Preliminary objection joined to merits and dismissed (Art. 34) Individual applications;(Art. 34) Victim;Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage)

Carlo Ranzoni;Ganna Yudkivska;Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

The applicant was born in 1977 and lives in Kranj.

In 2006 the Swiss law-enforcement authorities of the Canton of Valais conducted a monitoring exercise of users of the so-called “Razorback” network. The Swiss police established that some of the users owned and exchanged child pornography in the form of pictures or videos. Files containing illegal content were exchanged through the so-called “p2p” (peer-to-peer) file-sharing network in which each of the connected computers acted as both a client and a server. Hence, each user could access all files made available for sharing by other users of the network and download them for his or her use. Among the dynamic Internet Protocol (“IP”) addresses recorded by the Swiss police was also a certain dynamic IP address, which was later linked to the applicant.

Based on the data obtained by the Swiss police, on 7 August 2006 the Slovenian police, without obtaining a court order, requested company S., a Slovenian Internet service provider (hereinafter “the ISP”), to disclose data regarding the user to whom the above-mentioned IP address had been assigned at 1.28 p.m. on 20 February 2006. The police based their request on section 149b(3) of the Criminal Procedure Act (hereinafter “the CPA”, see paragraph 36 below), which required the operators of electronic communication networks to disclose to the police information on the owners or users of certain means of electronic communication whose details were not available in the relevant directory. In response, on 10 August 2006 the ISP gave the police the name and address of the applicant’s father, who was a subscriber to the Internet service relating to the respective IP address.

On 12 December 2006 the police proposed that the Kranj District State Prosecutor’s Office request the investigating judge of the Kranj District Court to issue an order demanding that the ISP disclose both the personal data of the subscriber and traffic data linked to the IP address in question. On 14 December 2006 such a court order was obtained on the basis of section 149b(1) of the CPA and the ISP gave the police the required data.

On 12 January 2007 the investigating judge of the Kranj District Court issued an order to carry out a house search of the applicant’s family home. The order indicated the applicant’s father as the suspect. During the house search the police and the investigating judge of the Kranj District Court seized four computers and later made copies of their hard disks.

Based on a conversation with the applicant’s family members, of which no record is available, the police changed the suspect to the applicant.

Reviewing the hard disks, the police found that one of them contained files with pornographic material involving minors. The police established that the applicant had installed eMule, a file-sharing program, on one of the computers by means of which he had been able to download different files from other users of the program and had also automatically offered and distributed his own files to them. Among the files downloaded by the applicant, a small percentage had contained child pornography.

On 26 November 2007 the Kranj District prosecutor requested that a judicial investigation be opened against the applicant.

In his defence before the investigating judge, the applicant argued, inter alia, that he had not been aware of the content of the files in question. He also argued that the ISP had unlawfully, without a judicial warrant, passed his data, including his address, to the police.

On 5 March 2008 the investigating judge of the Kranj District Court, opened a judicial investigation against the applicant on the basis of a reasonable suspicion that he had committed the criminal offence of displaying, manufacturing, possessing and distributing pornographic material under section 187(3) of the Criminal Code. The judge noted, among other things, that the applicant’s father had been the holder of the identified IP address and that the applicant had allegedly been logging into the respective program under the name of “Benet”.

On 17 March 2008 the applicant’s counsel lodged an appeal against the decision to open a judicial investigation. He argued, inter alia, that the evidence concerning the identity of the user of the respective IP address had been obtained unlawfully. That information concerned the traffic data and should therefore not have been obtained without a judicial warrant.

On 21 March 2008 an interlocutory panel of the court rejected the appeal finding that, although counsel had argued that the identity of the user of the IP address had been obtained unlawfully, he had not requested that certain documents be excluded from the file.

On 29 May 2008, the Kranj District State Prosecutor’s Office lodged an indictment against the applicant for the above-mentioned criminal offence.

At the hearing of 8 October 2008 the applicant lodged a written request for exclusion of evidence obtained unlawfully, including the information concerning the user of the respective IP address obtained without a court order.

On 5 December 2008 the court rejected the applicant’s request, finding that the data concerning the user of the respective IP address had been obtained in compliance with section 149b(3) of the CPA.

On 5 December 2008 the Kranj District Court found the applicant guilty of the criminal offence with which he had been charged. Based on the opinion of an expert in computer science, the District Court held that the applicant must have been aware of the 630 pornographic pictures and 199 videos involving minors which he had downloaded through p2p networks and made available for sharing with other users. The applicant was sentenced to a suspended prison term of eight months with a probation period of two years.

Both the applicant and the district state prosecutor appealed against the first-instance judgment. The applicant challenged the facts as established by the District Court. He also alleged that the subscriber information the Slovenian police had acquired without a court order, and thus unlawfully, should have been excluded as evidence. Consequently, all the evidence based on such unlawfully acquired data should also have been excluded.

On 4 November 2009 the Ljubljana Higher Court granted the appeal of the district state prosecutor in part, converting the applicant’s suspended sentence into a prison term of six months. The applicant’s appeal was dismissed as unfounded. The Higher Court confirmed that the first-instance court had correctly established the facts of the case; moreover, it held that the data concerning the user of the IP address had been obtained lawfully, as no court order was required for such a purpose.

The applicant lodged an appeal on points of law before the Supreme Court, reiterating that a dynamic IP address could not be compared to a telephone number which was not entered in a telephone directory, as a new IP address was assigned to a computer each time the user logged on. Accordingly, such data should be considered as traffic data constituting circumstances and facts connected to the electronic communication and attracting the protection of privacy of communication. The applicant argued that the Swiss police should not have obtained the respective dynamic IP address without a court order, and nor should the Slovenian police have obtained the data on the identity of the subscriber associated with the IP address without such an order.

On 20 January 2011 the Supreme Court dismissed the applicant’s appeal on points of law, reasoning that given the general accessibility of websites and the fact that the Swiss police could check the exchanges in the p2p network simply by monitoring the users sharing certain contents, that is without any particular intervention in internet traffic, such communication could not be considered private and thus protected by Article 37 of the Constitution. Moreover, in the Supreme Court’s view, the Slovenian police had not acquired traffic data about the applicant’s electronic communication, but only data regarding the user of a particular computer through which the Internet had been accessed.

The applicant lodged a constitutional complaint before the Constitutional Court, reiterating the complaints adduced before the lower courts.

The Constitutional Court asked the Information Commissioner to express her position on the issue. The Information Commissioner was of the view that the reason for obtaining the identity of an individual user of electronic communication was precisely that he or she communicated by means of more or less publicly accessible websites. In the Information Commissioner’s view, it was impossible to separate traffic data from subscriber data, as traffic data alone did not make any sense if one did not ascertain who the person behind those data was – this latter information was thus considered to be an extremely important element of communication privacy. The Information Commissioner also highlighted that the provisions of the Electronic Communications Act in force at the material time required a court order regarding all data related to electronic communications, irrespective of whether they related to traffic or identification data. In the Information Commissioner’s view, section 149b (3) of the CPA, which required only a written request from the police to obtain data on who was communicating, was constitutionally problematic.

On 13 February 2014 the Constitutional Court dismissed the applicant’s complaint, holding that his constitutional rights had not been violated. The Constitutional Court’s decision was adopted by seven votes to two. Judge J. Sovdat and Judge D. Jadek Pensa wrote dissenting opinions. The decision was served on the applicant on 11 March 2014.

The Constitutional Court pointed out, at the outset, that in addition to the content of communications, Article 37 of the Constitution also protected traffic data, that is any data processed for the transmission of communications in an electronic communications network. It considered that IP addresses were included in such traffic data. The Constitutional Court, however, concluded that the applicant, who had not hidden in any way the IP address through which he had accessed the Internet, had consciously exposed himself to the public and could not legitimately have expected privacy. As a result, the data concerning the identity of the user of the IP address were not protected as communication privacy under Article 37 of the Constitution, but only as information privacy under Article 38 of the Constitution, and no court order was required in order to disclose them in the applicant’s case.

The most relevant parts of the Constitutional Court’s decision are as follows (as translated into English on the Constitutional Court’s website):

“Review of the objections regarding access to the complainant’s IP address by the Swiss police

The second paragraph of Article 37 of the Constitution provides a higher level of protection than Article 8 of the ECHR as it requires a court order for any interference with the right to communication privacy ... The right to communication privacy determined by the first paragraph of Article 37 of the Constitution primarily protects the content of the communicated message. ... In addition to the message content, the circumstances and facts related to the communication are also protected. In accordance with this view, in Decision No. Up-106/05, dated 2 October 2008 (Official Gazette RS, No. 100/08, and OdlUS XVII, 84) the Constitutional Court extended the protection provided by Article 37 of the Constitution also to such data regarding telephone calls that by their nature constitute an integral part of communication so that such data cannot be obtained without a court order. The mentioned Decision refers otherwise to telephone communication, but the same conclusion can be applied mutatis mutandis to other types of communication at a distance. The crucial constitutional review test for the review of the Constitutional Court whether a particular communication is protected under Article 37 of the Constitution is the test of the legitimate expectation of privacy.

Communication via the internet takes place, in principle, in an anonymous form, which is essential for the free development of personality, freedom of speech, and the expression of ideas, and, consequently, for the development of a free and democratic society. The privacy of communication protected by the strict conditions determined by the second paragraph of Article 37 of the Constitution is therefore a very important human right that is becoming increasingly important due to technological advances and the related growing possibilities of monitoring. It entails individuals’ legitimate expectation that the state will leave them alone also in their communication through modern communication channels and that they do not necessary have to defend themselves for what they do, say, write or think. If there is a suspicion of a criminal offense the Police must have the ability to identify the individuals who have participated in a certain communication related to an alleged criminal offense, because the perpetrators are harder to trace due to this principle of anonymity on the internet. The conditions under which the Police can carry out investigative actions and whether they need a court order, however, depend on whether such entail an interference with the right to communication privacy.

As was pointed out above, in addition to the content of communications, Article 37 of the Constitution also protects traffic data. Traffic data signifies any data processed for the transmission of communications in an electronic communications network or for the billing thereof. Such entails that the IP address is a traffic datum. The Constitutional Court must therefore answer the question whether the complainant legitimately expected privacy regarding this datum.

Two factors must be weighed in relation to this review: the expectation of privacy regarding the IP address and the legitimacy of this expectation, where the latter must be of such nature that the society is willing to accept it as legitimate. The complainant in the case at issue communicated with other users of the Razorback network by using the eMule application to exchange various files, including those that contained child pornography. With regard to the general anonymity of internet users and also the content of the files, the Constitutional Court has no doubt that the complainant expected that his communications would remain private, and he also certainly expected that his identity would not be disclosed. The question therefore is whether such expectation of privacy was legitimate. The complainant has not established that the IP address through which he accessed the internet was hidden in any way, and thus invisible to other users, or that access to the Razorback network (and thus to the content of the files) was in any way restricted, for example by passwords or other means. ... In contrast, in the complainant’s case anyone interested in exchanging such data could have accessed the contested files, and the complainant has not demonstrated that his IP address was in any way concealed or inaccessible by other users of this network. This leads to the conclusion that this entailed an open line of communication with a previously undetermined circle of strangers using the internet worldwide who have shown interest in sharing certain files, while at the same time access to the IP addresses of other users was not limited to users of this network. Therefore, in the view of the Constitutional Court, the complainant’s expectation of privacy was not legitimate; that which a person knowingly exposes to the public, even if from a home computer and the shelter of his or her own home, cannot be a subject of the protection afforded by Article 37 of the Constitution. In view of the foregoing, the contested standpoint of the Supreme Court does not raise concerns regarding constitutional law. Obtaining the data regarding the complainant’

Review of the objections regarding access to data on the user of a certain IP address

The complainant also challenges the standpoint of the Supreme Court that by its request to the service provider under the third paragraph of Article 149.b of the CPA the Police did not acquire traffic data, but only data regarding a particular user of a determined means of communication ...

In the case at issue, on 7 June 2006, on the basis of the third paragraph of Article 149.b of the CPA, the Police sent a request to the service provider for data regarding the user to whom IP address 195.210.223.200 was assigned on 20 February 2006 at 13:28. In the response, they received data regarding the user’s name, surname, and address, while the time of the communication set to the nearest second was already known. Then on 14 December 2006 the Police also obtained an order issued by the investigating judge on the basis of the first paragraph 149.b of the CPA and the service provider also provided the traffic data on the basis of this order. The main issue for the Constitutional Court at this point is therefore whether obtaining the data regarding the identity of the user of a determined IP address falls within the framework of communication privacy.

In accordance with the position of the Constitutional Court in Decision No. Up-106/05, Article 37 of the Constitution also protects traffic data, i.e. data regarding, for example, who, when, with whom, and how often someone communicated. The identity of the communicating individual is one of the important aspects of communication privacy, therefore it is necessary to obtain a court order for its disclosure in accordance with the second paragraph of Article 37 of the Constitution. Despite this standpoint, the Constitutional Court decided that the complainant’s allegation of a violation of Article 37 of the Constitution is unfounded in the case at issue. By his conduct, the complainant has himself waived protection of his privacy by publicly revealing both his own IP address as well as the content of his communications, and therefore can no longer rely on it as regards the disclosure of his identity. Since by such he also waived the legitimate expectation of privacy, the data regarding the identity of the IP address user no longer enjoyed protection in terms of communication privacy, but only in terms of information privacy determined by Article 38 of the Constitution. Therefore, by obtaining the data on the name, surname, and address of the user of the dynamic IP address through which the complainant communicated the Police did not interfere with his communication privacy and therefore did not require a court order to disclose his identity. In view of the foregoing, the contested position of the Supreme Court is not inconsistent with Article 37 of the Constitution, and the complainant’s complaints in this part are unfounded.”

Judge J. Sovdat welcomed the Constitutional Court’s departure from the Supreme Court’s view that the information concerned had not amounted to traffic data. However, in her view, the police wishing to obtain identification of the subscriber should have requested a court order. She pointed out that the Constitutional Court’s conclusion implied that the protection of privacy of traffic data was always dependent on the protection of the content of communication. Accordingly, traffic data concerning certain communication were protected as long as the content of that communication was protected. Consequently, an individual could not enjoy separate and independent protection of traffic data. Judge Sovdat disagreed with this view, pointing out that the applicant had not appeared in public under his own name, but only through the digits of his dynamic IP address.

Judge Sovdat agreed with the Information Commissioner that the police had been interested not in the ownership of the device but in “the identity of the person communicating and precisely because he had been communicating”. She endorsed the Commissioner’s view that “the content of communication alone did not have any particular weight in the absence of identification of those communicating”. She also pointed out that under sections 166 and 168 of the new Electronic Communications Act (“ECA-1”, see paragraph 39 below), the Internet provider was not allowed to transfer the stored information without a court order. Compared with section 149b(3) of the CPA, the ECA was definitely more recent and therefore the decision of the majority ran contrary to the level of rights protection already achieved.

Judge D. Jadek Pensa argued that the constitutional guarantees set out in Article 37 of the Constitution were aimed at strengthening the expectation of privacy in this area of life and preventing disproportionate interferences and an abuse of power by the executive.

As regards the applicant’s expectation of online anonymity, Judge Jadek Pensa argued that none of the data publicly disclosed by the complainant revealed his identity. In her view, anonymity was what prevented the police from linking a particular communication with a particular person – that is, linking a dynamic IP address and an individual with his or her name and address. She further argued that the question whether the applicant’s manner of communication could lead to the conclusion that his expectation of privacy had not been objectively justified had to be approached by taking all the circumstances into account, including the law that had been in force at the relevant time. She explained that the ECA (sections 103(1(2)), 104(1) and 107 – see paragraphs 37 below) required Internet providers to delete traffic data as soon as they were no longer needed for the transfer of messages. Moreover, section 107 of the ECA provided that the secrecy of communication could be interfered with only on the basis of a decision by a competent authority. A letter from the police to an Internet provider could not be considered to amount to such a decision. Thus, even if section 149b(3) of the CPA could be interpreted as allowing the police to ask for information on an Internet subscriber, it should not apply in the situations covered by the ECA, which explicitly concerned the “protection of secrecy and confidentiality of electronic communications”. Otherwise, the legislation would be contradictory. The judge concluded that the applicable legal framework could not therefore have led to the conclusion that the applicant, as a reasonably and sufficiently informed individual, could not have expected privacy; that is, he could not have expected that his anonymity would be protected.

Judge Jadek Pensa went on to elaborate on the neutrality of traffic data, such as data on the user of a certain dynamic IP address:

“9. The traffic datum – the dynamic IP address that was assigned randomly at a given moment – as I understand it, reveals how the internet was used on some computer, because it is inextricably attached to a specific connection. ... This is because only the two data jointly communicate how the internet was used in a non-anonymised way, i.e. regarding internet use in connection with an identified person. This essential circumstance in my opinion negates the notion of the neutrality of the datum regarding a specific user of services for a certain (known) dynamic IP address that the police sought through the service provider - namely, the neutrality of the datum in terms of denying its ability to communicate anything more than the name and address of a certain person (who has a subscription contract with the service provider). Precisely because this datum is inseparably linked to a specific communication, the traffic datum falls within the scope of protected communication privacy.

Even if the service provider communicated to the police ‘only’ the data identifying a person who had a subscription contract with it, by doing so, as I understand it, the service provider in fact communicated (to put it simply) traffic data in an electronic communications network regarding this person. The police also, as I have already explained, wanted to determine more than just the name and surname of a certain person who had concluded a contract. Since, as I understand it, they asked for traffic data associated with a particular person they would have to proceed according to the first paragraph of Article 149.b of the CPA and obtain an order from the investigating judge.”


Remainder inadmissible (Article 35-1 - Six month period;Article 35-3 - Manifestly ill-founded);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Helen Keller;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in 1952 and lives in Tbilisi.

The applicant was chairperson of the Civil Aviation Agency of Georgia (“the CAA”) between 12 March 2002 and 13 March 2004, when he resigned. The CAA has legal personality under public law.

By a judgment dated 10 January 2003, delivered in the case of Airzena Georgian Airlines Ltd. v. Parliament and the Ministry for Transport and Communications, the Constitutional Court declared that it was unconstitutional to use the legal term “annual regulation fee for transport activities” (რეგულირების საფასური), which appeared in various relevant legal acts – the Act of 20 July 2001 on the Rules of State Management and Regulation of Transport and Communications (“the Regulation Act”), and the Orders of 28 December 2001, nos. 109 and 110, of the Minister for Transport and Communications (see paragraphs 5980 below).

The Constitutional Court considered that the aforementioned “annual regulation fee for transport activities”, which was a compulsory payment provided for in section 9(5) of the Regulation Act, was strictly speaking neither a tax nor a levy. However, Article 94 of the Constitution only recognised the latter two kinds of compulsory payment to the State. Furthermore, unlike taxes and levies, the regulation fee was not paid into the State’s coffers or to a local authority, but directly to the CAA. The Constitutional Court considered that in those circumstances the fee amounted to a special form of tax, which was a compulsory payment and which had the features of both a traditional levy (payable in exchange for a service or the granting of a right) and of a tax (payable on the annual income of the body concerned).

The defendant authorities – Parliament and the Ministry for Transport and Communications – argued before the Constitutional Court that there was a need for some kind of compulsory regulation fee for transport activities because it was not possible for the CAA to sign contracts with civil aviation companies. The Constitutional Court dismissed that argument, pointing out that the regulation of transport activities meant the provision of a service by a public authority in exchange for the payment of a fee for that service. Such relationships could only arise within the framework of a mutual contract, freely entered into by the parties concerned. A fee received by a public authority for a service should therefore take the form of income received for work carried out on a contractual basis, in accordance with section 13(d) of the Public-Law Entities Act.

The Constitutional Court further observed that the claimant, a private airline, would obviously never be able to carry out its business without the transport service provided by the CAA. However, regard being had to the principle of the freedom to choose services, even an undeniably necessary service should be the subject of a free agreement between the parties. The Constitutional Court thus concluded that if the matter at issue were settled in that way, then future situations in which the payment of considerable amounts imposed unilaterally by a public authority, in total disregard of the opinions of the companies concerned, would be avoided. The Constitutional Court emphasised that not even constitutional provisions could prevent a public authority in charge of the regulation of civil aviation from signing a contract with a private entity which included conditions and rules for services to be provided under that contract.

The Constitutional Court ruled that its judgment of 10 January 2003 would become effective on 1 April 2003.

On 13 February 2004 criminal proceedings were instituted for abuse of power against unnamed officers of the Ministry of Transport and Communications, the CAA and two State-owned civil aviation companies. That decision was taken on the basis of information provided by “an investigative journalism organisation carrying out research into corruption”.

On 16 March 2004 a charge of repeated abuse of power was brought against the applicant himself, under Article 332 §§ 1 and 3 (a) of the Criminal Code, by the General Public Prosecutor’s Office (“the GPPO”). He was accused in particular of having entered into civil contracts in his capacity as chairperson of the CAA on 28 March and 13 August 2003 with three civil aviation companies – Sakaeronavigatsia, Tbilisi International Airport and Air-GP-Georgia – which undertook to pay the CAA on a monthly basis a “fee for services rendered in relation to the regulation of activities” (მომსახურების საფასური). Accordingly, between April and September 2003 the CAA received 600,000 Georgian laris (GEL) (about 280,000 euros (EUR)). According to the investigator, the applicant’s actions in using the words “fee for services rendered in relation to the regulation of activities” (hereinafter “fee for services”) had concealed what had actually in fact amounted to the old “annual regulation fee for transport activities”, a legal term and obligation which had become unconstitutional after 1 April 2003, when the Constitutional Court judgment of 10 January 2003 had entered into force (see paragraph 13 above).

The applicant was further accused of having issued Order no. 1 of 25 November 2003, and of applying it retroactively, again in breach of the Constitutional Court’s judgment of 10 January 2003 (see paragraph 81 below). The order had allowed the CAA to charge Sakaeronavigatsia and Tbilisi International Airport the sum of GEL 134,609 (about EUR 64,000) between 1 October and 5 December 2003 in respect of the regulation fee.

Thus, by having wilfully circumvented the legal effects of the Constitutional Court’s judgment of 10 January 2003, the applicant “had acted unlawfully and had therefore committed an abuse of power”.

The applicant was arrested on 16 March 2004. He was charged on 17 March 2004 but pleaded not guilty.

On 19 March 2004 the Krtsanisi-Mtatsminda District Court of First Instance in Tbilisi (“the Krtsanisi-Mtatsminda Court”), allowing an application by the GPPO, ordered the applicant’s detention for three months, pending investigation and trial.

By a final decision of 25 March 2004, the Tbilisi Regional Court dismissed an appeal by the applicant as inadmissible and upheld the detention order of 19 March 2004.

On 14 June 2004 the Tbilisi Regional Court, after hearing both parties’ arguments, allowed an application by the GPPO to extend the applicant’s pre-trial detention until 16 September 2004. No appeal lay against that decision, and it was therefore final.

On 20 July 2004 an accountancy expert from the crime detection department of the Ministry of the Interior, whose services had been solicited by the GPPO as part of the investigation of the applicant’s case, drew up an audit of the CAA’s regulatory activities (“the audit report of 20 July 2004”). Firstly, the expert listed the acts which constituted the legal basis for the activities of the CAA and which were in force before and after 1 April 2003, when the Constitutional Court’s judgment of 10 January 2003 had entered into force. He then distinguished three periods of activity: (i) the period between 1 January 2002 and 1 April 2003, corresponding to the imposition of “the annual regulation fee for transport activities” by the CAA on the civil aviation companies concerned; (ii) the period between 1 April and 1 October 2003, corresponding to the regulation by the CAA of the activities of the companies in question in accordance with conditions negotiated as part of the contracts it entered into; and (iii) the period between 1 October 2003 and 13 March 2004, when the CAA had collected regulation fees on the basis of Order no. 1, which had been issued by its chairperson, the applicant, on 25 November 2003.

The expert noted that the adoption of the Constitutional Court’s judgment of 10 January 2003 had led to “the suppression of the imposition by the CAA, in the form of an order, of the ‘annual regulation fee for transport activities’ on companies operating within civil aviation and the removal of the compulsory nature of the payment of that fee”. However, “the judgment in question had not declared that it was unlawful for the CAA to provide its services to the companies concerned on the basis of negotiated contracts”. According to the expert, the judgment indicated, on the contrary, that there was a “need for such contracts and a legal settlement of the issue in this way”. The expert assumed that the applicant had taken the latter route, “which had been suggested to him by the Constitutional Court”. That had brought him to sign the impugned contracts with Sakaeronavigatsia and Tbilisi International Airport on 28 March 2003, that is to say, three days before the entry into force of the judgment in question. On 13 August 2003 the applicant had signed the same kind of contract with Air-GP-Georgia. In each case, the CAA’s remuneration had been calculated on a monthly basis and was referred to as a fee for services provided in the field of regulation. The three contracts had been terminated on 1 October 2003.

As regarded Order no. 1, which had been issued by the applicant on 25 November 2003, the expert noted that the order, approved for entry into force by the Ministry of Justice on 27 November 2003, had been able to be applied retrospectively, that is as of 1 October 2003, which was the date of the termination of the three above-mentioned contracts. He said the order showed good conduct in the financial activities relating to the functioning of civil aviation in the country which, by its very nature, had to be a continuous process.

After examining the available evidence, the expert concluded that the CAA’s charging of the fees for the three above-mentioned periods of activity “was based on the relevant laws and regulatory acts”. He established, moreover, that the regulation fee at that time constituted the sole source of revenue for the CAA, a public-law entity not financed by the State. Had it not charged those amounts, the CAA would have been obliged to continue functioning without, though, paying its employees’ salaries. The expert reiterated that the regulation fee paid to the CAA by the companies concerned was included in the price for the service that those companies offered to individuals (air travel tickets) or other companies (carriage of goods). Payment of the fee to the CAA did not therefore cause them any financial damage and, even if there had nevertheless been a loss, it would in the end have been passed on to the consumer.

Generally, the expert established that the CAA had received, between 1 April 2003 and 13 March 2004, GEL 630,000 (some 310,000 euros (EUR)) in fees for the regulatory services provided under the three impugned contracts with Tbilisi International Airport, Air-BP-Georgia and Sakaeronavigatsia, and GEL 774,376 (some EUR 380,000) by way of the fee collected on the basis of Order no. 1. In any event, the expert emphasised that the charging of those sums by the CAA to the various private companies had been continuous in time and had been based on valid legal acts (either statutes or other legal instruments). Out of all the abovementioned amounts received by the CAA between 1 April 2003 and 13 March 2004, the applicant had made a personal profit of GEL 15,618 and 17,090 (some EUR 7,500 and 8,200) by way of, respectively, the salary and business trips allowances he had received over the same period of time. A further GEL 490,473.40 (some EUR 225,000) had been paid to the State Budget in income tax and social security charges, while the remaining funds had been spent on the salaries of other CAA employees and various business trips and management expenses.

On 31 August 2004 the preliminary investigation was terminated and a bill of indictment was served on the applicant. According to the bill, between 1 April and 1 October 2003 the CAA had carried out three unlawful activities: (i) firstly, it had received, in breach of the judgment of the Constitutional Court of 10 January 2003, a regulation fee from eight civil aviation companies; (ii) secondly, twenty-two companies had paid the CAA the same regulation fee on the basis of Order no. 1, issued by the applicant; (iii) and, thirdly, the three companies – Sakaeronavigatsia (a government-owned undertaking), Tbilisi International Airport and AirBPGeorgia – had paid the fee for services to the CAA on the basis of contracts concluded by the applicant. The pecuniary damage thus incurred by the companies concerned amounted to GEL one million, of which GEL 517,341.51 (some EUR 250,000) was caused to Sakaeronavigatsia. The applicant had used the amounts received to pay salaries and expenses for the management and business trips.

On 15 September 2004 the applicant challenged the indictment before the investigator of the Chief Prosecutor’s Office handling the case, arguing that the evidence that had been gathered did not support the charges. In particular, the investigation authorities had not explained how, within the meaning of Article 332 of the Criminal Code, the acts committed had damaged the “interests of the civil service”; what unlawful “personal profit” he had derived; what unlawful personal profit had been derived by third parties and who those people actually were; which of the rights of the companies concerned had been breached by his action; what legal interests of the State had been disregarded; and in what way that “disregard” had been “substantial” (see Article 332 of the Criminal Code, at paragraph 58 below). He again pointed out that the judgment of the Constitutional Court at issue authorised the CAA to continue to charge the fee for services, provided that the payment was based on negotiated contracts and not imposed, as hitherto. Contrary to the argument put forward by the investigator, the companies concerned could not be deemed to have incurred any substantial losses simply by having fulfilled contractual obligations which had been freely negotiated with the CAA. Moreover, those companies had never complained of the unlawfulness of the contracts in question. Lastly, the applicant argued that “none of the State’s legal interests” had been disregarded, given that the State could not claim to be a victim of contractual relationships between two entities which were independent of it.

On 16 September 2004 the investigator rejected that complaint as illfounded. He pointed out that the indictment of 31 August 2004 had been based on evidence gathered during the investigation, and that such evidence was sufficient to dispel any doubts that the applicant had committed the offence provided for in Article 332 §§ 1 and 3 (a) of the Criminal Code. In particular, the investigator pointed out that everyone had to comply with the judgment of the Constitutional Court of 10 January 2003, which had the force of law, but which the applicant had failed to do. After 1 April 2003, the date of entry into force of that judgment, the applicant had continued to charge the regulation fee, referring to it as a “fee for services provided in the field of the regulation of activities” in order to conceal the nature of the activity. The Constitutional Court had considered, however, that revenues gained by the CAA in the form of a regulation fee were unconstitutional. The applicant and his employees had derived a personal profit from the amounts at issue in the form of salaries, and management and business trip fees. For example, the applicant had received total salary of GEL 15,618 (some EUR 7,500). According to the investigator, even if most of the companies concerned had declared that they had not incurred any loss from the applicant’s activities, the charging by the CAA of the disguised regulation fee in breach of the judgment of the Constitutional Court had damaged the legal interests of the State. Furthermore, by giving retrospective effect to Order no. 1, registered by the Ministry of Justice on 27 November 2003, the applicant had jeopardised the well-being of the companies concerned.

On 18 September 2004 the applicant lodged an appeal against that decision with the Chief Prosecutor. He stated that the investigator had failed properly to the arguments made in his complaint of 15 September 2004 (see paragraph 28 above).

On 18 September 2004 a prosecutor from the Chief Prosecutor’s Office replied to the applicant, stating that his appeal had been rejected because the decision of 16 September 2004 had properly and exhaustively addressed all his claims.

On 20 September 2004 the indictment was approved by a deputy chief prosecutor and the case sent for trial before the Vake-Saburtalo District Court of First Instance in Tbilisi (“the Vake-Saburtalo Court”).

On 1 February 2005 the applicant applied to the Vake-Saburtalo Court, claiming that he had been unlawfully detained since 16 September 2004. In particular, the period of his pre-trial detention had expired on that date and had not been extended. He asked that he be released immediately.

On 16 March 2005 the Vake-Saburtalo Court held a pre-trial conference hearing in the case, ruling to commit the applicant for trial as a defendant (Article 417 §§ 1 and 3 of the CCP). Without replying to the applicant’s complaint of 1 February 2005 of the unlawfulness of his pre-trial detention, the court upheld the restraint measure on the basis of the “nature of the charges” and the inability to conduct a comprehensive judicial assessment of his arguments for release at the admissibility stage.

On an unspecified date, subsequent to a reform of the judicial system and the associated liquidation of the Vake-Saburtalo District Court, the applicant’s case was assigned for trial to the newly created Tbilisi City Court.

When questioned by the Tbilisi City Court during the trial, the acting director and the chief accountant of Sakaeronavigatsia confirmed that their company had paid the relevant fee to the CAA even after the Constitutional Court’s judgment of 10 January 2003, either on the basis of a contract or on the basis of Order no. 1. They did not know at the time that they were exempted from paying the fee by the Constitutional Court’s ruling.

The managers of Tbilisi International Airport and Air-BP-Georgia, which specialised in fuel distribution, confirmed to the trial court that their companies had paid the amounts at issue pursuant to contracts that they had freely entered into with the CAA. They specified that in exchange for the fee the CAA licensed their companies’ activities, and that without such certification it would have been impossible for Tbilisi International Airport to host international flights.

When questioned by the trial court, Mr Dj.K., the first deputy chairperson of the CAA, explained that at the material time, a new law, which should have been passed following the judgment of the Constitutional Court of 10 January 2003, had been delayed and that, if the applicant had not decided to enter into contracts with companies whose activities were subject to regulation, the CAA, which received no funding from the State, would have had to cease operations. That would have meant that employees of Georgian airports would no longer have been certified, that no aircraft would have been able to land at those airports and that no country would have allowed aircraft that had taken off from those airports onto its territory. By way of an example, Airzena, the airline behind the request which had resulted in the judgment of the Constitutional Court of 10 January 2003, leased its aircraft in Germany on the condition that the CAA, under an agreement entered into with the German civil aviation authority, assumed responsibility for supervising those aircraft and regulating the corresponding activities. If the CAA were to cease operations, Germany would no longer lease its aircraft to Airzena. It was to prevent any such blockages in the field of civil aviation in Georgia that the applicant had entered into the contracts, in accordance with the Public-Law Entities Act and the judgment of the Constitutional Court at issue.

The second deputy chairperson of the CAA told the court that he had personally worked on drafting contracts which were subsequently entered into with the three civil aviation companies. He maintained that those contracts, which had become the only source of funding for the CAA, had become necessary after the Constitutional Court had invalidated the relevant legal provisions by declaring them unconstitutional.

The CAA’s accountant explained before the trial court that on 1 January 2002 the CAA had been split from the Ministry of Transport, on the recommendation of the World Bank, and that it had become legally fully independent. The exercise of public duties had been delegated to it, including the supervision of flight safety. Since that date, the CAA had not been funded from the State budget, and had therefore been obliged to collect duties from the various private companies working in civil aviation. However, since the relevant legal provisions regulating the collection of “the annual collection fee for transport activities” had been declared invalid by the Constitutional Court, the CAA, pending the passing by Parliament of new legislation on the matter, had been forced to make contracts with civil aviation companies. Subsequently, after the amendment of the Regulation Act on 14 August 2003 (see paragraphs 7780 below), the chairperson of the CAA, the applicant, had become entitled to issue orders setting the amount of fees payable by the companies.

When questioned by the trial court, the representatives of various other private companies working in civil aviation, who were contractors of the CAA, stated that prior to 1 April 2003, they had paid the regulation fee in accordance with the law. Following the judgment of the Constitutional Court of 10 January 2003, they had stopped doing so and had only resumed payments on 1 October 2003, as a result of Order no. 1, issued by the applicant.

When questioned by the trial court, the accountancy expert from the Ministry of the Interior who had authored the audit report on the CAA’s activities confirmed the conclusions in the report relating to the legality of the CAA’s transactions between 1 April 2003 and 13 March 2004.

In his submissions before the court, the applicant first reiterated the arguments he had made during the investigation, notably in his complaint of 15 September 2004 (see paragraph 28 above). The applicant then argued that of the amounts which he had been unjustifiably accused of charging unlawfully, he had paid GEL 490,473 (some EUR 225,000) to the State, while the remainder had been used to fund the CAA’s operations (see the aforementioned expert report cited at paragraphs 22-26 above). Consequently, neither he nor anyone else had derived any personal profit from the amounts in question. The applicant argued that the accountancy expert’s report confirmed the legality of his actions. He explained that the reason the Constitutional Court had delayed the entry into force of its judgment of 10 January 2003 had been to grant Parliament sufficient time to legislate and fill the gap arising from its judgment. In order not to leave the CAA without funds, which would have meant flight safety might have been compromised, the Constitutional Court had clearly indicated in its judgment that the CAA could enter into contractual relationships with the aviation companies concerned, which would thus be able to negotiate conditions freely.

It was for the very same reasons as those espoused by the Constitutional Court in its judgment that the Georgian President had issued Decree no. 364 on 25 July 2003 (see paragraph 82 below). That decree, as well as section 13(d) of the Public-Law Entities Act, gave a direct right to the applicant, as chairperson of the CAA, to collect duties by entering into contractual relations with companies working in civil aviation. Furthermore, the new law, required as a result of the judgment of the Constitutional Court of 10 January 2003, had been passed on 14 August 2003 and had entered into force on 15 September 2003. The applicant had issued Order no. 1 in compliance with that law and had subsequently submitted it to the Ministry of Justice for registration. The Ministry of Justice had registered it on 27 November 2003, approving its retrospective application as of 1 October 2003 under sections 33(4) and 54 of the Law on Normative Legal Acts, on the grounds that all the companies covered by the Order had the necessary legal identification numbers and codes. The applicant pointed out that if it had been unlawful to apply the order at issue retrospectively, the Ministry of Justice would have informed the CAA and instructed it to make the necessary amendments, in accordance with the law. The applicant concluded that the actions he had taken in the exercise of his official duties had not been contrary to the judgment of the Constitutional Court in question, or to any other legal provisions applicable at the material time, and thus could not qualify as abuse of power.

On 8 August 2005 the Tbilisi City Court found the applicant guilty of two of the three episodes of abuse of power which the GPO had accused him of (see paragraph 27 above), but acquitted him of one. The one he was acquitted of was with respect to the CAA collecting “an annual registration fee for transport activities” from eight private companies working in civil aviation, including Sakaeronavigatsia and Tbilisi International Airport, between 1 April and 1 October 2003. The court established that the relevant amounts corresponded to debts owed to the CAA by those companies for the period prior to 1 April 2003.

As for the other two episodes, the Tbilisi City Court considered that the applicant had unlawfully entered into the contracts of 28 March and 13 August 2003 with Sakaeronavigatsia, Tbilisi International Airport and AirBPGeorgia, in breach of the Constitutional Court’s judgment of 10 January 2003. Thus, between 1 April and 1 October 2003, the CAA had unlawfully received the sums of GEL 425,000 (some EUR 208,000), 180,000 (around EUR 83,000) and 25,000 (some EUR 11,000) respectively, from which the applicant had unlawfully paid his own salary and the salaries of his employees, and had financed the CAA’s business trip and management expenses. Furthermore, the applicant was found guilty of unlawfully issuing Order no. 1, to which the applicant had moreover given retrospective effect, which served as the basis for collecting levies between 1 October 2003 and 13 March 2004 from twenty-two companies, amounting to GEL 281,344.23 (some EUR 133,000) which had been spent in the same, unlawful way.

The Tbilisi City Court stated that it disagreed with the applicant’s argument that the Constitutional Court judgment of 10 January 2003 had given him the right to enter into contracts with the companies concerned and that the CAA would have been unable to continue to operate if those contracts not been entered into. However, the court did not give any reasons to explain its position.

As to the audit report prepared by the accountancy expert on the CAA’s activities, the Tbilisi City Court restricted itself to noting that the expert in question was from the Ministry of the Interior and that he had confirmed his conclusions when he had been questioned during the trial. The court gave no explanation for why it did not take the expert’s statements into consideration.

The judgment of 8 August 2005 found the applicant guilty of the crime provided for in Article 332 §§ 1 and 3 (a) of the Criminal Code and sentenced him to five years’ imprisonment. He was also banned from holding public office for two years.

The applicant appealed, stating that the Tbilisi City Court had not established which of the impugned actions had breached the notion of public service requirements, within the meaning of Article 332 § 1 of the Criminal Code, what exactly the criminal offence had consisted of, what had been the reasons for it, and what its objectives and consequences had been. Furthermore, the Tbilisi City Court had not explained how his actions had damaged the interests of twenty-two companies, when none of those companies had expressed any interest in joining the criminal proceedings as civil parties or had ever initiated any separate civil proceedings against the CAA.

When questioned by the Tbilisi Court of Appeal, representatives of fourteen of the companies concerned stated that they had incurred no financial damage as a result of having paid the fees for the services provided by the CAA, either on the basis of the relevant contracts or Order no. 1. Moreover, the cost of the amounts paid had not been borne by the companies, since it had been included in the price of airplane tickets sold to the end consumer, who was airline passengers (see also the accountancy expert’s report cited at paragraphs 22-26 above). By a judgment of 30 December 2005 the Tbilisi Court of Appeal acquitted the applicant in respect of the charge relating to the aforementioned fourteen companies. It upheld the judgment of the lower court as to the remaining charges, notably the collection by the CAA of fees for services from the remaining eight companies on the basis of either contracts or Order no. 1. The applicant’s prison sentence was amended and set at four years.

The applicant appealed on points of law, arguing that his case had been examined superficially and that, amongst other things, the accountancy expert’s report of 20 July 2004 (see paragraphs 22-26 above) had not been taken into consideration. The applicant complained that in examining the question of the existence of a loss to the aforementioned eight companies, the Court of Appeal had failed to consider the case from the same point of view concerning the other companies, especially Sakaeronavigatsia, which had allegedly incurred the biggest loss. In fact, according to the applicant, the Court of Appeal had completely failed to consider that part of the case or the accountancy expert’s view that Sakaeronavigatsia could not have incurred a loss. The applicant concluded that the reasoning given by the lower court to prove his guilt had been manifestly insufficient and arbitrary.

On 14 September 2006 the Supreme Court of Georgia dismissed the appeal on points of law by the applicant, stating that by continuing to charge the fees to the various private companies after 1 April 2003 the applicant had misapplied the judgment of the Constitutional Court of 10 January 2003 and had thus committed an abuse of power, infringing the rights of various legal entities and the general legal interests of the State.

After serving his sentence in full, the applicant was released on 14 March 2008.

In December 2003, well before the applicant had been placed under investigation and arrested, and shortly after the Rose Revolution that led to the resignation of President Shevardnadze (see Georgian Labour Party v. Georgia, no. 9103/04, §§ 11-13, ECHR 2008), Mr M. Saakashvili, who did not hold any State office at the time but was campaigning as a candidate to be elected president, addressed representatives of Georgian companies in Tbilisi’s sports stadium. He stated that the objectives of the abolition of the old, corrupt and unfair regime had not involved simply replacing one political clan with another. In particular, he promised that nepotism, irrespective of where it came from, whether from representatives of the old or the new regime, would no longer be the rule. Amongst other things, he stated in that regard:

“I heard more news on the television yesterday: it would appear that Zurab Ts ..., the chairman of a committee of the former parliament, took his son and had him appointed deputy chairman of the Civil Aviation Authority! It is now 3.35. I will give [the applicant]: either he gets rid of Ts ..., or [the applicant] himself goes to jail! ... It is said that we are instructing the prosecution authorities to arrest officials of the old regime but that this seems like a breach of their human rights! Yes, I confirm, all those who should be arrested will be jailed. They only began to remember human rights when their own interests were threatened ... Where does the money come from [for a former governor] to hire lawyers to defend himself and ... live in a fivestar hotel in Moscow, when one night there costs the same as your pensions several times over...? Is not your money, Georgia’s money, being taken from your pockets? ... “

According to the applicant, the events which came after the speech of Mr Saakashvili, who was elected President of Georgia in January 2004, were as follows: the son of Zurab Ts. immediately resigned as deputy chairman of the CAA, the applicant was placed under investigation in March 2004 on the aforementioned charges and the same Zurab Ts. was reelected to parliament from Mr Saakashvili’s presidential party list during the parliamentary elections of March 2004.


CASE OF VASILICIUC v. THE REPUBLIC OF MOLDOVA

Remainder inadmissible (Article 35-3-a - Manifestly ill-founded);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković

The applicant was born in 1959 and lives in Athens, Greece.

Because of the difficult economic situation in Moldova, in 1997 the applicant left that State for Greece where she found employment; she was engaged by a family to take care of a disabled child. She used to visit Moldova on holiday every two to three years and she kept an apartment in Causeni.

On 15 September 2008, after a visit to Moldova, the applicant was returning to Greece from Chisinau Airport when she was stopped by customs officers because she had on her twenty-nine pieces of non-identical jewellery such as rings, bracelets, necklaces and pendants. The applicant was wearing seven pieces of the jewellery and the rest were in a jewellery box in her handbag. Since the applicant had failed to declare the jewellery, she was taken to the airport police station. There she stated that she had not been attempting to smuggle the jewellery through customs and that she had honestly believed that no declaration was necessary for goods whose value was less than 5,000 euros (EUR). She also submitted that the jewellery in question had been brought to Moldova from Greece. She was informed that she only had the right to take five pieces of non-identical jewellery out of country, no matter their value. She also submitted that she had not been asked to declare anything by the customs officers. The police drew up a report according to which the applicant had in her possession twenty-nine pieces of jewellery made of precious metals and stones with a total value of 55,582 Moldovan lei (MDL – approximately EUR 3,284). All the jewellery, including the pieces allowed by law to be transported over the border, was seized by the police.

The applicant missed her flight and spent two weeks in Moldova during which time she went to the police station on several occasions. There she made an official declaration and signed a formal undertaking to appear before the prosecuting authorities and courts when necessary. She informed the authorities about her intention to leave the country and obtained their permission. She also gave her Greek address and telephone number.

On 1 October 2008 the applicant returned to Greece because she could no longer be absent from work. She had no difficulties in leaving the country through the same airport.

On 7 October 2008 the Chişinău airport police formally initiated criminal proceedings against the applicant for attempted smuggling of jewellery. The offence was considered to be a minor one (infracțiune ușoară) with a maximum penalty of 6,000 Moldovan lei (approximately EUR 430) or 240 hours community service or imprisonment of two years. The applicant was not aware of the initiation of the criminal proceedings against her.

Subsequently, the applicant was summoned to appear before the investigating authorities via her Moldovan address. Since she did not appear, the prosecutors contacted her adult son and a relative of hers and asked them about the applicant’s whereabouts. Both of them stated that the applicant was in Greece and that they did not know when she intended to return to Moldova. It does not appear from the material in the case-file that the prosecutors asked the applicant’s relatives for her contact information in Greece or to inform her that she had to appear before them.

On 16 June 2009 the prosecutor’s office applied to the Botanica District Court for a detention order in respect of the applicant. The reason relied upon by the prosecutors was that the applicant had absconded from prosecution when she left the country on 1 October 2008, in spite of her having given a written undertaking to appear when summoned. A public defender was appointed to represent the applicant. On 19 June 2009 the Botanica District Court ordered the applicant’s detention for a period of fifteen days. The reason relied upon by the court was that the applicant had failed to appear before the investigating authorities when summoned. The publicly appointed lawyer did not challenge that decision.

The applicant learned of the detention order against her in the summer of 2010 and employed a Moldovan lawyer to challenge it. On an unspecified date the applicant’s representative lodged a habeas corpus application with the Botanica District Court in which it was argued, inter alia, that the applicant had not been aware of the criminal proceedings against her, that she had never been summoned to appear before the prosecutor’s office and that she had not been informed that she could not leave the country. She asked the court to revoke the detention order and, in exchange, promised to appear before the court when necessary and to surrender her passport.

On 18 September 2010 the Botanica District Court rejected the applicant’s habeas corpus application relying, inter alia, on the fact that the applicant had formally undertaken to appear before the prosecuting authorities and courts and later failed to abide by the undertaking. The applicant’s representative appealed, arguing, inter alia, that according to the law the undertaking had not been valid because no criminal proceedings had been formally instituted at that time. The appeal was dismissed by the Chişinău Court of Appeal on 30 September 2010.

In July 2011, after the communication of the present case to the Government, the Moldovan authorities applied to Interpol for an international arrest warrant for the applicant. As a result, the applicant was arrested in Greece and held in detention pending extradition proceedings for a period of twenty-three days. In the documents ordering the applicant’s arrest and detention, the Greek authorities made specific reference to the detention order issued by the Botanica District Court on 19 June 2009 (see paragraph 12 above). The extradition proceedings ended on 21 September 2011 when the Athens Court of Appeal rejected the Moldovan authorities’ extradition request and ordered the applicant’s release from detention. The Athens Court of Appeal found that according to Article 5 of the European Convention on Extradition, persons suspected of offences in connection with taxes, duties and customs could be extradited only if the Contracting Parties have so decided in respect of any such offence or category of offences. In the absence of any such agreement between Moldova and Greece, the extradition request could not be upheld. It appears that the applicant has not returned to Moldova ever since.


Remainder inadmissible (Article 35-3 - Manifestly ill-founded);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Yonko Grozev

The applicant organisation, SIA AKKA/LAA (SIA “Autortiesību un komunicēšanās konsultāciju aģentūra/Latvijas Autoru apvienība” –Copyright and Communication Consulting Agency ltd./Latvian Authors Association) is a non-profit organisation founded in Riga by a separate nonprofit organisation, the Latvian Authors Association, whose members are various Latvian artists.

At the end of the 1990s the applicant organisation, acting as a representative of approximately 2000 domestic and two million international authors who had entrusted the applicant organisation to manage the copyright of their musical works, was concluding licence agreements with several broadcasters in Latvia. From 1998 to 1999, after the expiry of the previous licence agreements, the applicant organisation and certain broadcasting organisations in Latvia could not reach an agreement on the terms of the future licence agreements, especially with regard to the remuneration to be paid for the broadcasting of music. As a result some broadcasting organisations continued to use the protected musical works without a written agreement, either without paying any remuneration or paying the amount the broadcasting organisations unilaterally considered equitable. In 2002 the applicant organisation instituted civil proceedings against several broadcasters operating in Latvia.

In July 2002 the applicant organisation lodged a claim against a private radio station, Radio SWH, and requested that the Riga Regional Court, acting as a first-instance court, recognise that by broadcasting protected musical works without a valid licence agreement between 1 January 1999 and 31 December 2001, the defendant had violated economic interests of the authors represented by the applicant organisation. The applicant organisation further asked that the court award compensation for unauthorised use of musical works. By relying on the authors’ exclusive rights to control the use of their musical works, the applicant organisation asked the court to apply an injunction precluding the defendant from using the authors’ works before a valid licence agreement between the parties had come into effect.

The defendant lodged a counterclaim arguing that the applicant organisation had abused its dominant position and had fixed an unreasonably high royalty rate, which was six times the rate which had been applicable for the period from 1995 to 1998. They asked the court to order the applicant organisation to conclude a licence agreement with the defendant organisation and to lay down an equitable royalty rate.

During the first-instance court’s hearing, the applicant organisation admitted that the parties had a dispute over the royalty rate in the draft licence agreement negotiated by the parties, but that the court was precluded under section 41 of the Copyright Law from setting the rate as long as there was no licence agreement concluded between the parties (see paragraph 26 below).

On 16 January 2003 the first-instance court partly upheld the claim and fully upheld the counterclaim. It established that between 1 January 1999 and 31 December 2001 the defendant had infringed the authors’ rights by broadcasting the protected works without authorisation, contrary to the provisions of the Copyright Law. The first-instance court ordered the defendant to pay to the applicant organisation compensation for the above period in the amount of 78,000 Latvian lats (LVL, equivalent to 111,500 euros (EUR)), which was 1.5% of the defendant’s net turnover over this period.

Furthermore, the first-instance court ordered the applicant organisation to conclude a licence agreement with the defendant for the next three-year period with a royalty rate set at 2% of the defendant’s monthly net turnover (ikmēneša neto apgrozījums).

Lastly, by relying on the preamble of the WIPO Copyright Treaty and Articles 11 and 11bis of the Berne Convention (see paragraph 37 below), the first-instance court dismissed the applicant organisation’s application to have an injunction granted to prohibit the defendant from broadcasting works of the rightsholders represented by the applicant organisation. By referring to the testimonies of two authors represented by the applicant organisation, the first-instance court concluded that the authors themselves were interested in their musical works being publicly broadcasted. An interdiction on broadcasting of the musical works would infringe the authors’ exclusive rights to have their work reproduced, as well as it would negatively affect the interests of the society to listen to music.

On 23 October 2003 the Civil Cases Chamber of the Supreme Court, acting as an appellate court, upheld the part of the first-instance judgment concerning the compensation for copyright infringement and the injunction.

On the issue of ordering the conclusion of a licence agreement, the appellate court observed that both parties had expressed their intention to enter into a such an agreement, as attested by a draft licence agreement of 7 October 2003 in which the parties had agreed on certain terms and conditions such as the duration of the licence and the income from which royalties should be calculated. The appellate court noted that it was partly due to the applicant organisation’s inconsistent negotiating that a licence agreement could not be concluded. The appellate court accordingly recognised that the licence agreement was to be considered concluded in the wording as agreed by the parties on 7 October 2003. On the question of remuneration, the appellate court established that in the negotiation process the applicant organisation had changed the royalty rate from 6% to 4% and then to 3.5%, whereas the defendant had insisted on 1.6% of the income from which royalties should be calculated. The appellate court took note of the characteristics of the defendant’s activities and concluded that an equitable remuneration would be 2% of the income from which, as agreed by the parties, the royalties should be calculated.

On 11 February 2004, following an appeal on points of law, the Senate of the Supreme Court upheld the appellate court’s findings that after the expiry of the earlier licence agreement on 31 December 1998 the de facto contractual relationship between the parties had continued mainly owing to the fact that the applicant organisation had failed to reach an agreement with the defendant on the terms of the licence agreement. The Senate of the Supreme Court further observed that the parties did not contest that the authors had a right to receive equitable remuneration, but that to that day the parties had not reached an agreement on the rate of the royalty payments. Given that there was no other authority responsible to decide on this matter, the Senate of the Supreme Court concluded that pursuant to Article 11bis of the Berne Convention and section 5 of the Civil Law, it was within the court’s competence to set the royalty rate. The Senate of the Supreme Court also dismissed the allegations that the appellate court’s judgment had infringed the intellectual property rights protected under the Constitution of the Republic of Latvia.

In their claim against Latvijas Radio, a state-owned limited liability company, the applicant organisation asked the Riga Regional Court, acting as a first-instance court, to find that by broadcasting the rightsholders’ musical works without a valid licence agreement between 1 January 2000 and 31 December 2001, the defendant had violated economic interests of the authors represented by the applicant organisation. The applicant organisation further asked that the court award compensation for unauthorised use of musical works. By relying on the authors’ exclusive rights to control the use of their musical works, the applicant organisation asked the court to apply an injunction precluding the defendant from using the authors’ works before a valid licence agreement between the parties had come into effect.

By lodging a counterclaim the defendant in essence asked the court to recognise that in the disputed period the parties had a de facto contractual relationship.

On 2 April 2003 the Riga Regional Court dismissed the applicant organisation’s claim and upheld the counterclaim. The court established that even though the licence agreement concluded between the parties with the royalty rate set at 3.2% of the defendant’s annual income had expired in 1999, the applicant organisation had continued receiving royalty payments from the defendant, which continued to pay at a lower rate. Given that the applicant organisation had not referred to objections to the broadcasting of the musical works, the existence of a de facto contractual relationship between the parties had been proven. Relying on section 41 of the Copyright Law the court set the royalty rate from 2000 to 2001 at 1.57% of the defendant’s annual income.

On 26 November 2003 the Civil Cases Chamber of the Supreme Court, acting as an appellate court, diverted from the first-instance court’s findings and recognised that the defendant had infringed copyright by broadcasting the musical works over a prolonged period of time without a valid written licence agreement. It awarded the applicant organisation compensation in the amount of LVL 100,000 (EUR 143,000), which exceeded the amount the defendant had paid under the expired licence agreement. It considered that it would be fruitless to issue an injunction prohibiting the defendant from broadcasting the works. The appellate court observed that in principle the parties had expressed their interest in concluding a licence agreement but that before and during the court proceedings the parties had not agreed on the equitable royalty rate. It also pointed to the applicant organisation’s responsibility in failing to reach an agreement in the negotiation of a new licence. As a result, over a prolonged period of time the authors’ rights had been unprotected. As the parties had not asked the court to decide on the exact terms and conditions of a licence agreement, the appellate court decided to impose on the parties a general obligation to conclude a licence agreement by 1 March 2004. Given that the parties had been unable to agree on a royalty rate, the appellate court set the rate at 3% of the defendant’s net turnover. In reaching this conclusion the appellate court took into consideration such elements as, inter alia, the royalty rate set in other court proceedings and the existing practice in certain other EU member States.

The applicant organisation appealed on points of law arguing that by, inter alia, ordering the parties to conclude a licence agreement and setting its terms, the court had overstepped its powers and acted in breach of section 11bis of the Berne Convention and section 15 of the Copyright Law.

On 17 March 2004 the Senate partly upheld the lower court’s judgment with similar reasoning as in the first set of proceedings.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

Alvina Gyulumyan;Johannes Silvis;Josep Casadevall;Luis López Guerra

The applicant was born in 1960 and lives in Roman.

On 29 September 2011 the applicant was arrested after criminal proceedings had been opened against him for bribe taking. On the same date he was detained in Bacău Police Department’s detention facility.

On 29 November 2011 he was moved to Bacău Prison.

On 20 June 2012 he was released. The criminal proceedings opened against him are still pending before the domestic courts.

In Bacău Police Department’s detention facility and Bacău Prison the applicant had to share a cell with smokers, even though he was a nonsmoker and was suffering from a heart condition. He was unable to rest because the other detainees would smoke continuously from 7 a.m. to 2 p.m., and the cell would be covered by thick smoke.

The cell did not have enough furniture, and lacked coat hangers, shelves and cupboards. Clothes had to be stored on the floor, under beds, where no cleaning was carried out. The bathrooms lacked shelves and privacy, as the washing area and toilet facilities were not separate. In addition, the cell was damp, measured 15 sq. m., had a volume of 50 cubic metres, contained six beds, and was occupied by ten detainees. Cleaning and dehumidification materials were provided by his family, and in the absence of any action on the part of the prison authorities, he and the other detainees had to clean the cell themselves. The cell was not heated during the cold season, and as a result of the extreme cold the applicant had to ask his family to provide him with warmer bed linen. Also, the cell was infested with fleas, lice, bed bugs and mosquitoes, but the detainees were not allowed to disinfect it, even at their own expense.

The detention facilities did not provide detainees with any areas for washing, drying or cleaning their clothes. He was forced to wear dirty clothes, or if he did wash them, he had to wear them damp.

The bed linen provided by the authorities was unusable, was not suitable for the time of year and was not changed during the entire time he was detained.

Warm water was available twice a week for two hours each time therefore not all detainees could wash. He was unable to shave on a daily basis. Detainees did not have access to a barber, toiletries were not provided by the authorities and he had to purchase shaving products at his own expense.

The food was poor, insufficient and served in unhygienic conditions by detainees not wearing the appropriate equipment for serving food. The cutlery and plates were rusty and dirty, and the cell did not have a table and chairs for detainees to be able to sit down and eat their meal.

He was taken out of his cell for a walk only twice a week for thirty minutes; between ten or twenty inmates would be in the prison courtyard at a time. The courtyard was covered by a metal mesh, measured 25 sq. m, had no bathroom facilities and did not receive any sunlight.

The applicant was transported to and from court and was held in the courthouse cells with smokers.

In Bacău Police Department’s detention facility the applicant was detained in a cell which measured 12.82 sq. m and contained four beds. The cell had central heating and was ventilated. The sanitary facilities were outside the cell and were accessible to everyone twenty-four hours a day. Detainees had access to a shower, a sink, and a toilet that was separate from the rest of the bathroom. They were allowed to shower and do their laundry twice a week.

In Bacău Prison the applicant was detained in six different cells. Five of them were in the infirmary.

From 29 November to 5 December 2011 the applicant was detained in a cell which measured 26.09 sq. m and contained twenty-three beds. From 23 February to 7 May 2012 he was detained in a cell which measured 33.05 sq. m and contained eight beds. From 8 to 14 May 2012 he was detained in a cell which measured 26.61 sq. m and contained nine beds. From 15 to 28 May 2012 he was detained in a cell which measured 32.09 sq. m and contained six beds.

All the detention cells had central heating, sanitary facilities, windows, electricity and were furnished. The beds had mattresses, pillows, bed linen and blankets provided by the detention facility. Detainees were also allowed to receive bed linen from their families.

Detainees had unlimited access to cold water. They also had access to warm water every day, based on a pre-approved rota.

The cells were heated daily during the cold season from 5 to 9.30 a.m. and 7 to 11 p.m.

They were disinfected three times a year or whenever needed, by specialist contractors. In addition, detainees were provided with cleaning materials and had a statutory duty to clean their cells. They were also provided with toiletries for their personal hygiene. Starting from December 2011 each individual had to sign for the toiletries they were given.

The detention facilities had cells assigned exclusively to nonsmoking detainees.

Without providing supporting documents, the Government submitted to the Court that when the applicant had been transferred to Bacău Prison, he had declared that he was a smoker. In addition, on 6 and 16 December 2011 and 8 May 2012 he had purchased cigarettes, and on 13 December 2011 he had bought lighters.

The applicant was transferred only to courthouse cells and not to any other detention facilities. The vehicles had windows and heating.

As a general rule, detainees were forbidden from smoking during transfers. Smokers were separated from non-smokers in the courthouse cells.

Between 14 December 2011 and 20 June 2012 the applicant was transferred sixteen times to and from court, for distances of 2 and 62 kilometers.


CASE OF ROMAN CATHOLIC ARCHDIOCESE OF VRHBOSNA v. BOSNIA AND HERZEGOVINA

Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

The applicant is a Roman Catholic community in Bosnia and Herzegovina, based in Sarajevo.

By decision of 9 May 2003, which became final and binding on 4 September 2003, the Human Rights Chamber for Bosnia and Herzegovina (“the Chamber”) found that the Federation of Bosnia and Herzegovina (an entity of Bosnia and Herzegovina) had discriminated against the applicant in its enjoyment of the right to freedom of religion guaranteed by Article 9 of the Convention. In order to remedy the situation it ordered the Federation of Bosnia and Herzegovina to ensure the relocation of public schools housed in the Archdiocese High School building in Travnik, and to reinstate the applicant in the premises within one year. The Chamber rejected a request by the applicant for pecuniary and non-pecuniary damages.

By an agreement of 21 May 2004, the Federation of Bosnia and Herzegovina undertook to reinstate the applicant in the impugned premises by 1 July 2006. Shortly thereafter, the Travnik Municipal Council adopted the implementing decisions, and also one of the public schools was moved from the premises.

On 23 June 2010 the Travnik Municipal Council issued a writ of execution (rješenje o izvršenju). On 5 October 2011 the Travnik Cantonal Court quashed that decision and remitted the case for reconsideration. On 17 October 2011 the Travnik Municipal Court held that it lacked jurisdiction to deal with the case. On 16 May 2012 the Travnik Cantonal Court quashed that decision and remitted the case for reconsideration. On 3 July 2012 the Travnik Municipal Court held that the decisions of the Chamber were not subject to enforcement proceedings. On 12 July 2012 the applicant lodged an appeal against that decision. At the date of the latest information available to the Court (28 August 2017), the Travnik Cantonal Court had not yet ruled on the matter.

On 30 October 2012 the Constitutional Court of Bosnia and Herzegovina determined that the Federation of Bosnia and Herzegovina had not yet fully enforced the decision of 9 May 2003.

On 17 February 2017 the applicant initiated civil proceedings against the public school remaining in its premises, requesting its relocation, as well as damages for the use of the premises for the period between 1 February 2014 and 1 June 2017.

On 14 July 2017 the Municipal Court in Travnik rendered a judgment in the applicant’s favour, rewarding in full its claims finally specified in the proceedings, namely 270,360 convertible marks (BAM) for pecuniary damages and 6,713 BAM for costs and expenses. The Municipal Court also ordered the respondent to vacate the applicant’s premises within 30 days from receiving the judgment. On 20 December 2017 the Cantonal Court in Novi Travnik upheld the judgment of the first-instance court. At the date of the latest information available to the Court (20 February 2018), the Central Bosnia Canton submitted a revision petition to the Supreme Court of the Federation of Bosnia and Herzegovina against the final judgment in these proceedings. It also appears that the public school has still not been relocated.


STEINER AND STEINER-FASSLER v. SWITZERLAND

András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens

The case originated in an application (no. 18600/13) against the Swiss Confederation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Swiss nationals, Mr Edwin Steiner and Mrs Ottilia SteinerFässler (“the applicants”), on 11 March 2013.

The applicants were represented by Mr L. Stamm, a lawyer practising in Baden. The Swiss Government (“the Government”) were represented by their Deputy Agent, Mr A. Scheidegger, of the Federal Office of Justice.

The applicants alleged a violation of Article 6 as documents relating to the construction of both a paved sidewalk and a gravel walk along the river bank adjacent to their property in 1984 were not made accessible to them. Furthermore, they complained that the new route of the path across their property was contrary to Article 8.

On 29 May 2013 the application was communicated to the Government.

The applicants are Swiss nationals, who were born in 1938 and 1944 respectively, and live in Alpthal in the canton of Schwyz.

In the canton of Schwyz, the Way of St James (Jakobsweg), a network of medieval pilgrimage routes leading through several European countries to Santiago de Compostela in the northwest of Spain, runs from Einsiedeln via Alpthal to the city of Schwyz.

In the past years, the approximately 1.5 kilometre long route between Chriegmatt and Gämschtobelbach ran along the main road on a paved sidewalk on the left side of the river Alp.

In July 1984, heavy storms caused severe damages in the region. The banks of the river Alp had to be lined and the surroundings to be reconstructed. Considered to be urgency measures these works were done without any formal authorisation procedure.

In 2003, the authorities of the canton of Schwyz intimated their intention to move this route of the Way of St James to the right side of the river Alp, on a forest path intersecting the applicants’ property for 7 metres (on the south-western side) and 17 metres (on the north-western part) respectively. Moreover, the forest road leads through a low-level moor of national importance (inventory no. 3154), which is constitutionally protected (see paragraph 17 below).

On 1 July 2006, the applicants, their children, representatives of the district council and the district administration, as well as the director of the cantonal office for forests, hunting and fishing, inspected the site. The applicants declared that they would not tolerate the new path through their property, owing to several unfriendly confrontations with hikers and the littering by hikers and their dogs. On 3 July 2006, the director of the cantonal office for forests, hunting and fishing, who was hierarchically subordinate to the department of economy of the canton of Schwyz, signed a memorandum (Aktennotiz). This memorandum stated that the relevant legislation would allow the compulsory acquisition of the easement (Wegrecht), if it could not be acquired on a voluntary basis by the canton; however, taking into account the applicants’ health and well-being, renunciation was declared and it was decided not to enforce the easement (“Auf die rechtliche Durchsetzung des Wegrechts [...] wird verzichtet.”). In return, the applicants declared that they would tolerate “until further notice” the Iron Bike Race, which takes place once a year, through their property.

By the beginning of 2009, the department of environment of the canton of Schwyz decided to transfer the Way of St James to the right side of the river Alp. The explanatory report of the land use zoning plan, published for public consultation between 29 October and 29 November 2010, stated that it was difficult to understand why the pilgrims and hikers should walk on a not very appealing paved sidewalk when there was a shady and idyllic forest gravel walk on the other side of the river. The applicants’ objection was dismissed by the cantonal department of environment on 19 January 2011.

The department explained that throughout recent years, the municipality of Alpthal, the district of Schwyz and the Swiss Association for Hiking Trails had tried in vain to find an adequate solution with the Steiner-Fässler family. Recently, the applicants had explicitly refused further talks with regard to a friendly settlement. The decision held, inter alia, that the two portions of land where the path intersected the property of the applicants were classified as forest areas; these are, by law, publicly accessible (see paragraph 18 below). Furthermore, the memorandum of 3 July 2006 had no binding force for the department of environment: the assurance had been issued by an authority which did not have competence and, after the assurance, the applicants had not made any irreversible disposition in respect to their property. Therefore, the principle of good faith had not been violated (see paragraph 16 below).

On 31 May 2011, the council of the canton of Schwyz (the cantonal government) dismissed the applicants’ appeal. On reviewing the facts, the council observed that the applicants’ house was 70 metres away from the gravel walk and only two small portions of the land of the applicants were intersected by the path. Therefore, the council found the interference in the applicants’ property to be marginal and tolerable. It admitted that the memorandum of 3 July 2006 might constitute a basis for legitimate expectations. However, the council added that owing to the preponderant public interest in a “safe and appealing” Way of St James, the legitimate expectations of the applicants were not protected.

On 21 September 2011, the administrative court of the canton of Schwyz dismissed the applicants’ appeal, basing its decision on the same grounds as the administrative authority. The applicants’ request to have access to, inter alia, the construction permit of 1984 demonstrating that the original Way of St James had historically always run on the left side of the river Alp and that the forest path on the right side of the river was constructed in 1984 was not granted. The administrative court explained that owing to severe storms in 1984 the banks of the river Alp had had to be lined.

In order to find out the exact historical route of the Way of St James, the court made several inquiries. On 10 August 2011, it asked the department of environment of the canton of Schwyz for further information. The department, however, was not able to clarify the situation. The department submitted that the relocation of the path on the sidewalk was being done without any formal procedure. According to a letter of the office for cultural landscapes of 21 May 2005, it could be presumed that the pilgrims used to walk on the right side of the river Alp (i.e. on the forest path). Based on that evidence, the court observed that the situation remained unclear. It further noted that the severe storms in 1984 had required a swift reconstruction of the affected area, including the lining of the river banks. In the present case, the court held that the exact historical route of the Way of St James was not decisive since, after the storms, no historical substance was left and the path could be relocated to the other side of the river Alp without any loss in quality. The court concluded that after all the judicial fact-finding it had undertaken the request of the applicants was not pertinent and had therefore to be refused.

By a judgment of 22 August 2012, notified to the parties on 11 September 2012, the Federal Supreme Court dismissed the applicants’ appeal. The request of the applicants to receive the construction permit of 1984 was not granted for lack of pertinence to the case. Furthermore, the Federal Supreme Court found that, according to the Federal Hiking Trail Act, historical trails are only to be included in the network of hiking trails if it is possible to do so (“nach Möglichkeit”; see paragraph 19 below).

With regard to the memorandum of 3 July 2006, the court held that regardless of whether the applicants should have recognised the lack of competence of the director of the cantonal office for forests, hunting and fishing to issue an assurance, the agreement between the applicants and the authorities could be freely revoked (for example, the memorandum explicitly set out that the applicants were willing to tolerate “until further notice” the Iron Bike Race through their property). Furthermore, the Federal Supreme Court held that the applicants had not suffered any disadvantage from relying upon the memorandum.

Article 9 of the Federal Constitution of the Swiss Confederation of 18 April 1999 (Classified Compilation of Federal Laws no. 101) protects the individual against arbitrary conduct and contains the principle of good faith. It reads:

“Everyone has the right to be treated by the state authorities in good faith (...).”

According to the case law of the Federal Supreme Court (see, inter alia, the leading case 129 I 161, 170 [X. v. City of Chur]), Article 9 of the Federal Constitution confers on every person the right to rely in good faith on assurances issued by authorities, if four conditions are met:

(A) a basis for good faith (Vertrauensgrundlage), i.e. a conduct of the administration (for example an assurance) raising a certain expectation in the individual;

(B) a legitimate expectation (berechtigtes Vertrauen), i.e. that the person who claims a right from the protection of good faith was entitled to trust on that basis, whereby the assurance of the authority must not be abstract, but related to a given issue;

(C) a disposition made in good faith (Vertrauensbetätigung), i.e. that the concerned person has made, based on the conduct of the administration, a disadvantageous disposition, which cannot be undone; and

(D) the absence of preponderant public interests.

Article 78(5) of the Federal Constitution reads as follows:

“Moors and wetlands of special beauty and national importance shall be preserved. No constructions may be erected on them and no changes may be made to the land, except for the construction of facilities that serve the protection of the moors or wetlands or their continued use for agricultural purposes.”

Article 699 of the Swiss Civil Code of 10 December 1907 (Classified Compilation of Federal Laws no. 210) reads as follows:

“1 Any person has the right to enter woodlands and meadows and to gather wild berries, funghi and the like to the extent permitted by local custom except where the competent authority enacts specific limited prohibitions in the interests of conservation.

2 Cantons may enact more detailed regulations on access to land owned by others for the purposes of hunting and fishing.”

Articles 3 and 7 of the Federal Hiking Trails Act of 4 October 1985 (Classified Compilation of Federal Laws no. 704) stipulate:

1 Hiking trails shall essentially serve recreational purposes and shall generally lie outside of settlement areas.

2 Hiking trails shall be conveniently connected between each other. Other paths, parts of sidewalks and less frequented roads may serve as coupling links. Historical trails are if possible to be included [into the network of hiking trails].

3 The network of hiking trails shall especially encompass areas suitable for recreation, quaint landscapes (scenic views, river borders etc.), cultural attractions, public transport stops as well as touristic facilities.”

1 (...)

2 Hiking trails are to be replaced in particular:

a.-c. (...)

d. if their pavement is – on longer distances – unsuitable for pedestrians. (...)”

Article 6 of the Federal Hiking Trails Ordinance of 26 November 1986 (Classified Compilation of Federal Laws no. 704.1) defines which pavements are not suitable for hiking trails:

“Unsuitable in the sense of Article 7(2)d of the Federal Hiking Trail Act are namely all pavements consisting of bitumen, tar or concrete.”

Article 13(3) of the Ordinance of the Canton of Schwyz on the Federal Hiking Trails Act of 18 May 2004 (Classified Compilation of the Laws of the Canton of Schwyz no. 443.210) reads as follows:

“Rights can be expropriated according to the cantonal expropriation provisions if they cannot be acquired free-hand.”