appealed against that decision to ORG .

On DATE the applicant lodged with ORG a complaint about the further inactivity on the part of the Mayor and the ORG .

On DATE that court ordered the Mayor to deal with the case within DATE . The court considered that the manner in which the proceedings had been conducted disclosed improper functioning of the administrative authority concerned and a flagrant breach of the provisions of LAW relating to the time - frame within which administrative cases should be dealt with .

On DATE ORG dismissed the applicant ’s appeal against the decision of DATE to discontinue the proceedings concerning the division of the plot . On DATE the applicant lodged a further appeal against that decision . On DATE ORG dismissed his appeal .

On DATE the Mayor of GPE stayed the proceedings concerning the applicant ’s request to grant him the perpetual use of the plot of land relying on the fact that the perpetual users of the land had not expressed their consent to division of the property and obliged thereby all heirs to institute civil proceedings in which a court would give a decision on such division . The applicant appealed . On DATE ORG allowed his appeal and discontinued the proceedings IN SO FAR as they related to the decision of DATE to stay the proceedings . ORG observed that the decision of the civil court on the division of the estate of the late former owners was wholly unnecessary for the continuation of the administrative proceedings at hand , a decision determining the shares of the heirs in the estate having already been given in the inheritance proceedings .

The applicant appealed against this decision . On DATE ORG dismissed his appeal , observing that the second - instance decision of CARDINAL DATE was in fact favourable to him .

The proceedings concerning the applicant ’s request for award of the right to perpetual use of the plots concerned are pending .

According to LAW cases shall be handled without undue delay and the time of their examination , even if they are complex , shall not exceed DATE ( LAW ) . Having failed to comply with the time - limit prescribed by LAW , the administrative organ must , under LAW , inform the parties of that fact , explain the reasons for the delay and fix a new time - limit .

LAW provides :

“ § CARDINAL . A complaint about failure to handle a case within the time - limit set forth in LAW or fixed under Article CARDINAL can be lodged with an administrative organ of a higher level .

§ CARDINAL . [ That ] organ , having found the complaint well - founded , shall fix an additional time - limit for the completion of the case ... ”

Further remedies in respect of inactivity on the part of an administrative organ are provided for by the PERSON on ORG . Under LAW of that LAW a party to administrative proceedings may lodge with ORG a complaint about such inactivity .

Section CARDINAL of the PERSON provides that the ORG , having found such a complaint well - founded , shall oblige the administrative organ concerned to issue a decision or to perform an activity .

Section CARDINAL of the PERSON on ORG sets out the requirement of the exhaustion of available remedies before lodging a complaint with that court . Accordingly , the complaint concerning alleged inactivity should be preceded by the lodging of a complaint with an administrative organ of a higher level , pursuant to the above - mentioned LAW .

In accordance with the Decree of DATE on the Ownership and Use of Land in GPE ( dekret o własności i użytkowaniu gruntów na obszarze QUANTITY st . PERSON ) the ownership of all land was transferred to the municipality . The decree provided in so far as relevant :

“ LAW Buildings and other objects located on the land being transferred to the municipality ’s ownership remain the property of those who have owned them so far , unless specific provisions provide otherwise .

Article CARDINAL . ( CARDINAL ) The owner of a plot of land ... can within DATE after the taking of possession of the land by the municipality file a request to be granted ... the right to a perpetual lease ( wieczysta dzierżawa ) with a peppercorn rent ( czynsz symboliczny ) . ...

( CARDINAL ) The municipality shall grant the request if the use of the land by the former owner is compatible with its function set forth in the development plan ( plan zabudowania ) . ...

( CARDINAL ) In case the request is refused , the municipality shall offer the person entitled , as long as it has spare land in its possession , a perpetual lease of land of equal value , on the same conditions , or the right to construct on such land .

( CARDINAL ) In case no request , as provided for in paragraph ( CARDINAL ) , is filed , or the former owner is for any other reasons not granted a perpetual lease or the right to construct , the municipality is obliged to pay compensation pursuant to LAW .

Article CARDINAL . In case the former owner is not granted the right to a perpetual lease or the right to construct , all buildings located on the land shall become the property of the municipality , which is obliged to pay , pursuant to Article CARDINAL , compensation for the buildings which are fit to be used or renovated .

Article CARDINAL . ... ( CARDINAL ) The right to compensation begins to apply DATE after DATE of taking the land into possession by the municipality of GPE and expires DATE after that date . ... ”

Under Article XXXIX of the Decree of CARDINAL DATE introducing LAW ( prawo rzeczowe ) and LAW , the right to construct and the right to a perpetual lease could be transferred into temporary ownership ( własność czasowa ) .

LAW of DATE on ORG ( ustawa o gospodarce terenami w miastach i osiedlach ) replaced temporary ownership with perpetual use ( użytkowanie wieczyste ) .

Pursuant to LAW in GPE was assigned to ORG .

ORG of DATE re - established local self - government . Pursuant to Article CARDINAL ) , ownership of land which had previously been held by ORG and which had been within the administrative territory of municipalities at the relevant time was transferred to the municipality .

The right to perpetual use is regulated by LAW . An individual or a legal entity may be granted such a right over land owned by the ORG or a local authority . The right comprises a right to use the land to the exclusion of others for DATE , on payment of a yearly fee . The person entitled to the right can dispose of it .


Violation of Article 6 - Right to a fair trial

Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE .

NORP In DATE the applicant 's vehicle was damaged in a road traffic accident . On DATE he sued a private company in charge of road maintenance for damages . He alleged that the accident had been caused by its failure to clean up the road . The examination of the matter was stayed pending the payment of the court fee by the applicant . The proceedings were resumed on DATE .

On DATE the ORG of GPE granted a request by the respondent company to adjourn the proceedings pending the criminal investigation into the road traffic accident . The proceedings were resumed on DATE .

On DATE the representative of the respondent company failed to appear and the hearing was adjourned .

On DATE and DATE and CARDINAL DATE ORG adjourned the court hearing as the applicant modified his claims .

On DATE ORG granted a request by the respondent company for an expert report to determine the value of the applicant 's vehicle and stayed the proceedings . The respondent company failed to pay the expert 's fee and the case file was returned to the court .

On DATE and DATE ORG adjourned the hearing , granting the respondent company 's requests to study the case file .

DATE and DATE the proceedings were adjourned pending the criminal investigation further to requests by the respondent company and the applicant .

On DATE ORG adjourned the hearing further to a request by the respondent company to summon new witnesses .

On DATE the applicant asked the court to adjourn the hearing pending the criminal investigation .

On DATE ORG granted the applicant 's claims in part . On DATE the ORG quashed that judgment and remitted the case to ORG for a fresh examination . ORG noted that ORG had failed to properly establish the circumstances of the road traffic accident and to determine the responsibility of all the parties involved .

On DATE ORG adjourned the preparatory hearing owing to the parties ' failure to appear . The preparatory hearing was subsequently held on DATE .

On DATE and DATE ORG granted the applicant 's request and adjourned the hearing pending the criminal investigation .

On DATE the applicant asked the court to resume the hearing of the matter . On DATE ORG annulled its own decision of DATE and resumed the proceedings .

On DATE the applicant asked the court to adjourn the hearing in order to modify his claims .

On DATE the applicant submitted the modified claims and asked the court to summon certain witnesses .

On DATE ORG dismissed the applicant 's claims in full . On DATE ORG quashed that judgment and granted the applicant 's claim in part . The court based its findings , inter alia , on the materials in the criminal investigation file , such as the crime - scene investigation and forensic expert reports .


Preliminary objection joined to merits and dismissed (victim);Violation of Art. 8;Non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria

The applicants were born in DATE , CARDINAL , CARDINAL , CARDINAL and DATE respectively and live in GPE . CARDINAL of the applicants are journalists , one is a teacher of NORP and another is a librarian . They are friends .

At the time of the events the first CARDINAL applicants were employed by a newspaper specialising in investigative journalism . The newspaper was involved in numerous scandals and lawsuits . In DATE its editor in chief was arrested on charges of corruption . According to the applicants , after that event CARDINAL of them developed close relationships with the QUANTITY police officers involved in the arrest of the editor in chief and CARDINAL of them was even involved in a romantic relationship with CARDINAL of the QUANTITY police officers . According to the applicants , the police officers in question provided them with material for their work at the newspaper . The Government disputed the factual circumstances concerning the close relationship between the applicants and the QUANTITY police officers .

NORP In DATE a person calling himself PERSON came to the headquarters of the newspaper employing the first CARDINAL applicants and offered to sell a video containing explicit images of a priest engaged in promiscuous behaviour . It appeared later that PERSON was member of a criminal gang and that the video in question had been used to blackmail the priest . The information was passed on to the QUANTITY police officers and on DATE CARDINAL of the applicants helped the police officers to apprehend Petrus . CARDINAL applicant was remunerated for her assistance and , on DATE , wrote a receipt to ORG . The Government disputed the applicants’ submissions concerning the arrest of PERSON and the applicants’ involvement therein . They confirmed the fact that one of the applicants had received money from ORG , however , without specifying the consideration for the payment .

Also in DATE one of the first CARDINAL applicants became acquainted with a person named GPE , who was involved in a dispute with ORG about which the applicant wrote an article . On DATE all the applicants , the QUANTITY police officers and GPE spent TIME in a sauna near GPE . The Government disputed the allegation that the QUANTITY police officers had spent time in a sauna with the applicants and with GPE

On DATE the first applicant was allegedly contacted by CARDINAL of the QUANTITY police officers and was asked not to publish an article about illegalities at ORG due to appear DATE . The police officer took the applicant to a store , apparently specialising in electronics , where he showed her a video of her and the other applicants filmed on DATE in the sauna and threatened to have it broadcast on national television if his conditions were not met and added that copies of the video would be sent to the applicants’ parents . He also allegedly threatened her with imprisonment and violence and warned her that her collaboration with the police would be made public . The first applicant informed the police officer in question that it was too late to stop the article ’s publication since the material had already been sent to the printing house . On DATE the article in question was published .

On DATE at TIME the national television service broadcast a programme dedicated to the phenomenon of corruption and the moral character of journalists from the newspaper employing the applicants . The programme was presented by the president of the national television service and GPE was a guest . The guest was presented as a businessman who alleged that he had bribed the second applicant to secure the publication of material . He also described his and the applicants’ TIME in the sauna on DATE , and stated that CARDINAL of the applicants had stolen money from the pocket of his trousers and that the applicants intended to kidnap his child for ransom . GPE also alleged that the newspaper employing the applicants belonged to an opposition leader . The programme continued with footage from a black and white video filmed in the sauna . The applicants were seen in their underwear , apparently intoxicated , using obscene language . CARDINAL of the applicants were kissing and touching one of the men , and CARDINAL of them was performing an erotic dance . The face of the male was covered in the video , whereas those of the applicants were not and the video was paused from time to time in order to allow them to be recognised more easily . The video appears to have been shot from a static camera and CARDINAL of the male participants appears to have been aware of the filming , since he gave the “ thumbs up ” sign to the camera when none of the applicants was looking . A copy of the receipt issued to ORG was also shown in the programme and offensive terms with meanings such as “ low class prostitutes ” were employed when images of the applicants were shown . The programme continued with footage from a video of the arrest of the editor in chief of the newspaper employing the applicants . According to the applicants , that video had been part of a criminal case - file and not for public use . This information was not disputed by the Government . On DATE the programme was broadcast again by the national television service .

On DATE and CARDINAL DATE the first applicant lodged a criminal complaint about the blackmail which she and her colleagues had been subjected to and about the abuse of power committed by the QUANTITY police officers . She submitted , in particular , that the police officers had invited her and her colleagues to a sauna and secretly filmed them , after which they had attempted to blackmail them with the video .

NORP In examining the complaint the Prosecutor ’s Office questioned CARDINAL of the applicants , all of whom gave similar accounts of the facts of the case and accused the CARDINAL police officers of the secret filming and blackmail . The police officers were questioned too , and all denied having had close relationships with the applicants and going with them to a sauna on DATE . They denied any implication in the secret filming , the allegations of blackmail and those concerning the transmitting of the video to the national television service . GPE submitted that the video had been shot with his camera and that one of the applicants had accidentally switched the camera on and placed it on a shelf . He had discovered the video DATE and decided to take it to the national television service allegedly in order to prevent CARDINAL of the applicants from kidnapping his child . He alleged not to have known the applicants’ male friends who had been with them in the sauna on DATE .

ORG inquired with ORG whether the first applicant had ever received money in exchange for collaborating with the police and , in particular , whether she had helped bring about the arrest of a person called PERSON . In reply ORG did not answer the first question and stated that ORG had the right to have secret collaborators and remunerate them . ORG also informed ORG that there were no records on anyone named PERSON in its database .

On DATE ORG rejected the first applicants’ criminal complaint and refused to initiate criminal proceedings on the ground that the complaint was ill - founded . The first applicant appealed .

On DATE the hierarchically superior ORG quashed the above - mentioned decision on the ground that the investigation had not been thorough . In particular , it noted that the lower ORG had failed to determine how the receipt issued by CARDINAL of the applicants to ORG was transmitted to the national television service . It was also noted that the payment of money to that applicant was to be checked with ORG , the administrator of the public funds .

On DATE ORG again dismissed the first applicant ’s criminal complaint on the ground that the receipt of CARDINAL DATE did not constitute a ORG secret and that its disclosure to the national television service was not an offence . As to the complaint concerning the alleged abuse of power by the QUANTITY police officers , it was also found to be ill - founded because it had not been established that the applicants had ever assisted in bringing about the arrest of PERSON . The first applicant appealed against this decision and submitted , inter alia , that what she was remunerated for by ORG had not been established . She also submitted that the investigators had failed to examine the original video from the sauna and that they had failed to examine the complaint about blackmail .

On DATE ORG quashed the Prosecutor ’s decision of CARDINAL DATE on the ground , inter alia , that ORG had failed to examine the first applicant ’s complaint concerning blackmail .

On DATE the ORG again dismissed the criminal complaint lodged by the first applicant on the ground that the dissemination of defamatory information was not an offence under NORP law . The first applicant challenged the decision before the hierarchically superior prosecutor . However , the appeal was dismissed on DATE and a subsequent appeal was finally dismissed by ORG on DATE . On DATE ORG dismissed an extraordinary appeal lodged by the first applicant .

In the meantime , all the applicants lodged an action with a civil court seeking compensation for the breach of LAW and the national television service . They complained about the unlawful secret filming by the police in the sauna , the disclosure of the applicants’ collaboration with the police and the broadcasting of the video from the sauna on national television . The applicants also complained about the defamatory nature of some of the statements made on the programme aired on national television on DATE . For the alleged breaches they sought compensation in amounts varying CARDINAL .

On DATE ORG upheld the part of the applicants’ action against the national television service concerning the broadcasting of the video from the sauna and the defamatory statements made during the programme of DATE . The court considered that there was no public interest in broadcasting the video from the sauna . The rest of the applicants’ action was dismissed as ill - founded , the court finding that the applicants had failed to prove that the video had been shot by the QUANTITY police officers . The applicants appealed .

On DATE ORG upheld the ORG appeal against the judgment of ORG of DATE and found ORG responsible for the filming in the sauna on DATE , for blackmailing the applicants and for handing to the national television of the video of the sauna scene and of a copy of the receipt issued to ORG to one of the applicants . The finding was based on the statements made by all the applicants during the criminal investigation , on the fact that the programme of CARDINAL DATE contained images from the video of the arrest of the editor in chief of the newspaper employing CARDINAL of the applicants , a video which was not publicly available ( see paragraph CARDINAL above ) and on the presence in the programme of a copy of a receipt issued by CARDINAL of the applicants . The judges of ORG also recognised the man making a “ thumbs up ” sign in the video ( see paragraph CARDINAL above ) as being CARDINAL of the QUANTITY police officers . The court also found the national television service responsible for broadcasting the video from the sauna . The court ordered the defendants to pay the applicants non - pecuniary damage varying CARDINAL NORP lei ( MDL ) ( the equivalent of QUANTITY ( ORG ) ) and MDL MONEY ( the equivalent of ORG CARDINAL,CARDINAL ) and compensation for costs and expenses in the amount of MDL MONEY ( the equivalent of ORG CARDINAL,CARDINAL ) . All the parties lodged appeals on points of law .

On DATE ORG gave a final ruling in the case . It found the statements made during the programme of DATE to the effect that the applicant journalists had been bribed to publish an article and that they intended to kidnap a child defamatory . The court also found that the disclosure by ORG of one of the applicants’ collaboration with the police by way of disclosing a receipt written by her had breached her right to respect for her private life . A similar breach with regard to all the applicants was found in respect of the broadcasting of the video of the sauna scene on national television without their consent and in the absence of a public interest justification . The court also found that the secret filming in the sauna constituted an unjustified interference with the applicants’ right to privacy as guaranteed by LAW . However , relying on the outcome of the criminal investigation , the court found that there was insufficient evidence to conclude that the secret filming of the sauna scene had been carried out by employees of ORG . At the same time the court concluded that ORG was responsible for unlawfully transmitting to the national television service secret video material from a criminal case file , namely , a video of the arrest of the editor in chief of the newspaper employing the first and second applicants .

ORG ordered the national television service to pay each applicant MDL CARDINAL,CARDINAL ( the equivalent of EUR CARDINAL ) for non - pecuniary damage caused by the broadcasting of the video of the sauna scene . It also ordered the guest on the programme of DATE , GPE , to pay the second applicant MDL CARDINAL ( the equivalent of ORG ) for defamation and ORG to pay MDL CARDINAL ( the equivalent of ORG CARDINAL ) to the first applicant for disclosing her collaboration with the police . The court also ordered the defendants to pay the applicants MDL CARDINAL ( the equivalent of ORG CARDINAL,CARDINAL ) for costs and expenses . In reducing the amounts awarded by ORG , ORG argued that the awards had to be in compliance with LAW , in force at the time of the events ( see paragraph CARDINAL below ) .

The relevant provisions of the DATE LAW , in force until DATE :

“ ( CARDINAL ) Any natural or legal person shall be entitled to apply to the courts to seek the withdrawal of statements which are damaging to his or her honour and dignity if the person who made such statements can not prove that they are true .

( CARDINAL ) Where such information was made public by a media body , the court shall compel the publishing office of the media body to publish , not DATE after the entry into force of the judicial decision , a withdrawal of the statements in the same column , on the same page or in the same programme or series of broadcasts . ”

“ ( CARDINAL ) Damage caused to a person as a result of circulation of statements which do not correspond to reality and are damaging to his or her honour or dignity shall be compensated by the responsible natural or legal person .

( CARDINAL ) The amount awarded shall be determined by the court in each case and shall be between [ CARDINAL lei and CARDINAL lei ] if the information has been circulated by a legal person and between [ CARDINAL lei and CARDINAL lei ] if the information has been circulated by a natural person . ”


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

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

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

On DATE the applicant instituted proceedings against the insurance company ZT and his employer in ORG ( PERSON sodišče v PERSON ) seeking compensation in the amount of CARDINAL SIT ( MONEY ) for injuries he had sustained in an accident at work .

DATE and DATE the applicant lodged CARDINAL requests that a date be set for a hearing .

DATE and DATE the applicant lodged CARDINAL written submissions .

Hearings were held on DATE , DATE and DATE .

During the proceedings the court appointed a medical expert to prepare a forensic report .

On DATE the court partly upheld the applicant ’s claim . The written judgment was served on the applicant on DATE .

All parties appealed .

On DATE ORG ( PERSON v PERSON ) delivered a judgment partly upholding the appeals .

The judgment was served on the applicant on DATE .

Subsequently , ORG lodged an appeal on points of law with ORG sodišče ) .

NORP On DATE ORG partly upheld the appeal and changed the first- and second - instance court ’s judgments accordingly .

ORG judgment was served on the applicant on DATE .

On DATE the respondent Government were given notice of the present application .

On DATE the ORG Attorney ’s ORG sent a settlement proposal to the applicant under LAW of the LAW on the Protection of the Right to a Trial without undue Delay ( “ the CARDINAL Act ” ) . In its proposal , the ORG Attorney ’s ORG acknowledged the violation of the right to a trial within a reasonable time and offered to pay monetary compensation in the amount of MONEY ( ORG ) in respect of non - pecuniary damage and ORG CARDINAL for reimbursement of the costs and expenses connected with the case .

Subsequently , the applicant informed the State Attorney ’s ORG that he was not willing to accept the proposal as the sum offered was too low . At the same time , he proposed to settle the case for ORG CARDINAL in respect of non - pecuniary damage and approximately EUR CARDINAL in costs and expenses , in particular lawyer ’s fees .

As no settlement had been reached , the applicant , relying on LAW , paragraph CARDINAL of LAW , lodged a claim for just satisfaction with ORG on DATE . He claimed ORG CARDINAL,CARDINAL in respect of non - pecuniary damage sustained due to alleged excessive length of the proceedings and LAW in respect of the alleged violation of the right to effective remedy .

These proceedings are still pending .

ORG adopted on DATE a ORG on ORG , the “ FAC ” . Its goal is the elimination of backlogs in NORP courts and prosecutor ’s offices by DATE , by providing for structural and managerial reform of the judiciary . As a part of ORG adopted LAW ( Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja , ORG , No . DATE ) which was enacted on DATE .

Section CARDINAL of LAW lays down the following transitional rules in relation to the applications already pending before the ORG :

“ ( CARDINAL ) In cases where an infringement of the right to a trial without undue delay has already ceased and the party has filed a claim for just satisfaction with the international court before the date of implementation of this LAW , the ORG Attorney ’s ORG shall offer the party a settlement on the amount of just satisfaction within DATE of the date of receipt of the case referred by the international court for the settlement procedure . The party shall submit a settlement proposal to the ORG Attorney ’s ORG within DATE of receipt of the proposal of the ORG Attorney ’s ORG . The State Attorney ’s Office shall decide on the proposal as soon as possible and within DATE at the latest .....

( CARDINAL ) If the proposal for settlement referred to in paragraph CARDINAL of this section is not acceded to or ORG and the party fail to negotiate an agreement within DATE of the date on which the party filed its proposal , the party may bring an action before the competent court under this LAW . The party may bring an action within DATE of receiving the ORG Attorney ’s ORG reply that the party ’s proposal referred to in the previous paragraph was not acceded to , or after the expiry of the period fixed in the previous paragraph for ORG to decide to proceed with settlement . Irrespective of the type or amount of the claim , the provisions of LAW concerning small claims shall apply in proceedings before a court . ”

The following parts of LAW are relevant as regards the claim for just satisfaction :

“ When deciding on the legal remedies under LAW , the circumstances of the particular case shall be taken into account , namely : its complexity in terms of facts and law ; actions of the parties to the proceedings , in particular as regards the use of procedural rights and fulfilment of obligations in the proceedings ; compliance with rules on the set order for resolving cases , or with statutory deadlines for fixing preliminary hearings or for giving court decisions ; the manner in which the case was heard before a supervisory appeal or a motion for a deadline was lodged ; the nature and type of case and its importance for a party . ”

( CARDINAL ) Just satisfaction shall be provided by :

i. payment of monetary compensation for damage caused by an infringement of the right to a trial without undue delay ;

ii . a written statement from ORG that the party ’s right to a trial without undue delay has been infringed ;

iii . the publication of a judgment that the party ’s right to a trial without undue delay has been infringed . ”

“ ( CARDINAL ) Monetary compensation shall be payable for non - pecuniary damage caused by an infringement of the right to a trial without undue delay . Strict liability for any damage caused shall lie with GPE .

( CARDINAL ) Monetary compensation for individual finally decided cases shall be granted in amounts MONEY .

( CARDINAL ) Territorial jurisdiction for decision - making on an action for damages under LAW shall lie with the local court in whose district the plaintiff is a permanent or temporary resident or has registered office .

( CARDINAL ) Irrespective of the type or amount of the claim , the provisions of LAW concerning small claims shall apply in proceedings before a court .

( CARDINAL ) Appeal on points of law shall be excluded for disputes on damage under LAW . ”

( CARDINAL ) The ORG Attorney ’s Office shall pay monetary compensation and the party ’s costs of the proceedings on the basis of a final court decision which has established an infringement of the right to a trial without undue delay in the proceedings , under LAW of the present LAW . ”

“ Funds ... shall be earmarked in LAW within the framework of the financial plan of ORG . ”

NORP The general provisions of LAW ( Zakon o pravdnem postopku , uradno prečiščeno besedilo , ORG , no . MONEY ) concerning the role of the domestic courts in determining costs and expenses of the proceedings , including lawyer ’s fees , apply also to the proceedings concerning small claims ( sections CARDINAL to CARDINAL and CARDINAL ) .


Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property);Pecuniary damage - reserved;Non-pecuniary damage - reserved

Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicants , spouses , were born in DATE and DATE respectively and live in GPE .

At the time of the events they owned a flat at FAC in GPE , in the neighbourhood of ORG of ORG of the GPE PERSON . The flat had CARDINAL rooms and measured CARDINAL m² . It was occupied by the applicants , their CARDINAL minor children , and a mother - in - law .

NORP In DATE ORG decided that for the purpose of the gallery ’s reconstruction the applicants’ building was to be vacated and converted into non - residential LOC ( Decree CARDINAL-PP ) . The development and resettlement of the residents were to be financed by ORG , a private NORP company . Upon the project ’s completion , PERCENT of the building was to go to ORG , and PERCENT to ORG . Insofar as relevant , Decree CARDINAL-PP read as follows :

“ For the purpose of an all - inclusive reconstruction of the territory adjacent to the [ Gallery ] and in accordance with the developed architectural planning concept , the Government of GPE decrees :

To accept the proposal of ORG to include ... the building located at LOC into the single investment project of building and reconstruction works at GPE .

To take into account the agreement of the investor ORG – to finance the building and reconstruction of the buildings .

To adopt an agreement that after the reconstruction would divide the non - residential LOC at FAC as follows : PERCENT to ORG , PERCENT to ORG .

To take into account the investor ’s agreement to finance the resettlement of tenants and owners from LOC ... to own or acquired LOC .

To complete the building and reconstruction works in DATE .

That the Prefect of LOC together with ORG should formalise the conversion of LOC into non - residential LOC . ”

The applicants opposed this project and in DATE they challenged Decree CARDINAL-PP in a court .

In DATE the authorities requested ORG , a public surveying agency , to deliver a report on the building ’s technical condition . The request was phrased to be “ in execution of the assignment by the First Deputy of the prefect of ORG on the subject of finding [ the building ] a dangerous structure ” . PERSON found that the building was under the threat of collapse .

NORP In DATE ORG offered the applicants to choose a replacement flat from a CARDINAL - room flat of CARDINAL m² at CARDINAL Udaltsova Street , a CARDINAL - room flat of CARDINAL m² at CARDINAL FAC , a CARDINAL - room flat of CARDINAL m² at CARDINAL FAC , and a CARDINAL - room flat of CARDINAL m² at CARDINAL FAC . The applicants rejected these offers .

In DATE the Moscow Government classified the building as a dangerous structure and ordered its conversion into non - residential premises ( Decree CARDINAL-RP ) . Insofar as relevant , Decree CARDINAL-RP read as follows :

“ [ It is hereby ordered ] :

To classify the residential building located at LOC as a dangerous structure and subsequently rebuild it into non - living LOC .

To take into account that

In accordance with [ Decree CARDINAL-PP ] the investor is ORG

Tverskaya Finance B.V. is the beneficiary of a lease ... of the land plot for the reconstruction and building of the complex of the buildings including LOC .

To establish that the residents of the dangerous building are to be resettled to residential LOC acquired at the investor ’s expense .

That the Prefect of the LOC shall

Together with ORG resettle the residents from the dangerous building at the investor ’s expense and to the LOC acquired by the investor in DATE .

Charge the transportation costs related to the resettlement to the investor . ”

NORP In DATE the applicants requested NPTs GPE , a private surveying agency , to deliver an alternative report on the building ’s technical condition . PERSON found that the building was safe and could be repaired without resettling the residents .

On DATE the ORG of GPE found Decree CARDINAL-PP lawful because , among other things , the building had been classified dangerous . The court wrote :

“ The [ applicants ] affirm that the Decree transfers their property to ORG But this affirmation is wrong because the Decree merely grants to the investor the right to finance the building works , reconstruction , and restoration of the buildings , and to subsequently acquire a part in those buildings .

There is no merit either in [ the applicants’ ] argument that their building belongs to the cultural heritage , is a monument of history and culture , and hence can not be reconstructed .... [ The applicants ] have provided no evidence that CARDINAL/CARDINAL–CARDINAL Znamenka is in ORG of cultural heritage and monuments .

[ The applicants ] consider that their building is not dangerous and can be lived in . This argument is belied by the survey report of DATE by PERSON ... and by [ Decree CARDINAL-RP ] .

[ The applicants ] consider that there had been no legal grounds for the conversion of their building into non - living LOC . But it has been shown that the residence at LOC has been found dangerous and unfit for permanent living . It is for this reason that the building has been converted into non - living LOC ....

[ The applicants ] also claim that [ Decree CARDINAL-PP ] violates their housing rights and deprives them of the flat they own . This claim is hollow . It is belied by the contents of the case file and , in the first place , by the Decree itself , because it contains no clause on dispossession . ”

On DATE ORG upheld that judgment .

Tverskaya Finance bought a flat at CARDINAL FAC and offered it to the applicants as replacement . The flat had CARDINAL rooms and measured CARDINAL m² . The applicants rejected this offer , mainly because they did not wish to change the neighbourhood and because the new flat was , in their view , of a worse quality . In DATE Tverskaya Finance and ORG asked a court to evict the applicants .

On DATE the ORG of GPE evicted the applicants . The court found , among other things , that after the reconstruction the building would be used as non - residential LOC , and that the replacement flat was larger and dearer . Despite the applicants’ objection , the court relied on a valuation report commissioned by ORG that evaluated GPE at RUB CARDINAL and ORG at RUB CARDINAL . The court wrote :

“ As the flat is [ the applicants’ ] only residence , the replacement flat should be of equal quality . The court considers that a replacement flat ... is of equal quality if ... it is located within the borders of the same town and is of the same size or larger .

The court considers that the flat to which the plaintiffs are asking to resettle [ the applicants ] meets these criteria fully . It is located within GPE ’s administrative border , and even in the same district where [ the applicants’ ] family lives now . The flat meets sanitary and technical requirements , is fit for living , and has all comforts . Its size and price exceed the [ applicants’ ] current flat .

The court considers therefore that the [ applicants’ ] resettlement to ORG not only respects their rights and freedoms but also improves their living conditions .

The fact that CARDINAL/CARDINAL–CARDINAL Znamenka is destined to be rebuilt and not demolished can not [ prevent the eviction ] , because ... in future the building will be used for non - living purposes .

The court ignores the [ applicants’ ] argument that the resettlement will infringe the housing rights and interests of their children who go to a nearby school and will be unable to commute on the metro . At ORG there are also secondary schools that the [ applicants’ ] daughter will be able to attend . As to the son ’s having to commute on the metro , the evidence submitted shows no medical contra - indications to it . ”

On DATE ORG upheld that judgment .

NORP In DATE the applicants moved to CARDINAL FAC .

In DATE ORG granted the whole of the NORP building to GPE Finance ( Decree MONEY ) . Insofar as relevant , Decree MONEY read as follows :

“ For the purpose of the completion of the implementation of the investment building project , reconstruction and restoration of the buildings located at CARDINAL/CARDINAL Znamenka ... it is hereby ordered :

To extend for ORG the term of the building works , reconstruction and restoration of the buildings ... for not DATE ... without penalties .

To take into account the pledge of ORG to

Carry out emergency works and full restoration and adaptation of PERSON .

To take into account the fact that

In the course of the implementation of the investment project the investor has resettled the residents ... from LOC .... Tverskaya Finance B.V. has received property rights to CARDINAL,CARDINAL.CARDINAL m² of LOC at LOC , including CARDINAL m² of residential LOC and CARDINAL m² of non - residential LOC ....

To take into account the parties’ agreement to the following changes in the distribution of the property upon the project ’s completion :

As regards the second part of the project the contractual distribution of property between the parties shall be as follows :

PERCENT of CARDINAL/CARDINAL–CARDINAL Znamenka ... shall be transferred to the investor ’s property . ”

According to the applicants , the building has been rebuilt into a premium residential property . According to the Government , the construction is still underway , and the building will house commercial and administrative LOC .

The Government based this statement on information available from the website located at http://znamenkaCARDINAL.ru . At the time of the ORG ’s examination of the case , that website shows that LOC is a block of flats offered for sale . The applicants’ former flat on the third floor appears to have been reduced to a flat of CARDINAL m² ( marked on the plan as “ Flat F ” ) . The website lauds the uniqueness and historicity of the neighbourhood , quotes poetry ( “ PERSON незаменимая земля ” – “ Inimitable GPE ’s irreplaceable land ” ) , and extols the sights of the nearby ORG the FAC , ORG , ORG , and GPE .

In DATE the first applicant requested a court to order PERSON to make available its survey report . DATE different courts several times refused to examine this request due to the applicant ’s failure to comply with technical formalities , to pay a court fee , and to respect jurisdiction . On DATE ORG finally rejected the request because it was aimed at discovery of exhibits used in the applicant ’s other litigation and hence was not amenable to separate proceedings .

NORP In DATE the first applicant requested ORG to invalidate the contract between the gallery , ORG , and ORG concerning the LOC development . On DATE ORG refused to examine that request because the first applicant no longer lived in Znamenka and hence was not personally affected by the contract .

NORP Under section CARDINAL of the LAW , nobody can be deprived of his possessions save by a judicial decision . The compulsory taking of property for ORG needs is possible only on condition of an equivalent preliminary reimbursement .

Under section CARDINAL of LAW of DATE in force at the material time , if a building containing privatised flats was to be demolished pursuant to applicable laws , the local authority or the demolishing enterprise was , with the evicted ORG consent , to provide them with an equivalent residence or other compensation .


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

Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in PERSON .

The applicant works as a teacher in PERSON . In DATE he was also a member of ORG ( PERSON w PERSON ) .

NORP In DATE the applicant wanted to publish an article in the local newspaper ( Gazeta Kazimierska ) on alleged financial irregularities in the municipality . As the newspaper had been closed down , the applicant published the article himself . On DATE he distributed it in the form of leaflets .

NORP In his article entitled “ Information Bulletin : What the president of the City Council and the City Council Board have to hide ” , he referred to CARDINAL municipality officials . He stated that PERSON had been so busy interfering with the employment policies of the local schools that they had not had time to administer the municipal educational funds properly . As a consequence teachers and employers of the municipal educational institutions had not received allowances ( for protective clothing ) which under relevant legal provisions they should have received . In addition , the physical education teachers had received lower salaries without a certain PERCENT allowance . In the applicant ’s opinion the teachers did not claim this allowance as they had been afraid to lose their jobs . When the applicant had informed the mayors - T. B. , PERSON and the president of ORG PERSON the financial irregularities , he had been dismissed from his post . He had eventually been reinstated .

The applicant further claimed that the municipality had received subsidies from the ORG to provide transport for children to schools . However , the schools had been required to pay an additional contribution to the municipality . The applicant maintained that PERSON had known about this situation but had failed to take appropriate action . In addition she had not acted for the benefit of the school employees . Parties which had been organised for city council members had been wholly financed from public funds .

Lastly , the applicant stated that he was not surprised that PERSON had not replied to an inquiry from ORG ( PERSON ) as the municipal budget surplus had probably been used to pay bonuses and per diem allowances for the council members .

He concluded :

“ I encourage the readers to reconsider whether DATE the city was governed by the right people ; whether these people can be offered yet another term of office in the DATE elections .

Whether during DATE they have indeed acted honestly for the common well - being of the ORG community or in their own personal interests .

Can these people be trusted again with the city council mandates ? ”

On TIME the NORP group in ORG ( representing PERSON and PERSON ) instituted proceedings against the applicant under LAW of LAW . The applicant had not been aware of that fact .

On DATE the applicant ’s mother was informed that the applicant was supposed to appear before the court DATE at TIME She could not inform the applicant as he was in GPE on DATE and DATE .

On DATE ORG ( PERSON ) held a hearing and gave a decision . It ordered the applicant to publish in the local newspaper ORG an apology and a statement that he had included untrue information in his leaflet . It further ordered the applicant to pay a fine of MONEY ( PLN ) ( approx . MONEY ( ORG ) ) for the benefit of ORG in GPE .

On DATE the applicant went personally to ORG and was informed about the decision taken on DATE . On DATE he lodged an appeal .

The local elections took place on DATE .

On DATE ORG ( Sąd Apelacyjny ) quashed the first - instance decision and remitted the case . The court considered that the applicant had not been duly summoned to the hearing held on DATE . The applicant had not been able to defend himself in person and accordingly the proceedings had been invalid .

On DATE ORG gave a decision . The court ordered the applicant to publish in the local newspaper ORG an apology for the fact that he had included untrue information in his leaflet . It further ordered the applicant to pay a fine of ORG MONEY ( approx . EUR CARDINAL ) for the benefit of ORG in GPE . The court held that the applicant ’s article concerned CARDINAL municipal officials but amongst them CARDINAL were members of the NORP group . None of them had been elected to ORG in the local elections . The court heard evidence from these persons and considered that the applicant ’s statements had been untrue . The article distributed by the applicant contained statements which lacked any factual basis . In addition , it could have caused the fact that ORG and PERSON had not been elected to the city council and PERSON had received fewer votes . The court further stressed that the applicant had not mentioned that he had a criminal record . On CARDINAL DATE he had been convicted of participation in a hooligan scuffle and sentenced to DATE imprisonment , suspended for DATE . Lastly , in the court ’s opinion , the applicant had deliberately distributed the leaflet during the election campaign . The court did not quote the statements made by the applicant in his article but made a general assessment of the content of the article .

On DATE ORG dismissed an appeal by the applicant as lodged outside the prescribed time - limit . The court considered that as the proceedings had been conducted under LAW the appeal should have been lodged within TIME .

On DATE the applicant asked to be allowed to lodge an appeal out of time . In his appeal the applicant claimed that since DATE he had informed various institutions about financial irregularities on the part of the municipal authorities . He added that he had planned to publish his article in a local newspaper , ORG ; however the newspaper had been closed down . Relying on LAW he maintained that he had been punished for criticising the local authority . However , as it emerged from ORG Rights’ case - law the limitations of acceptable criticism were wider as regards politicians than as regards private individuals . He further stressed that the court had based its opinion , that the applicant ’s statements were untrue , only on the testimonies of the persons concerned by the article . The court had not referred to other pieces of evidence such as documents submitted by the applicant . He further claimed that ORG had not heard evidence from him . Finally , he stressed that in his article he had never mentioned the NORP group but had only referred to the municipal officials .

On DATE ORG allowed the applicant to appeal out of time .

On DATE ORG gave its decision . The court amended the first - instance decision , in that it ordered the applicant to pay ORG CARDINAL PLN ( approx . CARDINAL ) for the benefit of ORG in GPE and dismissed the remainder of his appeal . The court did not quote passages from the leaflet but made a general assessment of the content of the article . With reference to the applicant ’s allegations that the process of obtaining evidence had been unfair , the court held that the applicant could have produced evidence of this during the hearing on CARDINAL DATE ; however he had not done so . It further considered that the applicant ’s untrue statements could not be considered as part of “ acceptable criticism ” within the meaning of LAW . It considered that proceedings provided for under section CARDINAL of LAW were aimed at ensuring the proper conduct of the electoral campaign by preventing infringements of the personal rights of those standing for election . ORG considered that the content of the leaflet put the claimants in an unambiguously negative light as candidates for the local council and was aimed at preventing them from being elected . The court in particular referred to the concluding remarks of the article . ORG considered that they were incompatible with section CARDINAL § CARDINAL of LAW . In these circumstances ORG found that the decision of ORG was correct .

Section CARDINAL of the Law of DATE on Elections to GPE , ORG ( ORG wyborcza do rad gmin , rad powiatów i sejmików województw ) ( “ the LAW ” ) provided , in so far as relevant :

“ § CARDINAL . If posters , slogans , leaflets , statements or other forms of propaganda and campaigning contain untrue data and information , a candidate standing for local election or a representative of an electoral committee has the right to make an application asking ORG to :

CARDINAL ) NORP order the confiscation of such materials ,

CARDINAL ) NORP issue an injunction restraining [ the defendant ] from publishing such data and information ,

CARDINAL ) NORP order the information to be corrected ,

CARDINAL ) NORP order [ the defendant ] to apologise to the aggrieved party ,

CARDINAL ) NORP order [ the defendant ] to pay to a charity up to PLN CARDINAL,CARDINAL ,

CARDINAL ) NORP order [ the defendant ] to pay to the claimant up to FAC CARDINAL,CARDINAL in damages .

§ CARDINAL . ORG , sitting as a single judge , shall examine the application referred to in DATE within TIME in [ civil ] non - contentious proceedings . [ ... ] . The court shall serve on the interested party referred to in § CARDINAL , the relevant regional electoral commissioner and the person obligated to execute the court ’s decision , without undue delay , a decision terminating the proceedings in the case .

§ CARDINAL . Decisions of ORG may be appealed to ORG within TIME of the time they are pronounced . ORG , sitting as a panel of CARDINAL judges , shall examine the appeal in [ civil ] non - contentious proceedings , according to the same procedure and within the time - limit referred to in § CARDINAL . No appeal shall lie against decisions of ORG and any decision shall be enforceable with immediate effect . ”

On DATE ORG amended section CARDINAL § CARDINAL of LAW by repealing subsection CARDINAL , which allowed a claimant to seek compensation from a person who has divulged untrue information about him / her .

On DATE ORG gave a decision in case no . I ACz CARDINAL/CARDINAL in which it stated :

Section CARDINAL of the LAW applies to factual statements contained in materials pertaining to an electoral campaign . It does not apply to conclusions or opinions based on those factual statements . Only factual statements have an objective character . Every opinion is subjective and depends on the point of view of the person holding it .

No one can be prevented from expressing his views and making judgments as long as they do not infringe the rights of others . However , even an infringement of personal rights which does not meet the conditions specified in section DATE can not be afforded protection under that provision which is an exception [ to the general rule ] and thus can not be interpreted extensively .

On DATE ORG gave a decision in the case no . IACz CARDINAL/CARDINAL in which it held :

“ Section CARDINAL of LAW [ ... ] is an exceptional provision and as such can not be construed extensively . That provision is applicable solely to untrue information included in electoral materials . It is not applicable to comments and opinions concerning the character of a candidate [ standing for election ] . If such comments and opinions infringe the candidate ’s personal rights , he may seek redress under the general rules [ of protection of personal rights ] , and not on the basis of LAW of LAW . ”


The application was lodged with the ORG by a mother , PERSON , on behalf of herself and her CARDINAL children PERSON , PERSON , PERSON and PERSON . PERSON , born in DATE , is a NORP national . Her CARDINAL children were born in DATE , DATE and DATE and are NORP and NORP nationals . Ms GPE currently lives in GPE , GPE , while the children ’s whereabouts are unknown .

The respondent Government are represented by their Agent , Mrs A. ORG , PERSON , of ORG .

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

This application is closely related to application no . CARDINAL/CARDINAL , declared inadmissible by ORG on DATE .

That application had been lodged by Ms GPE on behalf of her CARDINAL children . ORG left open the question as to whether PERSON had to be regarded as an applicant in her own right .

PERSON , a NORP national , had been married to a NORP national , Mr O. , with whom she has CARDINAL children ( PERSON , PERSON and PERSON ) . She has another daughter by a first marriage ( PERSON ) . After having left Mr O. in DATE , ORG ( GPE ) granted PERSON sole custody of PERSON , PERSON and PERSON , while Mr O. was granted access . The court ordered Ms GPE not to remove the children from GPE , unless Mr O. consented to it . In DATE Ms GPE and the applicants travelled to GPE for a DATE stay after having obtained Mr O. ’s consent . However , they did not return to GPE after DATE had lapsed . PERSON filed a petition for divorce in GPE and requested the sole custody of PERSON , PERSON and PERSON . However , ORG then granted Mr O. the children ’s sole custody . On DATE the Zweibrücken ORG ( GPE ) rejected Mr O. ’s request to return PERSON , PERSON and PERSON under LAW on the Civil Aspects of International Child Abduction ( “ LAW ” ) . On DATE the ORG revoked that decision and ordered Ms Paradis to return the children to Mr O. On DATE ORG refused to admit the complaint lodged by Ms Paradis on behalf of PERSON , PERSON and PERSON .

On DATE ORG ordered the court bailiff to execute ORG decision of DATE . However , on DATE his attempts failed due to the applicants’ explicit refusal . On DATE the ORG vested the court bailiff with the right to use force against the applicants .

On DATE ORG refused to admit the ORG complaint .

On DATE the ORG found that there was no violation of the applicants’ rights under LAW and declared the application inadmissible as being manifestly ill - founded .

On DATE the court bailiff again tried in vain to execute ORG decision of DATE . PERSON declared that she had already brought the children to GPE DATE and refused to disclose their whereabouts . On CARDINAL DATE ORG ordered PERSON coercive detention ( ORG ) according to section QUANTITY on Non - Contentious Proceedings ( Gesetz über die Angelegenheiten der freiwilligen PERSON ) in order to obtain the children ’s whereabouts ( see “ Relevant domestic law ” below ) . It elaborated that ORG had already decided in DATE that the children should be returned to PERSON and that any further delay in executing this decision had to be avoided . The court furthermore found that the other coercive measure under LAW of LAW , a penalty payment , would not prove to be successful . Under those circumstances the court concluded that LOC detention was proportionate , but clarified that she would be released immediately once the children were returned . It furthermore held that due to the urgent nature of the case it had not been called for to hear PERSON in advance . In this respect the court also pointed out that it had expected Ms GPE to thwart her coercive detention .

On DATE ORG rejected the ORG complaint and confirmed the lower court ’s reasoning .

On DATE ORG refused to admit Ms LAW complaint .

The applicant PERSON was detained for DATE from DATE to DATE . She did not disclose the children ’s whereabouts and they appear to be still in hiding .

“ ( CARDINAL ) If somebody is obliged by court order to carry out an action which merely depends on his will , to omit an action or to tolerate an action , the court may , unless the law provides differently , impose a penalty payment in order to ensure the compliance with its order . If a person has to be returned , the court may order coercive detention independently from the penalty payment . ...

( CARDINAL ) .... Coercive detention ( section CARDINAL ) shall be announced , unless the execution of the court order is particularly urgent or if it has to be expected that the execution of coercive detention will be thwarted . ... Sections CARDINAL , CARDINAL to CARDINAL , CARDINAL § CARDINAL and CARDINAL and sections CARDINAL and CARDINAL of the Civil Procedure Law Code apply accordingly to the execution of coercive detention . ... ”

Section CARDINAL

“ The detention may not exceed DATE . After the completion of DATE the obligor ( Schuldner ) is to be released ex officio . “