Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time) (Montenegro);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) (Montenegro)

András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen

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

On DATE ORG ( PERSON ) in GPE ordered that the applicant be reinstated by ORG ( GPE bolnički PERSON ) , a ORG - run medical institution .

On DATE this judgment became final , and on DATE it was confirmed by ORG ( PERSON ) in GPE at third instance .

On DATE the Clinical Centre of GPE informed the applicant that it could not comply with the judgment in question , but would rather seek an alternative solution .

On DATE ORG issued an enforcement order , which decision was confirmed on DATE .

On DATE the Clinical Centre of GPE concluded an agreement with ORG in PERSON , also a ORG - run medical institution , whereby the latter accepted the applicant as its employee .

On DATE the applicant informed ORG that he did not approve of this arrangement .

On DATE ORG in PERSON issued a decision to the effect that the applicant would become its employee as of DATE .

On DATE the applicant received this decision .

On DATE , as submitted by ORG , the applicant concluded LAW with ORG of GPE whereby his employment had been terminated as from DATE and both parties waived any further claims in this regard .

On DATE the applicant withdrew his enforcement request .

On DATE ORG terminated the enforcement proceedings and all the enforcement activities which had been carried out in that regard . On DATE this decision became final .

On DATE , upon the applicant ’s separate claim , ORG in GPE ordered ORG to pay the applicant MONEY ( “ EUR ” ) for salary arrears for DATE and DATE . This judgment was upheld by ORG on DATE . It would appear from the case file that this judgment was enforced on an unspecified date thereafter .

On DATE the applicant started to work in ORG for DATE . It would appear from the case file that on an unspecified date thereafter his temporary employment was transformed into a permanent one .

Article CARDINAL of the LAW provides that the ORG shall rule on a constitutional appeal lodged in respect of an alleged violation of a human right or freedom guaranteed by LAW , after all other effective legal remedies have been exhausted .

The LAW entered into force on DATE .

Section CARDINAL provides that a constitutional appeal may be lodged against an individual decision of a state body , an administrative body , a local self - government body or a legal person exercising public authority , for violations of human rights and freedoms guaranteed by the LAW , after all other effective domestic remedies have been exhausted .

Sections CARDINAL provide additional details as regards the processing of constitutional appeals . In particular , section CARDINAL provides that when ORG finds a violation of a human right or freedom , it shall quash the impugned decision , entirely or partially , and order that the case be re - examined by the same body which rendered the quashed decision .

The Act entered into force in DATE .

This Act provides , under certain circumstances , the possibility to have lengthy proceedings expedited by means of a request for review ( kontrolni zahtjev ) , as well as an opportunity for claimants to be awarded compensation by means of an action for fair redress ( tužba za pravično zadovoljenje ) .

Section CARDINAL § CARDINAL provides that a request for review can be filed with the court which is dealing with the case at the relevant time .

Section CARDINAL § CARDINAL provides that an action for fair redress shall be filed with ORG DATE after the date of receipt of the final decision rendered in the impugned proceedings or , within the enforcement procedure , DATE after the date of receipt of the final decision issued upon the request for review .

Section CARDINAL further provides that this Act shall be applied retroactively to all proceedings from DATE , but that the duration of proceedings before that date shall also be taken into account .

The Act entered into force on DATE , but contained no reference to applications involving procedural delay already lodged with the ORG .

Section CARDINAL § CARDINAL provided that enforcement proceedings were urgent .

Sections CARDINAL - CARDINAL set out details as regards enforcement in cases of reinstatement .

The Act entered into force on DATE , thereby repealing LAW CARDINAL . In accordance with section CARDINAL of this Act , however , all enforcement proceedings instituted prior to DATE were to be concluded pursuant to LAW .

LAW required an employee ’s consent in order for him to be transferred to another employer .

LAW DATE entered into force on DATE thereby repealing LAW DATE . LAW of the former , however , also requires the employee ’s consent for his transfer to another employer .

DATE and DATE CARDINAL actions for fair redress were submitted , of which CARDINAL were dealt with and CARDINAL were still being examined . In CARDINAL case the courts awarded the plaintiff compensation for non - pecuniary damage in respect of the length of civil proceedings . DATE and DATE CARDINAL actions for fair redress were examined , in CARDINAL of which the courts awarded damages .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Mr PERSON , a lawyer practising in ORG .

ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON of ORG .

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

On DATE the applicant lodged a request with ORG for a review of the lawfulness of the construction of a sewage system on his estate . On DATE the ORG discontinued the proceedings as it found that the departure from the construction permit had not been serious . The applicant appealed .

On DATE ORG quashed the decision as it found that the departure from the construction permit was serious enough to warrant an examination of whether the construction was lawful .

Concurrently , on DATE the applicant lodged a request for annulment of the construction permit given to the investor - the GPE ( Gmina PERSON ) , by the Director of ORG ( PERSON ) . On DATE the GPE ( PERSON w PERSON ) annulled the construction permit given to the investor .

On DATE ORG issued a decision by which it found the departure from the construction permit to be serious , but also found that the applicant had given his consent to this . It obliged the investor to bring the works into conformity with the law . The applicant appealed , challenging the finding that he had consented to a departure from the construction permit .

On DATE ORG upheld the decision . On DATE the applicant lodged a complaint with ORG .

On DATE ORG gave a judgment by which it quashed the decisions of DATE and CARDINAL DATE . It found the construction unlawful as being in breach of the construction permit .

On DATE the applicant lodged a complaint about the inactivity of ORG . On DATE ORG issued a decision in which it upheld the complaint .

On DATE ORG gave a decision in which it found that the sewage system works had manifestly departed from the construction permit and ordered the investor to make the necessary changes to the construction in order to bring it into conformity with the law . The applicant appealed , seeking the demolition of the construction works .

On DATE ORG quashed the decision and remitted the case to a lower authority .

On DATE ORG issued a decision ordering the investor to demolish the sewage system built on the applicant ’s estate . The applicant ’s opponent appealed .

On DATE ORG upheld the decision of DATE . On DATE the applicant ’s opponent appealed .

On DATE ORG quashed the judgment of DATE and the decision of DATE . On DATE the applicant appealed .

On DATE the cassation appeal was rejected as the applicant had failed to pay court fees within the prescribed time - limit .

For a description of domestic law , see : PERSON v. GPE , no . CARDINAL , judgment of DATE .

On DATE the Law of CARDINAL DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłok i- “ the CARDINAL Act ” ) entered into force . It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings . A party to pending proceedings may ask for the acceleration of those proceedings and/or just satisfaction for their unreasonable length under LAW read in conjunction with section CARDINAL ) of LAW .

On DATE ORG ( Sąd Najwyższy ) adopted a resolution ( no . III SPP CARDINAL/CARDINAL ) in which it ruled that while the DATE Law produced legal effects as from the date of its entry into force ( DATE ) , its provisions applied retroactively to all proceedings in which delays had occurred before that date , but only when they had not yet been remedied .


Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The first applicant was born in DATE and lives in GPE . The second applicant was born in DATE and lives in GPE .

On DATE the first applicant instituted proceedings in the NORP ORG of GPE against the enlistment office , seeking recalculation of his pension .

On DATE the court rejected the first applicant 's claim as unsubstantiated . On DATE ORG upheld the judgment of the first - instance court . In the operative part of its decision ORG stated that the first applicant could challenge the decision before ORG within DATE .

On DATE the first applicant lodged a cassation appeal with ORG .

On DATE a judge of ORG ruled that the first applicant 's cassation appeal should be referred to ORG , stating that the latter court was the court of cassation in administrative cases pursuant to LAW .

In a ruling of CARDINAL DATE a judge of ORG dismissed the first applicant 's cassation appeal as having been lodged out of time . The judge , relying on LAW paragraph CARDINAL of LAW , held that the first applicant 's cassation appeal ought to have been lodged within DATE of the date of the decision of ORG .

In a letter of CARDINAL DATE the First Vice - President of ORG informed the first applicant that he could resubmit his cassation appeal with a request for an extension of the expired time - limit .

On DATE the first applicant resubmitted his cassation appeal to ORG .

NORP In DATE the first applicant received a letter from ORG , enclosing a copy of a ruling dated DATE . By that ruling , ORG declined jurisdiction to consider the first applicant 's cassation appeal on the grounds that the case had been determined by ORG under the rules of civil procedure subsequent to the entry into force of LAW on DATE , and thus that ORG was the court of cassation for the first applicant 's case .

The rulings of DATE and DATE and DATE each stated that they were final and not subject to appeal .

On DATE the second applicant instituted proceedings in ORG against his former employer , ORG , seeking recovery of salary arrears .

On DATE the court rejected the second applicant 's claim , doing so partly on the basis that it found the claim to be unsubstantiated and partly as having been lodged out of time . On DATE ORG upheld the judgment of the first - instance court . In the operative part of its decision ORG stated that its decision could be appealed against to ORG by way of a cassation appeal within DATE .

On DATE the second applicant lodged a cassation appeal with ORG .

On DATE a judge of ORG dismissed the second applicant 's cassation appeal , holding that it was to be considered by ORG .

On DATE the second applicant submitted his cassation appeal to ORG .

On DATE a judge of ORG found that the appeal fell to be dealt with by ORG , as the case had been considered by the lower courts under the rules of civil procedure after the entry into force of LAW on DATE . The judge ruled that the cassation appeal was to be returned to the second applicant , together with an explanation of the right to lodge a cassation appeal with ORG . The ruling was final and not subject to appeal .

The relevant provisions of the LAW read as follows :

“ In GPE the system of courts of general jurisdiction is formed in accordance with the principles of territoriality and specialisation .

ORG is the highest judicial body in the [ hierarchy ] of courts of general jurisdiction .

The respective higher courts are the higher judicial bodies of specialised courts .

Courts of appeal and local courts shall operate in accordance with the law .

The creation of extraordinary and special courts shall not be permitted . ”

NORP The relevant provisions of LAW of DATE , as worded at the material time , read as follows :

“ ... Legislation on civil court procedure shall establish procedures for the consideration of cases concerning disputes arising from legal relations in the civil , family , labour and collective farming spheres , cases concerning administrative legal relations ... ”

“ The court of cassation instance is ORG of GPE . ”

“ The parties and other persons taking part in the case ... have the right to challenge in cassation judgments and rulings adopted by a first - instance court which have been considered by a court of appeal , as well as rulings and judgments of the court of appeal .

The grounds for [ an appeal ] in cassation are the wrongful application by the court of norms of substantive law or a violation of norms of procedural law . ”

“ The question of referral ... shall be decided by a court composed of CARDINAL judges ...

In the absence of grounds for referral ... the court shall adopt a ruling dismissing the appeal .

This ruling ... shall not be subject to appeal .

If the court has dismissed the cassation appeal , the case shall be returned to the court of first instance ... ”

The relevant provisions of LAW , as worded at the material time , read as follows :

“ CARDINAL . The courts shall consider , within the framework of civil court procedure , cases ... concerning legal relations in the civil , housing , land , family and labour spheres , as well as other legal relations , provided they do not fall to be considered under the rules of a different type of court procedure ... ”

“ CARDINAL . The court of cassation instance in civil cases is the court which is envisaged by LAW as the court of cassation in such cases . ”

“ CARDINAL . The parties and other persons taking part in the case ... have the right to challenge in cassation :

( CARDINAL ) judgments of the court of first instance after they have been reviewed on appeal , judgments and rulings of the appeal court adopted [ in the course of ] the consideration [ of the case ] on appeal ...

NORP The reporting judge shall refuse to open cassation proceedings if :

( CARDINAL ) the case does not fall to be examined in cassation within the framework of civil procedure ...

A copy of the ruling ... refusing to open cassation proceedings , together with the materials annexed to the appeal , shall be forwarded to the appellant , and the cassation appeal shall remain with the court of cassation . ”

Claims and complaints in cases concerning administrative [ matters ] ... lodged before the entry into force of this Code ... shall be considered pursuant to [ the rules of ] LAW ... ”

The relevant provisions of LAW DATE , as worded at the material time , read as follows :

“ CARDINAL . NORP The administrative courts shall enjoy jurisdiction over :

( CARDINAL ) disputes between physical persons or legal entities and subjects vested with public powers concerning the latter 's decisions ... actions or lack of action ;

( CARDINAL ) NORP disputes relating to the recruitment , careers and termination of public service of citizens ... ”

The Higher Administrative Court of GPE shall review in cassation the judicial decisions of local administrative courts and administrative courts of appeal ... ”

“ CARDINAL . The court of cassation instance in administrative cases is ORG of GPE . ”

“ CARDINAL . The parties and other persons taking part in the case ... have the right to challenge in cassation judicial decisions of the court of first instance after they have been reviewed on appeal , as well as judicial decisions of the court of appeal in full or in part ...

A violation by a court of norms of substantive or procedural law shall constitute a ground for [ an appeal ] in cassation . ”

The reporting judge shall refuse to open cassation proceedings in the case if :

( CARDINAL ) the case does not fall to be examined in cassation within the framework of administrative procedure ...

A copy of the ruling ... refusing to open cassation proceedings , together with the materials annexed to the appeal , shall be forwarded to the appellant , while the cassation appeal shall remain with the court of cassation . ”

“ CARDINAL . NORP Parties ... may challenge , in the light of exceptional circumstances , court decisions in administrative cases after their review in cassation and decisions of the court of cassation before ORG of GPE .

Decisions of ORG of GPE in administrative cases may also be challenged in the light of exceptional circumstances [ on the basis ] set out in subparagraph CARDINAL of Article CARDINAL of this Code .

“ CARDINAL . Court decisions in administrative cases may be reviewed in the light of exceptional circumstances by ORG , if they are challenged on the [ following ] grounds :

( CARDINAL ) NORP dissimilar application of the same provision of law by courts of cassation instance ;

( CARDINAL ) a finding by an international judicial body that the courts ' decisions [ in a case ] are infringing GPE 's international obligations . ”

“ CARDINAL . An appeal shall be lodged within DATE of the discovery of the circumstances capable of serving as grounds for [ appeal ] in the light of exceptional circumstances .

An appeal lodged after the expiry of [ that ] term ... shall be left without consideration , if , upon a request by the appellant , ORG of GPE finds no grounds to renew [ the term ] ... ”

“ CARDINAL . A panel of CARDINAL judges of the judicial chamber of ORG dealing with administrative cases ... shall decide on the admissibility of an appeal made in the light of exceptional circumstances within DATE of its receipt and without summoning the persons taking part in the case . At the same time , [ the panel ] may decide on [ the question of ] the extension of the term for lodging an appeal made in the light of exceptional circumstances .

An appeal shall be considered admissible ... if CARDINAL judges have reached [ such a conclusion ] .

“ CARDINAL . ... [ A ] panel of judges ... shall adopt , by a majority vote , CARDINAL of the following decisions ...

( CARDINAL ) allowing the appeal in full or in part ;

( CARDINAL ) dismissing the appeal .

NORP The decision of ORG of GPE [ concerning an appeal made in the light of exceptional circumstances ] is final and may not be appealed against , save for in the circumstances envisaged by LAW paragraph CARDINAL of this Code . ”

“ CARDINAL . ORG of GPE shall allow an appeal if it discovers a dissimilar application of the same provision of law by courts of cassation instance .

NORP If ORG of GPE establishes that the contested court decision is unlawful , it shall quash it in full or in part and remit the case for fresh consideration to the court of first , appeal or cassation instance , as appropriate , depending on which court was the first to infringe a provision of substantive or procedural law resulting in the incorrect determination of the case . ORG of GPE may also quash decisions of courts of appeal or cassation and leave wrongfully quashed decisions of courts of first or appeal instance in force .

NORP The decision of ORG of GPE allowing an appeal shall be reasoned . ”

“ CARDINAL . This Code shall enter into force as from DATE ...

NORP Before the district administrative courts and administrative courts of appeal start to operate , cases falling within their jurisdiction shall be decided by the respective local and appeal courts of general jurisdiction ... pursuant to the rules of LAW GPE ...

After the entry into force of this Code , claims and complaints in cases concerning administrative [ matters ] ... as well as appeals and appeals in cassation ... in such cases , which were lodged , but not determined , before the entry into force of LAW GPE , shall be considered pursuant to [ the rules of ] this Code .

Such claims or complaints ... may not be left without further action or returned pursuant to this LAW , if they were lodged in compliance with the relevant requirements and jurisdictional rules established by LAW GPE of DATE ...

Appeals in cassation against judgments of the courts of first instance in the situations envisaged in paragraph CARDINAL of this LAW which were lodged before the entry into force of this LAW and which have not been considered by ORG of GPE shall be referred to ORG of GPE ... ”

“ CARDINAL . ORG of GPE is the highest judicial body within the [ hierarchy ] of courts of general jurisdiction ...

ORG of GPE :

( CARDINAL ) ... shall consider cases in cassation in the situations envisaged by law ... ”

( CARDINAL ) ... The chamber of ORG of GPE which hears civil cases shall consider civil cases in cassation until such time as another court [ vested with functions ] of a court of cassation in civil cases is determined by legislation . ”

Relevant extracts from ORG on the PERSON on the Judicial System and the Status of Judges of GPE by ORG and ORG - operation within ORG , adopted by ORG at its CARDINALth Plenary Session ( GPE , DATE ) , read , in so far as relevant , as follows ( emphasis added in the original text ) :

“ CARDINAL . ORG

... [ T]hree different orders of jurisdiction , topped by CARDINAL courts of cassation that are independent of each other , may well lead to numerous and often complex conflicts of jurisdiction . The least that one would expect in such a situation , is that there would be an efficient system for the solution of such conflicts , e.g. through a special “ conflicts ” court . ... ORG should fit that purpose ...

... [ T]he idea of a supreme court generally interpreting the law in an authoritative way and thus paving the way for a uniform interpretation of the law by all courts , even before contradictions have arisen .

Conclusion

... ORG jurisdiction should ... reflect[s ] its constitutional status as the highest judicial body in the system of courts of general jurisdiction ...

Recommendations for improvement of the PERSON include inter alia :

ORG should be allowed to exercise its jurisdiction to resolve conflicts between the high specialised courts also in matters of procedural law and the ORG should be able to decide itself on the admissibility of cases involving a conflict in the interpretation of the law . It should also be made competent to resolve conflicts of jurisdiction between the CARDINAL sorts of jurisdiction ( civil and criminal , commercial and administrative ) .


The applicant is a NORP national , born in DATE and living in LOC .

A.

On DATE I. , the then CARDINAL-year - old daughter of the applicant ’s cohabitee , PERSON , reported to the police that he had sexually harassed her . ORG then decided to take ORG into public care on a provisional basis under the DATE ORG ( lagen med särskilda bestämmelser om vård av unga ) .

The decision was upheld on DATE by ORG ( länsrätten ) of GPE . PERSON appealed against this decision , but it was upheld by ORG ( kammarrätten ) in GPE on DATE .

ORG later applied to ORG for a care order under LAW . The applicant was summoned to give evidence but he was not a party to the proceedings as NORP was not his child and he did not have custody of her . By judgment of DATE the court granted the application , finding that the applicant had made sexual advances towards NORP and verbally abused her .

Both the applicant and PERSON appealed to ORG . The applicant claimed that the inferior court ’s judgment contained false accusations against him . On DATE the appellate court found that the applicant had no standing in the case and therefore dismissed his appeal . By judgment of DATE , the court rejected the appeal lodged by PERSON , giving the following reasons :

( Translation )

“ I. has , according to the [ court ] , made a mature and credible impression . The information she has provided regarding the events and facts of relevance to the case is also in several respects supported by other circumstances and statements . The [ court ] finds that it must be considered to have been established in the case that [ the applicant ] on some occasions has kissed and caressed [ I. ] in a way which was improper with regard to the fact that they were in a stepfather – stepdaughter relation to each other . [ I. ] has recounted CARDINAL of these occasions to [ E. ] . The information concerning how [ E. ] has reacted to this is not coherent but at least it is apparent that she has not taken [ ORG ’s ] allegations seriously , be it because she did not believe [ I. ] or because she did not find the matter called for action . In both these cases [ E ’s . ] care for [ I. ] must , as stated by ORG , be deemed to have been seriously lacking . It is true that some time has now passed since these events took place and that they seem not to have recurred since JanuaryFebruaryCARDINAL . Furthermore , [ I. ] has now stated that she is no longer afraid of [ the applicant ] . However , the [ court ] finds that what has happened entails such a grave disloyalty to [ I. ] that it constitutes an apparent deficiency in the home of [ E. ] as long as [ the applicant ] resides there , even if it should be possible to prevent a recurrence . The facts further show that [ I. ] has been subjected to degrading treatment in the home . Firstly , she has been caused to undergo an abnormally strict control of her whereabouts , a control which to some extent amounted to a violation of her privacy . She has also been subjected to degrading epithets and accusations and [ the applicant and PERSON have ] also [ made ] mainly entirely unsubstantiated reports and requests [ concerning ORG behaviour ] to school and police authorities . In these respects both [ E. ] and [ the applicant ] have , on several occasions , treated [ I. ] in a very peculiar way , as it appears often with [ the applicant ] as instigator . In sum , the [ court ] finds , with reference to the above , that there prevail such severe deficiencies in [ ORG ] home that there must be deemed to exist a palpable risk of her mental health and social development being impaired if she , against her will , is forced to live with [ E. ] and [ the applicant ] . – [ E. ] is still cohabiting with [ the applicant ] . It is true that she has declared that she intends to leave him for a home of her own in PERSON as soon as the opportunity occurs , but her intentions in that respect seem rather vague . She has also stated that , for the time being , she does not intend to discontinue her relationship with [ the applicant ] , who will consequently be in her home whether she moves or not . Having regard hereto , the [ court ] finds that necessary care presently can not be provided [ I. ] by [ E. ] and that [ I. ] therefore must be placed in a foster home . Since [ E. ] does not consent to such a measure there are , as ORG has found , reasons for providing [ I. ] with care pursuant to [ LAW ] . Consequently , the appeal shall be rejected . ”

On DATE ORG ( Regeringsrätten ) refused the applicant leave to appeal against the appellate court ’s decision of DATE . On DATE ORG found that he had no standing to appeal against the appellate court ’s judgment of DATE and thus dismissed his appeal in this respect .

On DATE the applicant was informed by ORG in GPE that he was going to be questioned regarding suspicions of having committed sexual harassment . On DATE the applicant was informed that the ORG had decided to terminate the preliminary investigation on the ground that it could not be proved that a crime had been committed .

B. Relevant domestic law

Care pursuant to the DATE Act shall be provided for a young person DATE if one of the situations referred to in LAW CARDINAL of the LAW is at hand and the necessary care presumably can not be given to the young person with the consent of the person having custody of him and , if the young person himself has reached the age of DATE , with his own consent . According to LAW care shall be provided if there is a palpable risk of impairment of the health or development of the young person due to ill - treatment , exploitation , lack of care or any other condition in the home .

Decisions on whether to place a young person under public care are made by ORG following an application from ORG .

The concept of health or development in the DATE Act was taken directly from the previous legislation in this area as a description of a person ’s physical or mental health or development . The concept refers to situations where the young person is risking his physical health or where mental suffering is inflicted because of the situation in the home .

According to the travaux préparatoires to the DATE Act the expression palpable or apparent risk ( påtaglig risk ) was deemed well suited for indicating at what level a compulsory care order could be justified . A subjective assumption that a young person is in danger is not enough and irrelevant circumstances such as public order must not be the basis of a care order . There has to be concrete or apparent circumstances supporting the fact that there is a risk for the young person ’s physical or mental health ( cf . Government Bill CARDINAL/CARDINAL:CARDINAL , pp . CARDINAL and CARDINAL ) .

According to LAW may order the immediate taking into care of a young person ( “ provisional care order ” ) if he probably needs to be provided with care under LAW and a court decision on the matter can not be awaited owing to the risk to the young person ’s health or development or because the continuing inquiry can be seriously impeded or further measures prevented . A provisional care order shall be put before ORG which shall rule on whether the order shall be upheld awaiting the ORG ’s judgment regarding the application for public care .

According to LAW , subsection CARDINAL of the DATE LAW ( förvaltningsprocesslagen ) a decision made by a county administrative court or an administrative court of appeal may be appealed against by a person whom the decision concerns , provided that the decision affects him adversely .


The applicants , GPE , GPE and PERSON , are NORP citizens , born in DATE , DATE and DATE , respectively and living in GPE . They are represented before the ORG by Mr PERSON ORG , a lawyer practising in GPE . The respondent Government are represented by their Agent Ms PERSON .

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

In DATE the first applicant acquired a specially protected tenancy on a flat in GPE ; the second and third applicants are his wife and son . They all lived together in the flat in question . On DATE , while the applicants were absent from GPE , CARDINAL members of ORG broke the door and occupied the flat .

On DATE the third applicant instituted proceedings with ORG ( PERSON ) seeking reinstatement and interim measures so as to obtain the keys of the new lock for the flat ’s main entrance and to evict the defendants from the flat . On DATE the court ordered interim measures as requested by the third applicant . On DATE the same court decided in accordance with the third applicant ’s claims .

In the meantime , on DATE , ORG ( ORG ) granted temporary possession of the flat in question to PERSON ( although that person was already deceased ) and to his wife NORP The first and third applicants challenged that decision and on DATE ORG ( ORG ) quashed the ORG ’s decision on the merits .

Meanwhile NORP had occupied the flat . Upon the third applicant ’s request ORG ordered NORP to vacate the LOC on DATE . As NORP did not comply with the court ’s order , the first and third applicants sought , and on DATE obtained , a decision on the judicial enforcement of the court ’s decision ( rješenje o izvršenju ) . NORP filed a motion to object that decision , but her motion was denied on DATE . In addition ORG ( NORP za socijalni rad ORG ) , as well as ORG , filed motions for an order staying the execution , which were denied on DATE . Subsequent attempts to evict NORP from the flat by the court ’s officials remained unsuccessful due to the presence of armed persons dressed in ORG uniforms , inside and around the flat , opposing the eviction .

NORP occupied the flat until DATE when she moved out without informing the applicants or ORG , and at the same time PERSON , a member of the NORP military police , moved in . DATE the applicants’ possessions from the flat were removed by persons dressed in ORG uniforms using military trucks . On DATE ORG granted temporary possession of the flat to Z.

The applicants did not appeal against that decision .

On DATE ORG ( ORG pravobraniteljstvo ) instituted proceedings against the first applicant in ORG requesting the termination of his specially protected tenancy on the flat in question , alleging that he had not occupied the flat for DATE . ORG considered the first applicant ’s address to be unknown and appointed a legal representative for him ( staratelj za poseban slučaj ) .

On DATE ORG terminated the first applicant ’s specially protected tenancy accepting the claim that he and his family had not occupied the flat for DATE without a justified reason . Thus , the first applicant lost all his rights regarding the flat in question . Upon the representative ’s appeal ORG ( Županijski sud u GPE ) on DATE upheld the first instance decision confirming the reasoning of ORG .

The first applicant was not notified of those decisions , but only his legal representative , who was unknown to him . It appears that on DATE an attorney , whom the applicants claim was unknown to them , filed an application to return the proceedings to the status quo ante ( prijedlog za povrat u prijašnje stanje ) with ORG .

On DATE the first and second applicants filed an application for the re - opening of the proceedings ( prijedlog za ponavljanje postupka ) with ORG , on the basis that the legal representative appointed in the proceedings concerning the termination of the first applicant ’s specially protected tenancy was not aware of the facts that might have been decisive for the outcome of the proceedings such as the fact that ORG had quashed ORG decision to grant temporary possession of the flat to a third person .

On DATE ORG rejected the application to return the proceedings to the status quo ante as having being lodged out of time . On DATE ORG rejected the first and second applicants’ application for the re - opening of the proceedings for the same reason . It appears that on DATE the first and the second applicants appealed against the decision concerning the re - opening of the proceedings .

On DATE the first and second applicants requested the speeding - up of the proceedings .

On DATE the case file was transferred to ORG it being the appellate court .

On DATE the first and second applicants again requested the speeding - up of the proceedings .

On DATE ORG remitted the case to ORG , without deciding upon the applicants’ appeal . ORG instructed ORG to hold a hearing so as to obtain information relevant for reaching the decision upon the first and second ORG appeal .

On DATE the first and second applicants requested for the third time the speeding - up of the proceedings .

On DATE ORG held a hearing . At that hearing the first and third applicants gave their testimonies as to whether a legal representative who lodged the application to return the proceedings to the status quo ante was given a power of attorney by them .

At the next hearing , which took place on DATE , the second applicant gave testimony in respect of the same question .

On DATE ORG sent the case file to ORG .

On DATE the case was again remitted to ORG in order to obtain its explanation in regard of the applicants’ objection to the written TIME of the hearing of DATE . Furthermore , the court of first instance was requested to enclose a copy of its decision of DATE and a copy of the first and second ORG appeal against that decision .

On DATE the ORG quashed ORG decisions of DATE and DATE and remitted the case to the court of first instance .

On DATE ORG dismissed the application to return the proceeding to the status quo ante as it had been submitted by a representative without a power of attorney . It also dismissed the first and second applicants’ application for the re - opening of the proceedings , again as having been lodged out of time .

On DATE the first and second applicants appealed against ORG decision concerning their request for the re - opening of the proceedings . It appears that the cases are presently pending before ORG .


David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

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

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

On DATE the applicant was questioned by the police on suspicion of having made defamatory remarks about another person in a letter . The pre - trial investigation was closed on DATE .

On DATE the public prosecutor filed an application for a summons with ORG ( käräjäoikeus , tingsrätt ) . The applicant was summoned to an oral hearing , which was to be held on DATE . That hearing was , however , cancelled . According to the applicant , the reason for the cancellation was the court 's failure to summon his witness . The Government , on the other hand , state that the hearing was cancelled because the presiding judge had fallen ill . By a notice dated CARDINAL DATE the applicant was again summoned to the court 's oral hearing , the new date being DATE .

At that hearing the prosecutor charged the applicant with defamation . The complainant joined the proceedings and made an accessory claim for damages . In addition to written evidence , the court received testimony from the parties and CARDINAL witness . The court gave its judgment on DATE . It convicted the applicant as charged and sentenced him to CARDINAL unit fines , amounting to € CARDINAL ( euros ) in total . It also ordered him to pay damages and costs and expenses to the complainant .

On DATE the applicant appealed against the judgment to ORG ( hovioikeus , hovrätten ) maintaining that he was innocent . He also made a claim against the ORG for costs and expenses claiming that he had travelled in vain to the first hearing , which had been cancelled DATE . The complainant also appealed , requesting that the amount of damages be increased . The complainant initially requested an oral hearing but later withdrew that request .

On DATE the court asked the parties to submit written replies which were , apparently , received by DATE . According to the ORG , the applicant submitted further comments on DATE .

On DATE ORG found that the applicant had not acted with intent . It acquitted the applicant of the charge and exempted him from paying damages and costs and expenses to the complainant . The court dismissed his claim against the ORG without examining its merits , noting that such a claim could not be raised directly before the appellate court .

The complainant sought leave to appeal to ORG ( korkein oikeus , högsta domstolen ) , which was refused on DATE .

Article CARDINAL of the LAW ( PERSON , PERSON grundlag , Act no . GPE ) provides that anyone who has suffered a violation of his or her rights or sustained loss through an unlawful act or omission by a civil servant or other person performing a public task shall have the right to request that charges be brought against that person and that the public organisation , official or other person in charge of a public task be held liable for damages , as provided in more detail by an LAW .

LAW ( vahingonkorvauslaki , skadeståndslag , Act no . CARDINAL ) entitles an individual to institute civil proceedings against the authorities before a district court on the ground that he or she has suffered damage due to the performance of a public function .


No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)

Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born on DATE . On DATE , at DATE , the applicant was arrested in GPE , GPE , charged with rape and homicide under LAW , subsection CARDINAL , and section CARDINAL of LAW ( PERSON ) committed on CARDINAL DATE against an DATE lady , who lived in GPE , GPE , where the applicant at the relevant time attended a youth school institution . The case received massive media coverage , both before and after the police investigation that led to the applicant being charged .

The applicant was brought before ORG ( PERSON ) and pleaded guilty to both charges . He was ordered to be held in pre - trial detention for DATE . A request by the lay representative ( bisidder ) that the applicant be placed in an institution in GPE during the investigation was disregarded .

After DATE , the applicant was transferred to GPE and brought before ORG in GPE ( Retten i Aalborg ) which on DATE , by virtue of section CARDINAL , subsection CARDINAL ) , of ORG ( Retsplejeloven ) , extended the detention on remand until DATE and until his placement in an appropriate home or institution could be secured as set out in section CARDINAL , subsections CARDINAL and CARDINAL ) of ORG . It further decided that the applicant should undergo a forensic psychiatric examination . The latter was formally requested by the public prosecutor on DATE and commenced at ORG at ORG on DATE .

On DATE the applicant was transferred to a closed young offender institution . On DATE he was transferred to a secure residential institution called “ PERSON ” for young people aged DATE who had committed a crime or otherwise displayed dangerous conduct . One of the objects of that particular institution was that the young people placed there were given such care , upbringing and help with development that they would be able to function in society later on . The young people had a well - structured DATE routine with education , workshops and leisure - time activities , and with limit - setting adults with strong contact skills to support them .

The applicant ’s detention in the institution was extended by DATE by ORG in GPE on DATE , DATE and DATE .

In a letter of CARDINAL DATE the prosecution informed the applicant ’s counsel that the investigation was by and large complete and awaited only a report from the forensic psychiatric examination .

The applicant ’s detention was extended for DATE on DATE .

NORP On DATE the forensic psychiatric report ( retspsykiatrisk erklæring ) was submitted . It concluded that the applicant was covered by LAW , subsection CARDINAL , of the Penal Code concerning mentally ill persons and recommended that a judgment be passed to place the applicant in an appropriate institution for patients with a far - reaching mental handicap .

On DATE the applicant ’s detention was extended , inter alia , in order for ORG ( PERSON ) to be heard on the forensic psychiatric report .

ORG in GPE extended the applicant ’s detention by DATE on DATE , DATE , DATE , CARDINAL DATE , DATE , DATE and DATE . On DATE dates the domestic courts added that the conditions for extending the detention were fulfilled , also under section ORG , which entered into force on DATE ( see below ) .

In the meantime , on DATE the report from ORG was submitted , which concluded that the applicant was considered to fall within LAW , of LAW . Moreover , if the applicant were convicted , a sentence of placement in an institution for persons with extensive mental disabilities as provided by LAW , second sentence , was recommended as the most expedient measure to prevent further similar offences .

As a standard practice regarding persons falling within section DATE , subsection CARDINAL , of LAW , on DATE the public prosecutor requested an opinion from ORG for the Mentally Disabled ( Samrådet for udviklingshæmmede ) of GPE on the basis of the forensic psychiatric report and the recommendation of ORG .

On DATE , an opinion was received from ORG for the Mentally Disabled , which found that the documentation for considering the applicant to fall within section CARDINAL , subsection CARDINAL of LAW was inadequate . It therefore urged a further examination of the case before a decision was made . Accordingly , a new forensic psychiatric report was requested .

Originally , the trial was scheduled to commence on DATE , but it had to be re - scheduled for CARDINAL and DATE pending the completion of the second forensic psychiatric report . On DATE , for the first time the applicant objected to an extension of the pre - trial detention . He referred to the fact that section CARDINALa of ORG , which had entered into force on DATE , specifically limited pre - trial detention of persons DATE to a period not exceeding DATE .

By decision of DATE , still by virtue of section CARDINAL , subsection CARDINAL ) , of ORG , ORG in GPE extended the applicant ’s pre - trial detention until DATE and stated :

[ The applicant ] is charged with rape and homicide committed on DATE . The pre - trial detention is thus justified by a charge of a very serious crime which has also been admitted to by [ the applicant ] , and according to the information available it must be concluded that the reason why the case has not yet come to trial is the need to clarify the most expedient sanction , both in consideration of society and in consideration of [ the applicant ] himself . Although the length of the pre - trial detention exceeds the period stated as the maximum period in section CARDINALa of ORG , the court therefore finds that such very particular circumstances ( helt særlige omstændigheder ) apply as to provide a reason for deviating from the maximum period in section CARDINALa , and the request for extension is therefore allowed .

On appeal on DATE ORG PERSON ) , henceforth ORG , upheld the decision .

The applicant did not apply for leave to appeal against the decision to ORG ( Højesteret ) .

On DATE ORG in GPE extended the applicant ’s detention in the closed youth institution by DATE .

On DATE ORG in GPE extended the applicant ’s detention by DATE . It noted that the second forensic psychiatric report had been submitted on DATE and that it was of significant importance to hear ORG in this respect . It repeated that such very particular circumstances applied as to provide a reason for deviating from the maximum period in section CARDINALa of ORG and that an extension could not be considered in breach of LAW . Accordingly , the trial had to be rescheduled anew .

NORP The applicant appealed against the decision to ORG , which on DATE upheld the decision . Leave to appeal to ORG was refused on DATE by ORG ( Procesbevillingsnævnet ) .

In the meantime , on DATE the second report from ORG was submitted . It concluded that the applicant ’s case did not fall under LAW , subsection CARDINAL , of LAW , as found in its first report , but under LAW of LAW in that his actions had been conditioned by deficient development , reduction or disturbance of mental functions which , from a medical point of view , on the one hand could suggest a sentence to structured , controlled socio - psychiatric treatment , and on the other hand could not rule out ordinary imprisonment . ORG was unable to point to any other measures under LAW , second sentence , of LAW that were more expedient than ordinary punishment . ORG did find it relevant though , from a purely medical point of view , to order the applicant to undergo a structured , supervised socio - pedagogical measure as provided for by section DATE of LAW . If such sanction was not feasible , the imposition of ordinary punishment was recommended .

NORP Moreover , in the meantime , on CARDINAL and DATE , and subsequently on CARDINAL DATE ORG in GPE extended the applicant ’s detention , stating expressly that an extension would not be contrary to LAW . The trial had been scheduled to take place on DATE , and if necessary also on CARDINAL and DATE .

By judgment of CARDINAL DATE ORG in GPE convicted the applicant in accordance with the indictment and his own confession . It was established as a fact that the applicant had gained access to the victim ’s apartment because he wanted access to a telephone . Having raped the victim , he killed her by inflicting several blows , kicks and knife lesions to the head , neck and body . Thereafter he had left the scene of the crime , walked to town and called the youth school institution to be collected . He did not talk to anybody about the crime until he had been arrested . The applicant was sentenced to DATE imprisonment . ORG refuted the applicant ’s complaint about the length of the detention and the length of the trial and stated that even though the proceedings had taken DATE from the applicant ’s deprivation of liberty , their length could not lead to a reduction of the sentence as the completion of the CARDINAL mental status examinations of the applicant- and the submission of the case to ORG had been of vital significance for determining the sanction to be imposed . Moreover , it found that the public prosecutor had conducted the proceedings with due diligence .

On appeal , on DATE ORG upheld the judgment in its entirety and stated , among other things : “ For the reasons stated by ORG and because the length of the proceedings can not be attributed to ‘ periods of inactivity’ of any importance for sentencing purposes in view of the nature of the case , [ ORG ] agrees that the length of the proceedings has not been attributed importance as a mitigating factor . Accordingly , and in view of the very significant gravity of the offences , including the particular ruthlessness exhibited by [ the applicant ] , the fact that the offences were committed in the victim ’s own home , and the fact that the victim was a defenceless DATE woman , ORG upholds the sentence of DATE imprisonment despite the fact that [ the applicant ] was DATE at the time of the offence , see section DATE , subsection CARDINAL(i ) , of the LAW ” . On DATE , ORG decided that the applicant should remain in alternative detention until the enforcement of the sentence could commence .

It appears that the applicant did not submit a request to ORG for leave to appeal against ORG judgment to ORG .

The rules on detention on remand are laid down in part CARDINAL of ORG ( Retsplejeloven ) , which reads in so far as relevant :

A person charged ( en sigtet ) may be detained on remand when there is a reasonable suspicion that he has committed an offence which is subject to public prosecution , provided that under the law the offence may result in imprisonment for DATE and DATE or more , and

( i ) according to information received concerning the suspect ’s situation , there are specific reasons for assuming that he will evade prosecution or execution of judgment , or

( ii ) according to information received concerning the suspect ’s situation , there is specific reason to fear that , if at large , he will commit a new offence of the nature described above , or

A person charged may also be detained on remand when there are strong reasons for suspecting that he has committed :

( i ) an offence which is subject to public prosecution which , under the law , may result in imprisonment for DATE or more , and it is deemed necessary for law enforcement reasons , according to the information obtained on the gravity of the offence , that the person is not at large ( hensynet til retshåndhævelsen ) ; or

( ii ) an offence in violation of section CARDINAL(CARDINAL ) , section CARDINAL , section CARDINALa , section CARDINALa(CARDINAL ) , section CARDINAL(CARDINAL ) , section CARDINAL , section CARDINAL or section CARDINAL read with section CARDINAL(CARDINAL ) or section CARDINAL , section GPE ) , sections CARDINAL - CARDINAL , section CARDINAL or CARDINAL of LAW or violation of LAW committed against a child of DATE , in case the offence may be expected , due to the particulars of the seriousness of the circumstances , to be punished with a non - suspended sentence of imprisonment for DATE and due regard for enforcement of the law is found to require that the accused shall not be at large . ”

Detention on remand may not be imposed if the offence can be expected to result in a fine or imprisonment for a period not exceeding thirty days , or if the deprivation of liberty would be disproportionate to the inconvenience so caused to the life of the person charged , the importance of the case and the legal consequence to be expected if the person charged is found guilty .

The court shall decide , upon request from the prosecution , if an accused person shall be detained on remand . A request for continued remand detention shall be submitted to the court in writing and the request shall state the detention provision(s ) relied on by the prosecutor , the factual circumstances on which the request is based and the most significant investigative steps expected to be taken .

... If detention on remand is continued beyond the time limits set out in section ORG , subsections CARDINAL and CARDINAL , the [ court ] must state in its decision necessitate continued detention on remand ...

Where the conditions to apply detention on remand are met , but if the purpose of detention on remand may be obtained by less radical measures , the court decides on such measures in lieu thereof subject to the consent of the person charged .

The court may thus decide that the person charged shall

( iii ) be placed in an appropriate home or institution

Except for situations where the person charged is not present in GPE , the court order must state a period for the pre - trial detention or the measure . The period must be as short as possible and may not exceed DATE . The period may be extended but not by DATE at a time . The extension is made by court order unless the defendant accepts the extension . Until judgment is rendered in the first instance , the rules of section CARDINAL apply correspondingly to court hearings and court orders about extension of periods . A defendant who is held in pre - trial detention or is subject to another custodial measure does not , however , have to be brought in person before the court if he waives this or the court finds that such attendance will involve undue difficulties .

Detention on remand or measures in lieu hereof , shall if necessary be terminated by a court order if prosecution is dropped or the conditions for instituting proceedings no longer exist . If the court order finds that the necessary speed has not been used to proceed with the matter and that detention on remand or other measures are not reasonable , the court shall terminate it .

Unless the court finds that there are special circumstances to the contrary , the maximum period of detention on remand must not be extended for a continuous period of

( i ) DATE , when the accused is charged with an offence that can not carry a sentence of imprisonment for DATE or

( ii ) DATE when the accused is charged with an offence that may carry a sentence of imprisonment for DATE or more .

Unless the court finds that there are very special circumstances to the contrary , the maximum period of the detention on remand of a juvenile ( DATE ) must not be extended for a continuous period of

The periods mentioned in subsections CARDINAL and CARDINAL comprise the period until the beginning of the trial at first instance .

Section CARDINALa was inserted into ORG by act no . CARDINAL of DATE and entered into force on DATE with the aim of reducing lengthy criminal charges and detention on remand . The reasons for the proposal were explained in the general remarks to the LAW , inter alia by a reference to a specific ORG , DATE , pp . CARDINAL - CARDINAL :

“ The ORG notes that detention on remand is a particularly serious interference in criminal procedure , and that this especially is the case for persons DATE . The strain that flows from detention on remand - in the view of ORG caused not only by the uncertainty that follows from the charge and the imprisonment , but also uncertainty with respect to the length of the detention and the consequent questions , inter alia , whether the detainee can resume his work or his education after the detention ends , relationships with family and friends , etc . The strain must normally be presumed to grow concurrently with the length of the interference and especially for this reason the length of detention should be limited as far as possible . Against this background , the ORG finds that there is a need for further measures to reduce the length of detention on remand . Considering the serious character of the interference , the ORG further notes that it must be incumbent on the police , the prosecution authorities and the courts that , in the organisation of their work , they pay special attention to expediting these cases in order for detention on remand to be of the shortest possible duration . ”

As appears from the wording of section ORG , deviation from pre - trial detention periods of defendants under DATE is only possible if the court finds that “ very special circumstances ” apply . As explained in more detail in the preparatory notes ( see ORG on Parliamentary Proceedings DATE ( CARDINALnd sitting ) , Addendum A , p. CARDINAL ( Bill No . L CARDINAL ) ) , it depends on a specific assessment of all the circumstances of each case whether there is a basis for deviating from the maximum periods of pre - trial detention , as concerns both charged persons under and over DATE . When assessing this , the court must start from the reason for detention applied , that is , the reasons for pre - trial detention under section CARDINAL , subsection CARDINAL(i ) ( danger of absconding ) , section CARDINAL , subsection CARDINAL(ii ) ( danger of reoffending ) , or CARDINAL , subsection CARDINAL ( public interest ) of ORG . The preparatory notes set out :

In case of pre - trial detention pursuant to the said provisions , the requirement of particular circumstances implies that a total assessment must be made on the basis of a strict assessment , both of the circumstances mentioned in LAW ( that is , particularly whether the investigation is being conducted with the requisite expedition ) and of the necessity of continuing the detention pursuant to the detention reason applied .

The strict attention to the necessity of continuing the detention also implies that the court must pay special attention to the proportionality requirement under section CARDINAL(CARDINAL ) of ORG and , particularly in connection with the detention reason stipulated in subsection ( l)(i ) ( danger of absconding ) , to the possibility of using alternatives to detention as prescribed in section CARDINAL . Concerning the application of alternatives , it should be noted in that connection that the court , the public prosecutor as well as defence counsel should be aware at all times of the need to try to apply alternative detention in cases where that would be an adequate measure .

In all cases , the offence charged will be of significant importance so that continued detention after the maximum periods stated may particularly be applied in serious criminal cases , that is , in cases of aggravated offences against the person and other cases of particular public interest in which the expected sanction will be DATE of imprisonment . Thus , following an overall assessment , the court must make a critical assessment of the necessity of continued pre - trial detention in light of the length of the detention so far .

In the assessment of the question of continuation of the detention in case of the most aggravated offences , for example in cases of homicide , the most aggravated drugs offences , etc . , the nature of the actual aggravated offence will naturally be included in the assessment of whether detention may be continued in excess of the periods stated . Particularly in cases where prosecution has been instituted , and where there is a rather strong suspicion , the criminal nature of a very serious offence may , in addition to the specific reason for detention , be included as an essential factor resulting in a finding that particular circumstances exist in accordance with the provision proposed .

Particularly concerning continued pre - trial detention of charged persons under DATE in excess of the maximum periods , the preparatory notes stated the following :

Whether pre - trial detention of young people under DATE may occur in excess of the normal periods stated in subsection ( CARDINAL ) must normally depend on an assessment corresponding to the one to be made when determining whether there is any basis for deviating from the periods stated in subsection ( CARDINAL ) , see above . However , the condition for deviating from the periods stated in subsection ( CARDINAL ) is qualified , as exceptional circumstances must apply . This pertains to both the circumstances referred to in LAW of ORG ( that is , particularly whether the investigation is being conducted with the requisite expedition ) and to the necessity of continued pre - trial detention in accordance with the reason for detention applied , see above for details . Also the nature of the offence charged will be of significant importance so that continued detention after the maximum periods stated may particularly be applied in very serious criminal cases ( that is , in cases of severely aggravated offences against the person and other cases of particular public interest in which the expected sanction will be DATE of imprisonment ) .

The Penal Code contains various provisions on the significance of the perpetrator ’s mental status at the time of the offence , inter alia :

( CARDINAL ) Persons who , at the time of the act , were irresponsible on account of mental illness or a state of affairs comparable to mental illness , or who are severely mentally defective , are not punishable . Provided that the perpetrator was temporarily in a condition of mental illness or a state of affairs comparable to mental illness on account of the consumption of alcohol or other intoxicants , he may in particular circumstances be punished .

( CARDINAL ) Persons who , at the time of the act , were slightly mentally defective are not punishable , except in particular circumstances . The same shall apply to persons in a state of affairs comparable to mental deficiency .

Where an accused is acquitted in accordance with LAW , the court may decide on the use of other measures which it considers to be expedient for the prevention of further offences . If less extreme measures such as supervision , decisions on place of residence or work , addiction treatment , psychiatric treatment and so on are considered insufficient , the court may decide that the person in question must be taken to a hospital for the mentally ill or to an institution for severe mental defectives , or that he must be put into care suitable for the mentally deficient , or that he must be taken to a suitable home or to an institution where he can receive special nursing or care . Safe custody is possible under the conditions stated in CARDINAL of this LAW .

Where the offender was , at the time that the punishable act was committed , in a condition resultant upon inadequate development or an impairment or disturbance of his mental abilities , although not of the character referred to in LAW of this LAW , the court may , if considered expedient , decide upon the use of measures such as those referred to in the second sentence of LAW above , in lieu of punishment .

The Administration of Justice Act contains the following provision on mental status examinations of the perpetrator :

The defendant must be subjected to a mental status examination when this is found to be of importance for the decision of the case . If he does not explicitly consent to the examination , it can only take place pursuant to a court order . If the defendant is being detained , he can not be examined without a decision of the court .

Mental status reports are prepared by consultants in psychiatry . The cases of forensic psychiatry that are submitted to ORG ( Retslægerådet ) for an opinion concern the question of whether , at the time of the offence , the defendant was mentally ill or in a comparable state as stated in LAW of LAW and questions of determination of the most / more expedient measure , see sections DATE and CARDINAL of LAW . CARDINAL of all mental status reports are submitted to ORG . Cases not submitted to ORG typically concern less serious crimes and where the examination gives no basis for recommending a special psychiatric measure . The detailed rules for the organisation and work routines of ORG are laid down in the Rules of Procedure of the Council . Rule CARDINAL(CARDINAL ) of the Rules of Procedure provides that :

If the written material submitted to the ORG is deemed not to provide a sufficient basis for the ORG ’s assessment of the case , the ORG shall inform the submitting authority of what further information will be of importance for such assessment . At the same time , the ORG shall state whether it is deemed most expedient that such information is provided : ...

through examination of the person in question by CARDINAL or more of the ORG members or experts at the request of the ORG .

In cases where it is concluded , on the basis of the mental status examination of the perpetrator , that the perpetrator is slightly retarded ( ‘ mentally PERSON ) , it is standard practice for the public prosecutor of ORG , who conducted the criminal proceedings against the applicant before ORG , to request an opinion from ORG for the Mentally Disabled ( Samrådet for ORG ) of GPE . ORG for the Mentally Disabled , which includes a forensic psychiatrist and a psychologist as well as a representative of ORG , assesses the conclusion of the mental status report on the perpetrator ’s mental status and recommends the sanction which should be imposed on the perpetrator , including the type of institution in which the perpetrator should be placed .


No violation of Art. 11;No violation of Art. 6-1;No violation of Art. 13;No violation of P1-1

ORG From DATE until DATE the applicant owned the summer restaurant GPE at GPE , GPE , on the island of GPE . The applicant further owned - and continues to own - the youth hostel GPE at GPE , PERSON , also on GPE . The restaurant ’s employees numbered CARDINAL . They were engaged on a seasonal basis , but had the option of being re - employed DATE . The applicant ’s ownership of the restaurant and youth hostel was direct and entailed his personal financial liability ( enskild firma ) .

ORG As the applicant was not a member of either of the CARDINAL associations of restaurant employers , namely ORG ( Hotell- och Restaurangar - betsgivareföreningen - " HRAF " , which is affiliated to ORG ( Svenska Arbetsgivareföreningen - " ORG " ) ) and ORG of GPE ( ORG Restauratörsförbundets Arbetsgivareförening - " SRA " ) , he was not bound by any collective labour agreement ( kollektivavtal ) between the CARDINAL associations and ORG ( Hotell- och PERSON " ) . Nor was he obliged to subscribe to the various labour - market insurance schemes ( Arbetsmarknadsförsäkring ) developed through agreements between ORG and ORG ) .

It was , however , open to the applicant to accede to a collective agreement by accepting a substitute agreement ( hängavtal ) . He could also subscribe to insurance schemes with ORG or any of the other ten or so insurance companies in the field .

ORG In DATE or DATE he refused to sign a separate substitute agreement with ORG . He referred to his objections of principle regarding the system of collective bargaining . He also emphasised that his employees were paid more than they would have been under a collective agreement and that they themselves objected to his signing a substitute agreement on their behalf .

The substitute agreement proposed to the applicant included these terms :

" Parties : [ The applicant ] and [ HRF ]

Term of validity : From DATE up to and includingCARDINAL DATE , thereafter for DATE at a time , unlessnotice is given DATE prior to the expiry of the[agreement ]

As from the [ above ] date , the most recent agreement between[the ORG association ] and [ HRF ] shall be applied between[the applicant and ORG ] . Should [ the ORG association]and [ HRF ] subsequently reach a new agreement or agree to amendor supplement the [ present ] agreement , [ the new agreement , amendments or supplements ] shall automatically apply as fromthe day on which [ it or they ] [ has or have ] been [ agreed upon ] .

[ The employer shall ] [ on his employees’ behalf ] subscribeto and maintain [ CARDINAL different ] insurance - policy schemes ORG , ... as well as other possibleinsurance - policy schemes which [ the ORG association GPE ] might later agree upon .

[ The employer shall ] issue employment certificates on aspecial form ... A copy shall be sent to [ HRF ] .

[ The employer shall ] only employ [ workers who are PERSON or [ have ] requested membership of [ HRF ] . In the event ofre - employment the provisions of section QUANTITY of LAW ( lag ( CARDINAL ) om anställnings - skydd ) shallapply .

[ The employer shall ] deduct on a DATE basis a part ofthe salary of employed members of [ HRF ] corresponding to theirmembership fees , and pay [ the deducted part ] to [ HRF ] .

ORG On DATE , during further negotiations with the applicant , ORG proposed another substitute agreement , which he also rejected :

" Subject : The signing of a collective agreement regarding [ therestaurant ] Ihrebaden ... and the NORP youth hostel .

Having regard to the forthcoming end of the [ season ofCARDINAL ] the parties agree on the following procedure replacing the signing of a collective agreement .

The enterprise agrees to comply , during DATE ... , with the collective labour agreement ( ` the green nationalagreement’ ) between [ ORG ] and [ HRF ] , this including the obligation to subscribe to [ certain ] insurance schemes(avtalsförsäkringar ) with ORG .

The enterprise also agrees to [ comply with ] [ the]collective labour agreement ... during DATE ... , either by way of membership of the ORG union or bysigning a ... substitute agreement ... "

ORG Had the applicant accepted a substitute agreement , it would have applied not only to those of his employees who were unionised but also to those who were not .

In DATE , CARDINAL member of ORG was employed by the applicant . In DATE he employed another member of that union and also CARDINAL persons who were respectively members of ORG ( ORG ) and ORG ( PERSON ) . In DATE , CARDINAL member of the latter union was employed by the applicant .

ORG Following the applicant ’s refusal to sign a substitute agreement , ORG , in DATE , placed his restaurant under a " blockade " and declared a boycott against it . Sympathy industrial action was taken DATE by ORG and ORG ( ORG ) .

In DATE sympathy action was also taken by ORG ( ORG transportarbetareförbundet ) and ORG ( ORG ) . As a result deliveries to the restaurant were stopped .

One of the persons employed by the applicant at ORG baden who was member of ORG had publicly expressed the opinion that the industrial action was unnecessary , as the salary and working conditions in the restaurant were not open to criticism .

According to the ORG , the union action had its background in a request for assistance in DATE by an ORG member employed by the applicant . In the view of the union , the applicant paid his employees MONEY ( SEK ) DATE less than what they would have received under a collective agreement . He did not pay his staff holiday compensation as provided for in the DATE LAW ( semesterlagen DATE ) , nor salary during lay - offs due to poor weather conditions as required by the DATE LAW and he did not sign a labour - market insurance until DATE .

ORG In DATE the applicant , invoking the Convention , requested the ORG to prohibit ORG from continuing the blockade and the other trade unions from continuing their sympathy action and to order the unions to pay compensation for damages . In the alternative , he requested that compensation be paid by the ORG .

ORG By a decision of CARDINAL DATE the ORG ) dismissed the applicant ’s request . The ORG stated :

" The requests for a prohibition of the blockade and thesympathy action as well as compensation for damage from thetrade unions concern a legal dispute between private subjects . According to LAW , LAW , of ORG [ ORG which forms part of theConstitution ] , such disputes may not be determined by anypublic authority other than a court of law , except by virtueof law . There is no provision in the law which authorises ORG to examine such disputes . The Government will not , therefore , examine these requests on the merits .

The claim for damages is dismissed . "

ORG The applicant applied to ORG ( Regeringsrätten ) for review under LAW ( lag ( GPE ) om rättsprövning av vissa förvaltningsbeslut - " LAW " ) . On DATE ORG dismissed the application on the ground that the ORG ’s decision did not concern an administrative matter involving the exercise of public power , which was a condition for review under LAW .

ORG On DATE ORG ( ORG turistföreningen - " STF " ) , a non - profit - making association promoting tourism in GPE , terminated the membership of the applicant ’s youth hostel , referring to a lack of cooperation and the applicant ’s negative attitude towards ORG . As a result , the hostel was no longer mentioned in ORG ’s catalogue of youth hostels in GPE . In DATE CARDINAL of the youth hostels in GPE were enrolled in ORG .

ORG The applicant brought proceedings in ORG ( tingsrätten ) of GPE . He contested what he considered to be his personal exclusion from ORG , alleging that it had been caused by ORG threats that it would take industrial action against other youth hostels enrolled in ORG if his hostel was not excluded . He also challenged ORG ’s termination of the membership of his youth hostel .

ORG accepted , inter alia , that although the termination of the membership contract concerning the applicant ’s youth hostel had not been prompted by the conflict between the applicant and the trade unions , this conflict might have affected the timing of the decision . ORG also referred to an opinion of ORG ( ombudsmannen för näringsfrihet ) of DATE to the effect that the termination of the contract in question would have only a very limited impact on his business .

ORG By a judgment of CARDINAL DATE ORG rejected the applicant ’s action on both points . It found , inter alia , that the applicant had not shown that he had been personally excluded from ORG by virtue of the termination of ORG ’s contract concerning his youth hostel . It also found that he had not shown that the contract had been financially significant to his business . Reference was made to ORG finding .

ORG The applicant appealed to ORG ( PERSON hovrätt ) which , on DATE , upheld ORG judgment . ORG found , inter alia , that ORG ’s termination of the contract concerning the youth hostel had entailed the expiry of the applicant ’s personal membership of ORG . This , however , had not been tantamount to his exclusion , given that he could have continued or renewed his membership . Moreover , although the contract had been of appreciable significance to the applicant ’s business , ORG ’s termination of the contract could not be considered unreasonable .

ORG At DATE the applicant sold his restaurant due to his difficulties in running his business which had allegedly been caused by the industrial action . The restaurant was bought by a person who signed a collective agreement with ORG . He continued , together with his family , to run the youth hostel in GPE .

Following the above , the union action was terminated .

ORG On DATE the applicant requested the Government to support his application to the Commission . On DATE the ORG decided not to take any action in respect of the request .

ORG LAW , LAW , of ORG provides :

" All citizens shall be guaranteed the following in theirrelations with the public authorities :

freedom of expression : the freedom to communicateinformation and to express ideas , opinions and emotions whether orally , in writing , in pictorial representations , or in anyother way ;

freedom of association : the freedom to unite with othersfor public or private purposes ; ... "

ORG According to LAW , LAW :

" All citizens shall be protected in their relations with the public authorities against all coercion designed to compel themto divulge an opinion in any political , religious , cultural orother similar connection . They shall furthermore be protectedin their relations with the public authorities against allcoercion designed to compel them to participate in any meetingfor the formation of opinion or in any demonstration or otherexpression of opinion or to belong to any politicalassociation , religious congregation or other association foropinions of the nature referred to in the first sentence . "

ORG LAW , LAW paras . CARDINAL and CARDINAL , reads :

" The freedoms and rights referred to in LAW paras . CARDINAL ... may be restricted by law to the extent provided for inArticles CARDINAL - CARDINAL ...

The restrictions referred to in the preceding subsection mayonly be imposed to achieve a purpose which is acceptable in ademocratic society . The restriction may never exceed what isnecessary having regard to the purpose which occasioned it , normay it be carried so far as to constitute a threat to the freeformation of opinion as CARDINAL of the foundations of democracy . No restriction may be imposed solely on grounds of political , religious , cultural or other such opinions . "

ORG LAW , Article CARDINAL para . CARDINAL provides :

" ORG may only be restricted in respect of organisations whose activities are of a military nature or the like or which involve the persecution of a population group of a particular race , skin colour or ethnic origin . "

ORG Pursuant to LAW , LAW :

" Any trade union or employer or association of employers has a right to take industrial action unless otherwise provided by law or by agreement . "

Section CARDINAL of the DATE Act on Co - Determination at Work reads :

" Right of association means the right of employers andemployees to belong to an organisation of employers oremployees , to benefit from their membership as well as to workfor an organisation or for the founding of one . "

Section CARDINAL provides :

" The right of association shall not be violated . A violation ... will occur , if anyone from the employer ’s side or the employee ’s side takes any action to the detriment of anybodyon the other side by reason of that person having exercised hisright of association , or if anybody on either side takes anyaction against anybody on the other side with a view toinducing that person not to exercise his right of association . A violation will occur even if the action so taken is designedto fulfil an obligation towards another party .

An ORG or employees’ organisation shall not have to tolerate a violation of its right of association encroaching upon its activities . Where there is both a local and a central organisation , these provisions shall apply to the central organisation .

If the right of association is violated by termination of anagreement or another legal measure or by a provision in acollective agreement or other contract , that measure orprovision shall be void . "

ORG According to section CARDINAL :

" An employees’ organisation shall have the right to negotiatewith an employer regarding any matter relating to therelationship between the employer and any member of theorganisation who is or has been employed by that employer . PERSON shall have a corresponding right to negotiate with ORG organisation .

A right of negotiation ... shall also be enjoyed by the employees’ organisation in relation to any organisation towhich an employer belongs , and by the ORG organisationin relation to the GPE organisation . "

ORG LAW , LAW , of ORG provides :

" Legal disputes between private subjects shall only be settledby a court of law , unless otherwise provided by law ... "

ORG In principle , it is possible for an employer against whom industrial action has been instituted to request a court injunction requiring that the action cease , and to claim damages . Such orders may be made by the relevant court if the industrial action is unlawful or in breach of an existing collective agreement .

If the industrial action amounts to a criminal offence , a claim for compensation may be made LAW , section CARDINAL , of LAW ( skadeståndslag CARDINAL:CARDINAL ) .

ORG Pursuant to LAW , a person who has been a party to administrative proceedings before the ORG or another public authority may , in the absence of any other remedy , apply to ORG , as the first and only judicial instance , for review of any decisions in the case which involve the exercise of public authority vis - à - vis a private individual . The kind of administrative decision covered by the LAW is further defined in LAW , ORG and CARDINAL , of ORG , to which section CARDINAL of the DATE LAW . According to these provisions the LAW encompasses measures concerning , inter alia , personal and economic matters arising in relations between private persons and between such persons and the ORG . LAW specifies several types of decision which fall outside its scope , none of which are relevant in the instant case .

In proceedings brought under LAW , ORG examines whether the contested decision " conflicts with any legal rule " ( section CARDINAL of the DATE Act ) . If the court finds that the impugned decision is unlawful , it must quash it and , where necessary , refer the case back to the relevant administrative authority ( section CARDINAL of LAW ) .


CASE OF PLATTFORM "ÄRZTE FÜR DAS LEBEN" v. AUSTRIA

ORG NORP " ORG für das PERSON " is an association of doctors who are campaigning against abortion and are seeking to bring about reform of the NORP legislation on the matter . In DATE and DATE it held CARDINAL demonstrations which were disrupted by counter - demonstrators despite the presence of a large contingent of police .

ORG The applicant association decided to hold a religious service at ORG ( GPE ) on DATE , after which there would be a march to the surgery of a doctor who carried out abortions . As required under LAW of DATE ( see paragraph CARDINAL of the Commission ’s report ) , it gave notice , on DATE , to the police authority for the district of ORG . The police made no objection and gave the participants permission to use the public highway . The police did , however , have to ban CARDINAL other planned demonstrations , which were announced subsequently by supporters of abortion , as these demonstrations were to be held at the same time and in the same place as the NORP demonstration .

ORG As the organisers feared that incidents might occur nonetheless , they sought - shortly before the beginning of the march - to change their plans , in consultation with the local authorities . They gave up the idea of demonstrating outside the doctor ’s surgery and decided instead to march to an altar erected on a hillside quite a distance away from the church and hold a religious ceremony there .

ORG The police representatives pointed out to them that the main body of the police officers had already been deployed along the route originally planned and that because of the lie of the land the new route was not suited to crowd control . They did not refuse to provide protection but stated that - irrespective of the route chosen or to be chosen - it would be impossible to prevent counter - demonstrators from throwing eggs and disrupting both the march and the religious service .

ORG During the mass , a large number of counter - demonstrators - who , it seems , had not given the notice required under LAW - assembled outside the church and were not dispersed by the police . They disrupted the march to the hillside by mingling with the marchers and shouting down their recitation of the rosary . The same thing happened at the service celebrated in the open air : CARDINAL people attempted to interrupt it using loudspeakers and threw eggs and clumps of grass at the congregation .

ORG At the end of the ceremony , when tempers had risen to the point where physical violence nearly broke out , special riot - control units - which had until then been standing by without intervening - formed a cordon between the opposing groups , and this enabled the procession to return to the church .

ORG In a letter to ORG , the chairman of the association described the counter - demonstrators’ behaviour as " relatively peaceful " : on other occasions , the opponents of NORP had attacked the association ’s members and had assaulted policemen .

ORG On DATE , the applicant association lodged a disciplinary complaint ( LANGUAGE - see paragraphs CARDINAL - CARDINAL of the Commission ’s report ) alleging that the local police had failed to provide sufficient protection for the demonstration .

ORG considered that the behaviour of the police had been irreproachable and it decided not to take any disciplinary measures against them . It referred to the difficulty of completely protecting an open - air demonstration from verbal abuse and from missiles which were not likely to cause the participants any physical harm . The ORG added that , in not intervening , the police had been prompted by the concern to avoid more serious trouble .

Plattform subsequently lodged an appeal with ORG ( Verfassungsbeschwerde - see paragraphs CARDINAL of the Commission ’s report ) ; in the association ’s submission the local authorities’ failure to act had in the instant case allowed an infringement of the freedoms of assembly and religious observance , both of which were guaranteed by LAW .

On DATE , the ORG heard evidence from several witnesses with a view to establishing the facts sufficiently clearly . In a judgment on DATE , it held that it had no jurisdiction and consequently declared the appeal inadmissible . It noted that the applicant association ’s complaint was clearly not directed against a " decision " or acts of direct administrative coercion within the meaning of LAW ( see ORG of ORG , no . CARDINAL/CARDINAL ) .

Plattform did not take any ordinary criminal proceedings by lodging a complaint or by bringing a subsidiary private prosecution ( " Subsidiaranklage " - see paragraphs LAW of the Commission ’s report ) .

ORG and the local police , however , opened investigation proceedings against a person or persons unknown for disruption of a meeting . For its part , a private organisation , the " Österreichische Bürgerinitiative zum PERSON " , lodged a complaint against CARDINAL of the counter - demonstrators , a member of parliament , alleging obstruction of a religious ceremony and incitement to hatred under ORG CARDINAL , CARDINAL and CARDINAL of LAW as well as an offence against LAW . Complaints were also lodged against CARDINAL other people .

The PERSON public prosecutor discontinued the proceedings on DATE , however , under LAW .

ORG One person caught in the act of throwing eggs was fined CARDINAL NORP schillings under section IX of the law enacting LAW ( see paragraph CARDINAL of the Commission ’s report ) .

ORG The competent police authority gave permission for a second demonstration against abortion to be held in the cathedral square in GPE on DATE . An anniversary meeting was due to be held in the square by ORG on DATE , but it had to be cancelled because notice of it had been given after the applicant association had given notice of its own meeting .

The demonstration began at TIME and ended with an TIME of prayers inside the cathedral .

At TIME CARDINAL people angrily shouting their opposition had passed through the CARDINAL archways which provide access to the square and gathered outside the cathedral . CARDINAL policemen formed a cordon around the NORP demonstrators to protect them from direct attack . Other trouble was caused by sympathisers of an extreme right - wing party , the ORG , who voiced their support for ORG . The police asked the association ’s chairman to order these people to disperse , but without success .

In order to prevent the religious ceremony being disrupted , the police cleared the square .

ORG No proceedings were taken after these incidents , and in view of ORG decision of CARDINAL DATE the applicant association considered that a second appeal would have served no purpose .


Preliminary objection dismissed (six-month period);Violation of Art. 6-1;Non-pecuniary damage - award

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

The applicant association was registered in DATE by ORG ( “ the GPE ” ) at the following address : CARDINAL , Revolution Place , PERSON , GPE . However , the applicant association has since moved to CARDINAL - CARDINAL , FAC , PERSON . As appears from the materials of the case , in particular , from the letter of CARDINAL DATE , ORG was aware of the applicant association ’s actual address .

NORP In DATE a new PERSON on non - governmental organisations was enacted . The PERSON required that all NGOs established before DATE be re - registered before DATE . The applicant association applied twice to the ORG seeking re - registration . However , its applications were refused .

NORP The applicant association brought an action against the GPE seeking re - registration of the association . On DATE ORG of GPE allowed the applicant association ’s claim and ordered the ORG to register the applicant association . ORG also ordered the reimbursement by ORG the court fees paid by the applicant association . That decision was upheld by ORG of ORG on DATE .

On DATE the Vice - President of ORG brought an extraordinary appeal ( надзорная жалоба ) against the decisions of DATE and DATE . As appears from the letter of the registry of ORG of DATE , on CARDINAL DATE a copy of the appeal was sent to the applicant association ’s previous address , which appeared in the association ’s official registration documents . On DATE the letter from the registry reached its destination , but it was returned to the sender marked by the postman as follows : “ no [ such ] public organisation is registered [ at this address ] ” .

On DATE the Presidium of ORG of GPE quashed the lower courts’ decisions by way of a supervisory review . The reasoning of the ORG reads as follows :

“ Pursuant to LAW commercial courts could determine economic disputes arising from civil , administrative and other legal relationships .

Under Articles CARDINAL and CARDINAL of LAW , as well as LAW a public association is a non - profit organisation .

Disputes concerning [ State ] registration or re - registration of non - profit organisations are not economical by their nature and [ hence ] do not fall within the competence of the commercial courts . ”

As a result , the proceedings were discontinued . The hearing took place in the absence of the parties .

On DATE a copy of the decision of ORG was sent to the applicant association ’s previous address . This document was delivered on DATE ; however it was also returned to the registry marked as follows : “ [ this is ] the address of the village council , the receptionist refused to take delivery [ of this letter ] ” .

According to the applicant association , on several occasions it applied to ORG of GPE with a view to urging ORG to enforce the judgment of CARDINAL DATE , as upheld on DATE , and register the association , but to no avail . In DATE a law clerk of ORG of GPE informed the applicant association of the annulment of the decision of DATE , as upheld on DATE . On DATE the applicant association wrote a letter to the President of ORG asking for a copy of the decision of that court . The applicant association received it on DATE .

Shortly thereafter the applicant association challenged the refusal of ORG before the courts of general jurisdiction . By a final decision of DATE ORG allowed the applicant association ’s claim , ordering ORG to register the applicant association .

NORP In DATE the applicant association challenged the relevant provisions of LAW before LAW . On DATE ORG declared this complaint inadmissible . The ORG found that , although the provisions challenged did not establish any time - limits for bringing an extraordinary appeal , the time within which the appeal was brought in the applicant ’s case had not exceeded the “ reasonable time ” , and , therefore , the applicant ’s rights had not been breached by it .

The Law On Public Associations ( No . CARDINAL-FZ of CARDINAL DATE , as amended ) , concerning non - profit NGOs , provided that the refusal of the competent ORG to register a public association could be challenged before a court ( LAW ) .

Since DATE the NORP judicial system has comprised of CARDINAL elements – courts of general jurisdiction , commercial courts and constitutional courts . LAW of DATE ( No . CARDINAL-FZ of CARDINAL DATE , in force at the material time but repealed on DATE , hereafter “ the old Code ” ) stated that the commercial courts could determine “ economic disputes arising from civil , administrative and other legal relationships ... between legal persons ... ” ( Section CARDINAL § CARDINAL of the old Code ) . Article CARDINAL § CARDINAL of the old Code provided that “ economic disputes ... include disputes .... challenging the refusal of a ORG body to register a legal person where such registration is required by the Law ” .

The Code of Commercial Procedure of DATE ( in force from DATE , hereafter “ the new Code ” ) contains a similar provision which defined the competence of the commercial courts based on CARDINAL criteria : the subject matter of the dispute ( “ economic disputes ” ) and the status of the litigants ( “ legal persons ” ) . Article CARDINAL of the new Code stipulates that disputes concerning the creation , reorganisation and liquidation of legal persons was within the competence of the commercial courts .

Under section CARDINAL of ORG of GPE ( No . CARDINAL , of DATE , as in force at the material time ) , ORG had , inter alia , the right to issue recommendations deriving from case - law ( разъяснения по вопросам судебной практики ) . On DATE ORG issued Recommendation no . DATE , “ On certain issues arising in connection with the enactment of LAW ” , which interpreted inter alia LAW . In LAW , ORG specified that the disputes concerning registration of non - profit organisations fall outside the competence of the commercial courts .

The Code provided that the judgments of commercial courts of first instance could be appealed within DATE of the date of their adoption ( LAW . Decisions of the courts of appeal were amenable to appeal to the court of cassation also within DATE of the date of their adoption ( Article CARDINAL ) .

LAW also established that any judgment or decision of any commercial court of GPE ( except for the decisions of the Presidium of ORG ) was amenable to supervisory review initiated on application by the President of ORG , or his deputy , or ORG , or his deputy ( Articles CARDINAL and CARDINAL ) . The Code did not list the grounds for lodging an application for supervisory review , or the time - limits for doing so . It specified that it could be lodged either on the initiative of the relevant ORG official or “ in connection with a request by a party to the proceedings ” ( LAW ) . The summoning of parties to a hearing before the Presidium of ORG was a discretionary right of the ORG ( LAW ) .

The Presidium of ORG was the court of final instance within the commercial court system ; no appeal lay against its decisions ( LAW ) .