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

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

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

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

On DATE an investigating judge of ORG ( Županijski sud u GPE ) opened an investigation in respect of the applicant and another person in connection with a suspicion of economic crime .

The applicant appealed against that decision on DATE , arguing that it had not been sufficiently established that he had committed the alleged offences at issue .

On DATE a CARDINAL - judge panel of ORG , composed of Judges S.P.L. , PERSON and ORG , dismissed his appeal and upheld the decision of the investigating judge on the grounds that a sufficient degree of reasonable suspicion existed to warrant the opening of an investigation .

Following the investigation , on DATE the ORG Attorney ’s ORG ( Općinsko državno odvjetništvo u GPE ) indicted the applicant and another person in ORG ( PERSON kazneni sud u GPE ) on charges of misfeasance in business .

On DATE the applicant was found guilty as charged and sentenced to CARDINAL months’ imprisonment , suspended for DATE .

The Zagreb Municipal State Attorney ’s ORG challenged this judgment , with an appeal lodged before ORG on DATE , arguing that the sentence was too lenient .

On DATE the applicant also lodged an appeal against the judgment , alleging numerous substantive and procedural flaws .

An appeal hearing before a panel of judges of ORG , composed of Judges S.B.B. , PERSON and PERSON , was held on DATE . The applicant and his lawyer were present at the hearing . They did not object to the composition of the appeal panel .

On DATE the ORG quashed the first - instance judgment and remitted the case on the grounds of insufficient reasoning in the judgment .

Following a retrial , on DATE ORG found the applicant guilty as charged and sentenced him to ten months’ imprisonment , suspended for DATE .

The applicant appealed to ORG on DATE , alleging numerous substantive and procedural flaws in the first - instance judgment .

At an appeal hearing held on CARDINAL DATE before a panel of judges of ORG , composed of Judges S.B.B. , PERSON and PERSON , the applicant and his lawyer reiterated the appeal arguments . They did not object to the composition of the appeal panel .

On DATE ORG dismissed the applicant ’s appeal as ill - founded and upheld the first - instance judgment .

On DATE the applicant lodged a constitutional complaint with ORG ( Ustavni sud PERSON ) complaining , inter alia , that the appeal court had not been impartial owing to the fact that Judges PERSON and PERSON had sat on the panel which had dismissed his appeal , and the same judges had previously upheld the decision to open an investigation against him in connection with the same offences .

On DATE ORG dismissed the applicant ’s constitutional complaint as ill - founded on the grounds that the questions which Judges S.B.B. and PERSON had had to answer when deciding on the opening of an investigation against him differed from those questions which they had examined upon his appeal against the first - instance judgment adopted after a hearing on the merits of the charges held against him . ORG therefore considered that there was nothing to warrant calling into question the impartiality of these particular judges .

The decision of ORG was sent to the applicant ’s representative on DATE .

The relevant provision of LAW ( ORG , ORG nos . DATE , CARDINAL , CARDINAL/CARDINAL ( consolidated text ) , CARDINAL , DATE ( consolidated text ) , CARDINAL and DATE ( consolidated text ) , PERSON ( corrigendum ) , CARDINAL , DATE and CARDINAL/CARDINAL ) reads :

“ In the determination of his rights and obligations or of any criminal charge against him , everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law . ”

At the material time , the relevant provisions of LAW ( Zakon o kaznenom postupku , ORG nos . CARDINAL/CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and DATE ) provided :

“ ( CARDINAL ) A judge or lay judge shall be excluded from sitting in a case :

NORP if he has been injured by the offence ;

NORP if he is the spouse , a relative by blood , either lineal , descending or ascending , or collateral to the fourth degree , or related by affinity to the second degree , to the defendant , his counsel , the prosecutor , the injured person , their legal guardian or legal representative ;

NORP if he is a legal guardian , ward , adopted child or adoptive parent , foster parent or foster child of the defendant , his counsel , the prosecutor or the injured person ;

NORP if in the same criminal case he has carried out investigative actions , or has taken part in deciding on an objection to the indictment , or if he has taken part in the proceedings as a prosecutor , defence counsel , legal guardian or legal representative of the injured person or the prosecutor , or if he has testified as a witness or as an expert witness ;

NORP if in the same case he has taken part in adopting the decision of a lower court or in adopting a decision of the same court being challenged by means of an appeal or extraordinary remedy .

( CARDINAL ) A judge or lay judge may be removed or remove himself from a particular case if it has been argued and proved that there are circumstances other than those listed in the previous paragraph which call his impartiality into doubt . ”

“ ( CARDINAL ) A judge or lay judge , as soon as he discovers a ground for exclusion referred to in DATE , paragraph CARDINAL , of this Code , shall discontinue all activity on the case and report the matter to the president of the court , who shall appoint a substitute judge ...

( CARDINAL ) If a judge or lay judge holds that other circumstances exist which would justify his standing down ( Article CARDINAL , paragraph CARDINAL ) , he shall inform the president of the court thereof . ”

“ ( CARDINAL ) Disqualification of a judge may also be requested by CARDINAL of the parties ...

( CARDINAL ) A party may seek the disqualification of a judge of a higher court in the appeal or reply to the appeal [ of the other party ] . In any event , it must be at the latest before the commencement of the hearing of that court .

In the decision no . ORG of CARDINAL DATE ORG examined whether the previous involvement of a judge , who dismissed an appeal against the investigating judge ’s decision opening an investigation , required exclusion of the judge from the subsequent participation in the proceedings under LAW . The relevant part of the decision reads :

“ With regard to the arguments from the constitutional complaint that there has been a fundamental error of the proceedings because a judge participating in the main hearing should have been excluded from the case , ORG notes as follows :

Under Article CARDINAL § CARDINAL(CARDINAL ) of LAW ( Official Gazette nos . PERCENT , CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL and DATE consolidated text ) a judge or a lay judge shall be excluded from sitting in a case if in the same criminal case he has carried out investigative actions , or has taken part in deciding on an objection to the indictment , or if he has taken part in the proceedings as a prosecutor , defence counsel , legal guardian or legal representative of the injured person or the prosecutor , or if he has testified as a witness or as an expert witness .

Under LAW ) of LAW a fundamental procedural error exists if a judge or a lay judge who should have been excluded ( LAW ) sat in the case during the main hearing .

ORG case file shows that the investigation , that is to say investigative actions , had been carried out by Judge PERSON , an investigating judge of ORG , and that Judge PERSON , who presided the trial panel of the first - instance court , as a member of a CARDINAL - judge panel , had decided upon the appeals against the decision of the investigating judge opening the investigation and ordering pre - trial detention ...

In view of the provisions of LAW , and having regard to the above findings ... the [ Constitutional ] Court finds that an alleged fundamental error in the proceedings at issue has not occurred , which could lead to a violation of the constitutional right to a fair trial . ”

In the case no . Kž-CARDINAL/CARDINAL - CARDINAL , on DATE , ORG also explained :

“ ... Article CARDINAL § CARDINAL of the Code of Criminal Procedure concerns instances in which a judge is excluded from sitting in a case if in the same criminal case he has carried out investigative actions , or has taken part in deciding on an objection to the indictment , or if he has taken part in the proceedings as a prosecutor , defence counsel , legal guardian or legal representative of the injured person or the prosecutor , or if he has testified as a witness or as an expert witness .

The reasons referred to in Article CARDINAL § CARDINAL(CARDINAL ) of LAW are exhaustive , and those reasons do not include participation of a judge in the decision on appeal against a decision opening an investigation . ”

On DATE , in case no . Su - IV-CARDINAL/CARDINAL , ORG ( PERSON ) examined on the merits a request for the disqualification of CARDINAL of its judges lodged by the defence under LAW just before the commencement of an appeal hearing before that court .

In case no . PERSON , on DATE ORG examined on the merits a request for the disqualification of a judge submitted just before the commencement of an appeal hearing before that court .


CASE OF LILLO-STENBERG AND SÆTHER v. NORWAY

No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković

The applicants were born in DATE and DATE respectively . They live in GPE . The first applicant is a musician and the second applicant is an actress . They are both known to the public in GPE .

On DATE , the applicants married in a private ceremony which took place outdoors on an islet in the municipality of PERSON in the GPE fjord , QUANTITY south of the capital .

Subsequently , the DATE magazine Se og ORG , hereafter “ the magazine ” , published a CARDINAL - page article about the wedding , accompanied by CARDINAL photographs . CARDINAL photograph showed the bride , her father and her bridesmaids arriving at the islet in a small rowing boat ; another showed the bride being brought to the groom by her father on the islet , surrounded by people ; and yet another photograph showed the bride and the groom returning to the mainland on foot by crossing the lake on stepping stones . In the last photograph , the bride was barefoot with her wedding dress raised above her knees to avoid getting the dress wet . There was also a photograph of a couple and their baby who were wedding guests . Finally , there were CARDINAL old photographs : CARDINAL of the applicants framed in a heart and CARDINAL of the second applicant and the applicants’ young son attending a musical festival DATE .

The article described the ceremony , the applicants and some of the guests . It stated , inter alia , that the ceremony was touching ; that several guests could not hold back their tears when the bride arrived at the islet and a male voice choir starting singing the song “ To live is to love ” ; and that a party took place after the ceremony in the garden of a named guest house . It also stated that the ORG manager had informed the magazine that the applicants did not wish to comment on their wedding .

The applicants brought compensation proceedings against the magazine before ORG ( GPE tingrett ) and invoked , among other things , the right to respect for private life under LAW and LAW . It was not in dispute that the magazine was not invited to the wedding and that the photographs were taken without the applicants’ knowledge QUANTITY from the islet .

By judgment of CARDINAL DATE ORG found for the applicants and ordered the magazine to pay them each MONEY ( ORG ) . In addition , the editor responsible was ordered to pay each applicant ORG CARDINAL,CARDINAL and the journalist and the photographer were ordered to pay each applicant ORG CARDINAL,CARDINAL .

The magazine appealed to ORG ( lagmannsrett ) , which by judgment of DATE upheld the judgment .

The magazine appealed to ORG ( PERSON ) , which by judgment of DATE found against the applicants , by CARDINAL votes to CARDINAL .

Mr Justice U. gave the following reasons , which in the main were endorsed by the CARDINAL other members of the majority :

“ I have concluded that the appeal should be allowed .

( DATE ) In DATE ORG has considered legal questions relating to violation of privacy in the judgments Rt-CARDINAL - CARDINAL ( Big Brother ) and Rt-CARDINAL - CARDINAL ( GPE ) . My argument is based mainly on these judgments . As follows from the judgments , section CARDINAL of LAW concerning redress for violation of privacy must be read in conjunction with LAW . The provision in section CARDINAL refers , at any rate primarily , to violation of section CARDINAL . In my view , there is no need to consider whether , as contended by [ the applicants ] , there may be cases that are covered in principle by LAW but not by " privacy " under LAW . Nor will I examine whether this is a discussion of terminology or of facts .

( CARDINAL ) I have already described the content of the article . There is no doubt that the case concerns information ‒ which I am using as a general term to refer to both text and pictures ‒ that taken as a whole is relevant to the issue of privacy . There is no reason for me to evaluate individual elements on the basis of whether or not they impinge on the concept of privacy . The article as a whole contains information about the couple and their child in addition to information about the wedding . The relationships within the family and between the family and their friends are clearly of a personal nature .

( CARDINAL ) Thus the question under consideration is whether a violation of privacy took place , cf . section CARDINAL of LAW . There would have been no question of violation of privacy if consent to publication had been obtained , cf . paragraph CARDINAL of the judgment in the Big Brother case . In this case it has been clearly established that the couple had not been informed beforehand that there were plans to publicise the wedding , nor were they asked for their consent . However , the journalist , PERSON , contacted [ the first applicant ’s ] manager on DATE , immediately before the article went to press . The manager said that the couple did not wish to comment on the wedding . A little later the same day Se og PERSON was contacted and informed that the couple did not consent to publication , but the reply was that the magazine was already in the press . It has thus been clearly established that the article was published without the couple ’s consent . I would add that I see nothing in the article indicating that the couple had given the magazine permission to report on the wedding in return for payment . On the contrary , the article stated at the end that the CARDINAL celebrities did not wish to comment .

( DATE ) The next question is whether the article was unlawful . This question must be decided on the basis of an overall evaluation of the article , cf . paragraph CARDINAL of the Big Brother judgment with further references . In my assessment of legality I also refer to the Big Brother judgment , citing , as was done in the GPE judgment , paragraphs CARDINAL and CARDINAL :

‘ ... When the penal provision applies to violation of privacy , this necessarily implies that the issue that arises is that of legality . This again implies that the publication must be assessed as a whole , in the actual context and situation , where protection of privacy must be weighed against freedom of expression , cf . ORG , Part DATE , page CARDINAL , of LAW and comments , and further references .

... LAW is incorporated into internal NORP law in LAW . Both Article CARDINAL relating to respect for private and family life and Article CARDINAL relating to the right to freedom of expression are central to the present case . The principles that must be weighed in this case are similar to those that must be weighed under section CARDINAL , first paragraph , of LAW and LAW , and in the present situation these provisions should be interpreted in such a way that their content is in compliance with ORG CARDINAL and CARDINAL of LAW Rights.’

( CARDINAL ) Reference is also made in paragraph CARDINAL of the Big Brother judgment to the summing up by ORG in the von GPE judgment :

‘ ... The conclusion must naturally be read in conjunction with the rest of the judgment . The issue throughout is the balancing of the right to privacy against the principle of freedom of expression . The central issue with respect to protection of privacy is therefore whether the published article contributes to a debate of public interest . In other words , the particular importance of protection under LAW lies in the relevance of the information in question to public debate . With respect to publication of details referring exclusively to an individual ’s private life , and particularly to the private relationship between QUANTITY persons who do not occupy positions in politics or in society , this is clearly outside the area that the provisions relating to freedom of expression are intended to regulate.’

( DATE ) Both [ applicants ] are well - known figures , but neither of them has had a prominent role either in the public administration or in any other public body . Thus the provisions of LAW have no particular weight with respect to the magazine article in question , which clearly has a purely entertainment value . In the assessment of legality , protection under LAW is the most relevant principle to be weighed .

( CARDINAL ) I will now examine the circumstances in the present case in relation to the issue of legality . As mentioned above , an overall assessment of the magazine article shows that it concerns the subjects’ private life , and the question is whether in spite of this there are grounds for saying that it does not constitute a violation of privacy . A wedding is a very personal act . At the same time it also has a public side . A wedding is a public affirmation that QUANTITY persons intend to live together , and has legal consequences in many different sectors of society . Thus information about a wedding does not in itself involve a violation of privacy if it is given in a neutral form and based on a reliable source , cf . paragraph CARDINAL of the Big Brother judgment .

( CARDINAL ) The judgment of ORG in the case of PERSON and the subsequent judgment of ORG in the Big Brother case have LOC that seem to go far in support of protection against the use of pictures and texts concerning an individual ’s private life . It is therefore necessary to examine the facts on which the judgments were based . Paragraph CARDINAL of the PERSON case concerns a series of photographs of the aggrieved party . In its evaluation of the application of the law in the case at hand , the court stated in DATE and CARDINAL :

‘ ... The ORG finds another point to be of importance : even though , strictly speaking , the present application concerns only the publication of the photos and articles by various NORP magazines , the context in which these photos were taken ‒ without the applicant ’s knowledge or consent and the harassment endured by many public figures in their daily lives can not be fully disregarded ( see paragraph CARDINAL above ) . In the present case this point is illustrated in particularly striking fashion by the photos taken of the applicant at ORG tripping over an obstacle and falling down ... It appears that these photos were taken secretly at a distance of QUANTITY , probably from a neighbouring house , whereas journalists’ and ORG access to the club was strictly regulated ...

... The ORG reiterates the fundamental importance of protecting private life from the point of view of the development of every human being ’s personality . That protection ‒ as stated above ‒ extends beyond the private family circle and also includes a social dimension . The ORG considers that anyone , even if they are known to the general public , must be able to enjoy a “ legitimate expectation ” of protection of and respect for their private life ... ’

( DATE ) LAW states :

‘ Furthermore , photos appearing in the tabloid press are often taken in a climate of continual harassment which induces in the person concerned a very strong sense of intrusion into their private life or even of persecution.’

( CARDINAL ) Thus the way in which the photos were published and the constant photographing ‒ often by photographers who followed her around ‒ constituted harassment of the aggrieved party and also an invasion of privacy . The situation was similar to some extent in the Big Brother case . Se og ORG ran several articles featuring photos taken from different sources together with speculation and gossip . The magazine also described the relationship between the parties during their life together , which was an invasion of their private life as a couple .

( DATE ) The right to protection of privacy is no weaker for well - known cultural personalities than it is for others , despite the fact that their photos are published in magazines and newspapers and on the internet in connection with their professional lives . It could be said that in the case of such individuals it is even more important to ensure that their private lives and personal relationships are protected .

( CARDINAL ) A wedding is a very significant personal experience for the bridal couple , an experience that includes their families , friends and other persons close to them . The wedding ceremony and celebrations are therefore clearly part of private and family life and thus in principle should be protected . However , in my opinion this consideration is CARDINAL aspect of the case .

( DATE ) As mentioned above , a neutral description of CARDINAL NORP wedding is not unlawful .

( CARDINAL ) Neither the text nor the photos in the disputed magazine article contain anything unfavourable to the couple . The article contains no criticism , nor is there anything in the content that could weaken their reputations .

( CARDINAL ) Furthermore , although the couple ’s relationships with close friends are part of their private life , I can not see that in this context the naming of a few of the participants constitutes a violation . Nor is it particularly unusual to write that the ceremony was “ moving , and several of the guests could n’t hold back their tears when a men ’s choir sang ... ” .

( DATE ) The article contains no photos of the actual wedding ceremony . It is therefore not possible for me to have any views on whether such photos , including close - ups , would have to be regarded in a different light from those featured in the article . Photos in such a situation would clearly have more personal significance than photos showing the bridal couple arriving at or leaving the place where the marriage took place .

( CARDINAL ) I shall now examine more closely the way the wedding was conducted . The bride arrived at the islet in a rowing boat , with CARDINAL bridesmaids on board . There she was greeted by her future husband and by a men ’s choir singing a hymn . After the ceremony the bride and groom had to step from rock to rock in order to reach the shore , which the bride accomplished in bare feet . As pointed out in paragraph CARDINAL of the von GPE judgment , the concept of private life is comprehensive , and includes ‘ a zone of interaction of a person with others , even in a public context , which may fall within the scope of ‘ private life’ . However , a certain amount of weight must be given to the fact that the wedding was organised in a very unusual way , and took place in an area that is accessible to the public under LAW and that is easily visible . As already mentioned , the photos do not show the most personal part of the wedding , the actual marriage ceremony .

( CARDINAL ) As mentioned above , the photos were taken of a wedding in a place accessible to the public . It can be assumed that even in DATE there are large numbers of people on PERSON , which is one of the most popular locations for holiday cottages and recreation in GPE . Furthermore , many of the arrangements were such as to attract attention from third parties , for example the arrival of the bride in an open boat and the presence of a men ’s choir singing a hymn on the islet . The arrangements were also spectacular in themselves . In spite of the fact that all individuals , including celebrities , are entitled to protection against being photographed even in public places , I consider that this must be taken into account in the assessment of legality .

( DATE ) The photos were taken from a headland QUANTITY from the islet where the ceremony was being held , and a CARDINAL to CARDINAL zoom lens was used . For the bridal couple , however , the situation would not have been any better if the photography had taken place somewhere closer , or from a place where the photographer and journalist could have been seen by the wedding party . This could have disturbed the whole wedding . Nor was the photographing in the nature of a breach of confidence , as it would have been if for example any of the participants had published personal photos taken during or in connection with the wedding . The situation would also have been different if the photos had been taken of events taking place in a closed area where the subjects had reason to believe that they were unobserved , cf . paragraph DATE , second sub - paragraph , of the PERSON judgment .

( CARDINAL ) The article contained a photo of [ the second applicant ] together with the couple ’s under - age child . During the proceedings the focus has been on the photos related to the wedding , and it has not been contended that the use of the photo of the under - age child puts the case in a different light . The photo had previously been published in GPE , and it has not been contended that consent was lacking on that occasion . For these reasons I shall not examine the particular questions raised by the use of a photo of an under - age child without the necessary consent of the parents .

( DATE ) Thus it must be concluded that the article did not involve unlawful violation of privacy .

( DATE ) [ The applicants ] have contended as an alternative that the photos were used in a way that conflicts with the provisions of section DATE of LAW relating to the right to control the use of one ’s image . In my view these provisions should also be read with the reservation that there could be a conflict of principles and in conjunction with Articles CARDINAL and CARDINAL of LAW . The conclusion would then be the same as that of my principal assessment .

( CARDINAL ) ORG therefore allows the appeal . However , the case raises difficult and uncertain legal questions , clarification of which is in the public interest , cf . section DATE , third paragraph , a , of the Code of Civil Procedure . No award of costs should therefore be made . ”

Mr Justice PERSON gave the following reasons which in the main were endorsed by the other member of the minority :

“ ( DATE ) I am substantially in agreement with the first - voting judge ’s general interpretation of section CARDINAL of LAW and section CARDINAL of LAW . However , when weighing the right to privacy against the principle of freedom of expression in this specific case , I have arrived at a different conclusion , since I consider that in the present case the appellants have violated the right to privacy under LAW .

( CARDINAL ) I will first examine whether the subject of the article in PERSON og PERSON can be considered to be ‘ a personal matter’ in the meaning of section CARDINAL .

( CARDINAL ) I agree with the first - voting judge that information that a marriage has been contracted CARDINAL named individuals can be published without being in conflict with the provisions of section CARDINAL of the Penal Code . However , this is not the issue in the present case . The article in ORG also describes in words and pictures details of the arrangements in connection with the wedding ceremony .

( CARDINAL ) Weddings have always been a subject of general interest in the sense that those close to the bridal couple consider them important and wish to participate . It is also usual for the couple to wish to share the event with others . For these reasons there should in principle be no reason why the press should not report a wedding ceremony that takes place in full public view , and where no special arrangements have been made to indicate that the ceremony is private .

( CARDINAL ) However , DATE it is not unusual for the couple to wish to share their wedding and its arrangements only with those closest to them , and often to give the event a personal touch . They are entitled to protect themselves from publicity in such cases as well , and this includes withholding permission for the press to publish the event . In my view the desire to hold a private wedding should be respected in the sense that the wedding ceremony should be regarded as a personal matter within the meaning of section CARDINAL .

( CARDINAL ) A private wedding ceremony may take different forms . For example , a wedding held in a private home provides a clear signal to third parties that the marriage is a personal matter that may not be reported in the form published by ORG without the bridal couple ’s prior consent .

( CARDINAL ) In my view all the relevant circumstances indicate that in the present case the wedding was a private event . The wedding party was held at a hotel on PERSON , which in this context is clearly a private area . The islet where the events reported by ORG , and the marriage itself , took place is a relatively short walk away and directly linked with the hotel ’s property . In my opinion the fact that there is a general right of public access to the islet under LAW does not prevent this part of the wedding from also being of a clearly private nature . It follows from the von GPE judgment that protection of privacy also applies to places to which the public has access . Furthermore , consent to the use of the islet had been obtained from the landowner . Thus the arrangement as a whole indicated that the couple wished to restrict the wedding to themselves and their guests . From this perspective the event must be considered to be a personal matter within the meaning of LAW .

( CARDINAL ) For these reasons I consider that ORG published in words and pictures a number of details relating to a personal matter . Firstly , the magazine published details of the arrangements for the ceremony , which have been described more fully by the first - voting judge . I regard these as the personal touch that the bridal couple had wished to give their wedding and that in my view underlines the private nature of the wedding . Secondly , the article included a description of the guests and the couple ’s families , together with the names of well - known figures . In this connection the names of guests with children were also given , and pictures were shown of the children and their parents .

( CARDINAL ) Like the first - voting judge , I consider that it has been clearly demonstrated that the opposite parties’ consent had not been obtained .

( CARDINAL ) The next question is whether the publication is legal and justified despite the fact that the subject of the article is a personal matter . It follows from paragraph CARDINAL of Rt-CARDINAL - CARDINAL that the main question to be weighed is whether ‘ the article contributes to a debate of public interest . In other words , the particular importance of the principle of protection under LAW lies in the sphere of public debate’ . I agree with the first - voting judge that this wording can not be interpreted in such a way that it does not rule out that the publication of personal matters is justified in cases where it does not contribute to public debate . However , when matters of a personal nature such as those in question here are published , they must have at least a minimum of public interest if the invasion of privacy is to be considered legitimate . In the present case the publication was a celebrity article written for the sole purpose of entertainment . Although the desire to entertain is in itself legitimate , its nature does not justify overriding the affected parties’ desire to protect their privacy . In this connection I place special emphasis on the fact that getting married is a very significant occasion in a person ’s life , and that therefore the activities celebrating it ‒ the marriage ceremony and the wedding party ‒ will for most people be one of the most important events of their lives , and will often be associated with strong emotions .

( DATE ) The fact that the opposite parties are well - known cultural figures in GPE has no bearing on the assessment . Well - known persons also have the right to respect for personal matters of the kind we are dealing with here . I find support for this view both in Rt-CARDINAL - CARDINAL , cf . paragraph CARDINAL , and in the von GPE judgment ... , cf . paragraph CARDINAL .

( CARDINAL ) Although this has not influenced my view of the case , I would also like to comment on PERSON Hør ’s use of a zoom lens . The zoom lens enabled the journalist and the photographer to take close - up pictures of the bridal couple and their guests that make it look as if they were actually at the event themselves , when in fact they were hidden from those who were being observed . It seems likely that the reason for using this technique was that the journalist and photographer were aware that the bridal couple would have reacted to their presence on the islet and this might have resulted in the marriage ceremony being moved inside the hotel . Using a zoom lens because of the personal and private nature of the event resembles the use of a hidden camera , which is a factor that also weighs against the appellants .

( DATE ) For these reasons I am of the opinion that the article in Se og ORG can not be justified on the basis of an assessment of legality , and that the opposite parties are entitled to redress for pain and suffering from the appellants . With regard to the amount of redress , the opposite parties have demanded that the amount decided by ORG should be maintained . I have no objections to the amounts decided on . Since I know that I am in the minority , I will not formulate a final conclusion . ”

The relevant provision of the Penal Code reads as follows :

Any person who violates another person ’s privacy by giving public information about personal or domestic relations shall be liable to fines or imprisonment for a term not exceeding DATE .

Sections CARDINAL and CARDINAL shall apply correspondingly .

If the misdemeanour is committed in a printed forum , an order for confiscation may be made in accordance with LAW .

A public prosecution will only be instituted when it is requested by the aggrieved person and required in the public interest .


No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)

Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Sergiy Goncharenko;Síofra O’Leary;Yonko Grozev

The applicant was born in DATE and lives in the town of GPE , GPE .

According to the applicant , at TIME on DATE , while working in the backyard of his home , he saw CARDINAL young men on the LOC of the nearby ORG ( “ the factory ” ) . Since there had previously been thefts at the factory premises , during which scrap metal had been thrown over the fence into the applicant ’s yard , the latter decided to enter the factory yard to chase after the young men . However , having climbed over the fence and realising the young men were no longer there , the applicant went to look inside the building , entering “ through an opening in the wall ” . The factory premises were empty but the applicant claimed to have heard adult voices . He did not want to meet anybody and so he crawled out through the same opening and quickly returned home .

TIME a police officer , PERSON , arrived at the applicant ’s house . According to the applicant , he had a gun in his hand , swore at the applicant , grabbed him by his collar and hit him on the head with the gun handle . The applicant fell to the ground and the police officer started kicking him . The applicant ’s mother - in - law appeared and asked the police officer not to beat the applicant , whereupon he grabbed the applicant by the sleeve and took him to the police station . The applicant was accused of stealing aluminium sheets from the factory .

The applicant also submitted that , at the police station , PERSON , in the presence of CARDINAL other police officers , had kicked him in the kidneys , at which point the applicant fell to the ground . After he got up , CARDINAL of the police officers gave him some water . L. then took the applicant into CARDINAL of the offices , where he and another police officer , PERSON , beat the applicant about the head and kicked him on various parts of his body for TIME . Another police officer , PERSON , arrived and PERSON and PERSON continued to beat the applicant , wanting him to confess to theft . After a while the applicant was placed in a cell .

That night the applicant complained of a headache and general sickness . He was told by the duty police officer that a doctor would come . After some time a man wearing a white coat arrived , emptied CARDINAL ampules labelled “ GPE ” and “ Dimedrol ” ( diphenylhydamine ) into a plastic water bottle and gave it to the applicant .

On TIME the applicant was taken to court , where he was fined in administrative proceedings for disobeying a police officer ’s order to stop . According to the applicant , he had wanted to show the judge his injuries but the latter refused , advising the applicant to go to a hospital and file a complaint .

The applicant was brought back to the police station , where he signed a paper stating that nobody had ill - treated him and that his personal belongings had been returned to him . The material in the case - file includes a note , allegedly signed by the applicant and dated DATE , stating that he had no complaints about the police officers and that no physical force had been used against him .

On DATE a decision not to institute criminal proceedings against the applicant for stealing aluminium was adopted . It was noted that the applicant had not had any intention of stealing the aluminium sheets and that he had entered the factory premises out of curiosity .

The applicant came home and told his family what had happened . The applicant ’s sister - in - law , who is a nurse , gave him an injection but the applicant did not feel any better . He was suffering from headache , nausea and fever which he claimed continued for DATE .

The Government did not provide a detailed description of the events of DATE but it appears from their observations that they agreed with the findings of the national investigation authorities ( see paragraphs CARDINAL below ) .

On DATE the applicant was examined at a hospital and was hospitalised DATE . The applicant stayed in hospital until DATE . According to the applicant ’s medical records , upon arrival at the hospital , his condition was of “ medium seriousness ” . He had bruises mostly on the left side of his body and some scratches on his back . On his left thigh there was a large bruise measuring CARDINAL by QUANTITY . The applicant was suffering from headache and nausea . He told the doctors that he had been beaten by police officer L.

In a medical certificate dated DATE , issued by the hospital , the applicant was diagnosed with multitrauma , closed brain injury , brain contusion of medium severity causing numerous neurological problems , CARDINAL broken ribs , post - traumatic pneumonia and injuries to his kidneys , face and body .

On DATE the applicant requested ORG that criminal proceedings be instituted against the police officers . In support of his complaint the applicant outlined his version of the events which took place on DATE ( see paragraphs CARDINAL above ) .

On DATE and DATE several factory employees ( F. , S. , PERSON . – the wife of police officer PERSON , PERSON and A. ) testified before the investigation authorities that a noise had been heard in CARDINAL of the factory buildings . ORG had asked a police officer , PERSON , to check the origin of this noise . All of the above persons had approached the building and had seen footprints in the snow leading to a conveyor belt opening in the wall . CARDINAL of them had stayed outside while the others , accompanied by PERSON , had entered the building and had seen aluminium sheets from the ceiling piled on the floor and a man trying to escape through the conveyor belt opening . PERSON , who had stayed outside , had tried to catch the man , but the latter had broken free . When jumping from the conveyor belt , the man had slipped and fallen onto the asphalt and had then run away . The police officer had chased after the man . The latter had climbed over the QUANTITY high fence but had lost his balance and fallen onto the other side . The witnesses had heard a thud and a shriek .

L. gave similar testimony . He added that the applicant had also fallen when jumping over the fence of his house . L. had found the applicant in a coal bunker in the backyard of the applicant ’s house and said that he had taken him to a police station .

On DATE the applicant ’s mother - in - law , PERSON , testified that PERSON had arrived at her house and had said that he was looking for a criminal . Later she had heard a noise behind the barn and had seen PERSON aiming a blow with the handle of his gun at the applicant , who was lying on the ground . PERSON had begged L. not to beat the applicant . After that PERSON had taken the applicant to a police station .

On DATE ORG ( ORG у Вінницькій області ) approved the results of an internal investigation in response to the applicant ’s complaint . The investigation found that on DATE around TIME the factory employees had asked PERSON to check the origin of a suspicious noise that had been coming out of CARDINAL of the factory ’s abandoned halls . L. , accompanied by CARDINAL factory employees , checked the hall and found aluminium sheets , which had been torn from the ceiling and piled up on the floor . He also saw the applicant , who tried to escape . While running away , the applicant fell twice – once when climbing through a conveyor belt opening in the wall and a second time when climbing over the fence . He fell for a third time when jumping over the fence of his house . In the yard of his house the applicant hid in a coal bunker , where he was found and taken to a police station . The police officers testified that they had not ill - treated the applicant . The applicant ’s mother - in - law testified that a police officer PERSON had aimed a blow at the applicant as he was lying on the ground but she had not seen the applicant being beaten . Although summoned by a prosecutor , the applicant did not appear for questioning and neighbours ‒ who did not want their names to be cited ‒ described him as an alcoholic inclined to involvement in scandalous conduct , theft and fraud . The internal police investigation concluded that since the submissions of the applicant , the police officers and the witnesses were contradictory , the case - file of material should be sent to a prosecutor ’s office .

On DATE the deputy prosecutor of LOC ( заступник прокурора Шаргородського району ) refused to institute criminal proceedings following the applicant ’s complaint . The deputy prosecutor noted that the applicant had stated that he had not intended to steal aluminium but had entered the factory premises out of curiosity and had run away out of fear of being accused of theft , that PERSON had denied using physical force on the applicant and that the factory employees said that they had not seen PERSON beat the applicant . It was also noted that the applicant had not appeared for the forensic medical examination . The deputy prosecutor concluded that the applicant had sustained his injuries when trying to run away from L.

On DATE this decision was quashed by a higher prosecutor since it had not been established how the applicant ’s injuries had been inflicted .

According to a forensic medical conclusion of CARDINAL DATE , the applicant had sustained the following injuries : closed concussion , CARDINAL broken ribs on the left and CARDINAL on the right , post - traumatic pneumonia and a kidney injury . He had numerous bruises : on the chest ( QUANTITY ) , left shoulder ( QUANTITY and QUANTITY ) , left hip ( QUANTITY ) , under the right knee ( CARDINAL cm ) , left shoulder blade ( QUANTITY ) and scratches on the back . Those injuries were of medium severity and had been inflicted by a blunt , hard object possibly on DATE .

DATE and DATE ORG ( прокуратура Шаргородського району ) twice refused to institute criminal proceedings in response to the complaint from the applicant . Those decisions were quashed by higher prosecutors for reasons similar to those mentioned in the decision of DATE and the case was referred for additional investigation .

DATE and DATE the following investigative steps were taken :

on DATE the applicant ’s mother - in - law testified that she had seen L. kicking the applicant whilst he was lying on the ground ;

on CARDINAL August-CARDINAL DATE the applicant , his wife and the factory employees were questioned ;

on DATE a forensic expert concluded that the applicant had sustained bodily injuries of medium seriousness and that those injuries could have been inflicted by blunt objects or by several falls from different heights ;

on DATE police officers P. and L. were questioned ;

on DATE the factory premises were examined ;

according to a forensic medical report dated DATE , the applicant could have sustained his injuries DATE and DATE by being beaten or by falling from a height .

On DATE ORG ( прокуратура ORG області ) instituted criminal proceedings on suspicion of abuse of power .

On DATE the applicant was questioned and he reiterated his version of events ( see paragraphs CARDINAL above ) , submitting , in particular , that in the police station ‒ in the presence of QUANTITY police officers ‒ L. had struck him on the chest ; PERSON had hit him several times on the head ; P. and PERSON had kicked him on various parts of his body and PERSON had struck him on the chest and on the abdomen and had then beaten him in the presence of a police officer .

On DATE the forensic medical commission confirmed the previous expert conclusions and added that the applicant had been able to move after the injuries had been inflicted .

DATE the applicant , his family members , factory employees and police officers were again questioned and a reconstruction of events was staged in the police station . The applicant ’s mother - in - law testified that she had seen PERSON kicking the applicant as he lay on the ground . She also stated that PERSON had hit the applicant on the head with his gun handle . The factory employees ORG testified that they had seen the applicant running away and falling over on his way to the fence and again when climbing over the fence . Face - to - face confrontations between the applicant and police officers PERSON , and between the applicant and the factory employees were conducted .

On DATE the police officers PERSON and PERSON were charged with abuse of power accompanied by violence .

By a letter of CARDINAL DATE ORG informed the applicant that investigating officers PERSON and ORG had been disciplined for delaying the investigation .

On DATE P. and L. were questioned as witnesses .

On DATE ORG asked the Head of ORG of GPE , which is part of ORG of GPE ( начальник ORG у PERSON області ORG ГУБОЗ МВС України ) , to identify and question witnesses who had seen or talked to the applicant at the time of the events in question . On an unspecified date the police stated that it had not been possible to find any witnesses . Similar requests were also submitted on DATE and DATE . The answers to those requests were also negative .

On DATE ORG ( NORP територіальне медичне ORG ) , in reply to a request from ORG , submitted that on CARDINAL and DATE the applicant had not received any medical assistance from an ambulance team .

On DATE , judge PERSON . was questioned . He submitted that when he had seen the applicant in court on DATE the applicant had had no injuries to his head or hands , nor had he complained about any health problems . The applicant also did not complain that he had been beaten .

On DATE the investigating officer from ORG terminated the proceedings against the police officers for absence of corpus delicti . On DATE this decision was upheld by ORG . On DATE ORG of Appeal quashed these decisions and remitted the case for a fresh investigation . The court found that the investigating officer had failed to check whether an ambulance had been called for the applicant when he had been at the police station , and had failed to question the witnesses to the applicant ’s arrest . It was also unclear whether the applicant ’s injuries could have occurred as a result of his falls .

On DATE ORG again submitted that on CARDINAL and DATE the applicant had not received any medical assistance from an ambulance team while at the police station .

In DATE L. , NORP and PERSON were again questioned .

NORP On DATE the forensic experts concluded that the applicant ’s injuries could have occurred as a result of several falls .

On DATE the investigating officer of ORG again terminated the proceedings for absence of corpus delicti .

On DATE ORG quashed that decision because witnesses to the applicant ’s arrest had not been sought and the hospital doctors had not been questioned . The applicant ’s family members and some factory employees were to be additionally questioned and the evidential material from the administrative case - file against the applicant was to be included in the file . The case was remitted for further investigation .

On DATE ORG rejected the prosecutor ’s appeal against the decision of DATE .

DATE and DATE the proceedings were terminated CARDINAL times for absence of corpus delicti and re - opened , in particular , in the light of the failure to obtain the applicant ’s medical file from the hospital or to conduct a reconstruction of events with the participation of PERSON , witnesses and a forensic medical expert in order to establish where the applicant had fallen and the circumstances in which the applicant had suffered his injuries .

By letters of DATE and DATE ORG informed ORG , inter alia , that the applicant ’s mother - in - law , wife and sister - in - law had refused to testify , that a factory guard who had been on duty on DATE had moved to GPE , and that “ it had been impossible to question doctors at ORG since there was no information about any medical assistance that might have been provided to the applicant ” .

On DATE a reconstruction of events at the factory had been conducted with the participation of L. and a forensic medical expert . The expert had also been asked additional questions on DATE .

On DATE an investigating officer of ORG terminated the criminal proceedings against the police officers for absence of evidence of a crime .

It was found that on DATE at TIME employees of ORG had asked a police officer PERSON , who had been present at that time on the factory premises , to check the origin of noises coming from inside one of the locked factory buildings . L. together with PERSON , PERSON , PERSON . and PERSON went to the LOC in question . Inside the building , PERSON and the factory employees found aluminium sheets torn from the ceiling and piled up against a wall . They also saw the applicant , who ran away after tripping up several times . The applicant was later apprehended at his home and taken to a police station .

After being questioned on DATE and DATE ( see paragraphs CARDINAL and CARDINAL above ) , the applicant admitted that whilst running away he had heard people shouting behind him but had not paid any attention to them . The applicant also submitted that he had climbed over the fence having stepped on a manure pile on another side . However , the applicant ’s neighbours testified that the manure pile was located QUANTITY away from the wall . The prosecutor also referred to the testimonies given by the police officer PERSON , factory workers , other police officers and a judge PERSON . during the investigation . Numerous forensic medical experts concluded that the applicant ’s injuries could have been caused by having fallen onto hard objects several times . The forensic medical expert who participated in the reconstruction of events testified that the applicant ’s injuries had most probably been caused as a result of his having fallen down several times , bearing in mind the frozen ground , the height of the conveyor belt and the fence , and the body ’s acceleration when running .

In view of the above LOC concluded that there was no evidence of any crime and , since the events in question had taken place DATE , that there was no possibility of finding such evidence .

On DATE ORG authorised a search of LOC at FAC CARDINAL/CARDINAL . This search was the result of criminal proceedings instituted DATE following the placement of pornographic material on an Internet page which allegedly belonged to the applicant ’s representative .

On DATE Ya . , who was using the premises at FAC , allowed the police to inspect those LOC after receiving authorisation from the owner . She confirmed that the items of property in the room at that address belonged to the applicant ’s representative .

On DATE the police officers inspected the premises at FAC and seized , inter alia , CARDINAL computers . According to the applicant ’s representative , the office of a human rights organisation was located at that address , which was where he worked .

The applicant ’s representative complained about the seizure to a prosecutor indicating that CARDINAL of the seized computers contained part of confidential correspondence with ORG in the present case .

On DATE , in response to complaints by the applicant ’s representative about alleged breaches of the law in the course of the search and seizure , ORG issued a decision refusing to institute criminal proceedings . According to the applicant ’s representative , he appealed against that decision but to no avail .

According to reports in the media , in DATE the applicant ’s representative was acquitted .


Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Prohibition of torture);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Inhuman treatment;Prohibition of torture)

The relevant details of the application are set out in the appended table .

NORP The applicant complained of the inadequate conditions of his detention and the lack of medical care in custody . Relying on LAW he also alleged that no effective domestic remedies for his grievances had been available to him .


CASE OF DZHABAROV AND OTHERS v. BULGARIA

Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law;Article 5-1-c - Reasonable suspicion);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Pavlina Panova;Síofra O’Leary;Yonko Grozev

Mr Dzhabarov was born in DATE and lives in GPE .

Mr PERSON was born in DATE and lived in GPE . He died on CARDINAL DATE . On DATE his mother , who is his only heir , expressed the wish to pursue the application on his behalf .

PERSON was born in DATE and lives in PERSON .

On DATE Mr Dzhabarov , PERSON and a friend of theirs were travelling in a car in PERSON . At TIME they were stopped by a police patrol , arrested , and , at TIME , taken to a local police station .

The police issued an order for Mr Dzhabarov ’s detention for TIME at TIME . The order said that he was being detained under section CARDINAL(CARDINAL)(CARDINAL ) of ORG ( “ the ORG ” – see paragraph CARDINAL below ) in conjunction with LAW ( CARDINAL ) and ( CARDINAL ) of LAW DATE , which criminalise burglary and theft committed by using a motor vehicle , technical means or a special technique .

The police issued an order for Mr PERSON ’s detention for TIME at TIME That order likewise said that he was being detained under section CARDINAL(CARDINAL)(CARDINAL ) of the ORG , but in his case in conjunction with CARDINAL § CARDINAL of the Criminal Code DATE , which criminalises robbery .

NORP Neither of the CARDINAL orders mentioned the factual grounds on which they had been issued .

The applicants were released at TIME on DATE .

In DATE Mr Dzhabarov sought judicial review of the order for his detention .

On DATE ORG quashed the order . It noted that Mr Dzhabarov had been detained under section CARDINAL(CARDINAL)(CARDINAL ) of the ORG . However , the order had not specified the offence of which he was suspected . That was both a breach of the rules of procedure and an indication that there did not exist a reasonable suspicion that Mr Dzhabarov had committed an offence . The lack of such suspicion was also demonstrated by the absence of any evidence in the police file . CARDINAL police reports , drawn up later and suggesting that Mr Dzhabarov had been detained with a view to elucidating whether he was implicated in the robbery of a petrol station and a number of burglaries , could not ex post facto justify his detention ; they moreover contained discrepancies and were based on investigative steps carried out after Mr Dzhabarov ’s arrest . The court went on to say that the order had been issued TIME after Mr Dzhabarov ’s de facto arrest , which was out of line with the object and purpose of the law . The court partly allowed Mr Dzhabarov ’s claim for costs , awarding him MONEY ( ORG ) ( CARDINAL ( ORG ) ) in ORG fees and ORG CARDINAL ( EUR CARDINAL ) in court fees .

NORP The police appealed on points of law . Mr Dzhabarov did not ask ORG to vary its ruling in relation to costs , as was possible under the applicable rules of procedure . He did however ask ORG to award him the costs incurred in the appeal proceedings .

In a judgment of DATE ( реш. № DATE от CARDINAL.CARDINAL.CARDINAL г. по адм. д. № DATE г. , PERSON , ORG ) , ORG upheld the lower court ’s judgment . It held that the detention order , which had been issued at TIME on DATE , was chiefly tainted by the undisputed lack of contemporaneous evidence that Mr Dzhabarov might have been implicated in an offence . The court did not mention Mr Dzhabarov ’s claim in respect of the costs incurred in the appeal proceedings . Mr Dzhabarov did not ask it to supplement its judgment by doing so , as provided under the applicable rules of procedure .

In DATE Mr Dzhabarov brought a claim under section CARDINAL(CARDINAL ) of the State and ORG DATE ( see paragraph CARDINAL below ) against ORG . He alleged , inter alia , that his detention had been unlawful and had caused him psychological trauma . He sought ORG CARDINAL ( ORG CARDINAL ) in non - pecuniary damages and , under the head of pecuniary damages , reimbursement of the remainder of the costs that he had allegedly incurred in the judicial review proceedings : ORG CARDINAL ( EUR CARDINAL ) .

On DATE ORG dismissed the claim . It held that Mr Dzhabarov had failed to prove that he had suffered non - pecuniary damage – such as negative emotions , stress or discomfort – as a result of his detention . He had not provided any evidence , in particular medical expert reports , on that point . The statement of PERSON , who had been called by PERSON to testify , only contained information about the events surrounding their arrest and detention . The court went on to say that it was not possible to seek costs incurred in proceedings for judicial review of a detention order by way of a claim for damages under section CARDINAL(CARDINAL ) of LAW .

Mr Dzhabarov appealed on points of law . He argued , inter alia , that it was logical to presume that a person who had been unlawfully detained had endured mental suffering on account of that , and that he was entitled to compensation because his detention had been in breach of his fundamental rights .

In a judgment of DATE ( реш. № CARDINAL от CARDINAL г. по адм. д. № ORG г. , PERSON , ORG ) , ORG upheld the lower court ’s judgment . It held that claimants in proceedings under section CARDINAL(CARDINAL ) of the DATE Act bore the burden of making out all elements of the tort , including the existence of damage , and that the only evidence that could be used to prove non - pecuniary damage in the form of mental suffering was medical expert evidence , not witness evidence . The court went on to agree fully with the lower court ’s ruling in relation to the claim for costs in the judicial review proceedings .

In DATE PERSON sought judicial review of the order for his detention .

On DATE ORG quashed the order . It noted that PERSON had been detained under section CARDINAL(CARDINAL)(CARDINAL ) of the ORG . However , the order for his detention , while formally valid , was out of line with the object and purpose of the law . The police were given the power to detain persons suspected of offences with a view to being able to investigate those offences . That is why the law did not require conclusive evidence of an offence but simply information enabling the police to form a reasonable suspicion in that regard . The police detention log showed that PERSON had been brought to the police station at CARDINAL a.m. on DATE , whereas the CARDINAL witness statements submitted by the police in the judicial review proceedings in support of their contention that PERSON was suspected of an offence spoke of a robbery of a petrol station committed at TIME This showed that , at the time of PERSON PERSON ’s arrest , the police did not have a reasonable suspicion of him committing an offence . It was also striking that although PERSON had in fact been arrested at TIME on DATE , the order for his detention said that his detention had started at TIME DATE . The court partly allowed PERSON claim for costs , awarding him ORG CARDINAL ( EUR CARDINAL ) in lawyers’ fees and ORG CARDINAL ( EUR CARDINAL ) in court fees .

On DATE the police appealed on points of law against that judgment . PERSON did not ask ORG to vary its ruling in relation to costs , as was possible under the applicable rules of procedure . He did however ask ORG to award him the costs incurred in the appeal proceedings .

In a bench ruling of CARDINAL DATE ( опр. от CARDINAL г. по адм. д. № CARDINAL/CARDINAL г. , ORG , ORG ) , ORG declared the appeal inadmissible , finding that the time - limit for the police to lodge an appeal had expired as early as DATE . The court did not mention PERSON claim in respect of the costs incurred in the appeal proceedings . On DATE Mr PERSON asked the court to supplement its decision by doing so . In a decision of DATE ( опр. № CARDINAL от CARDINAL г. по адм. д. № DATE г. , PERSON , ORG ) , ORG refused the request , finding that it had been made out of the applicable DATE time - limit , which had started to run on DATE . PERSON appealed , but a CARDINAL - member panel of the court dismissed the appeal in a decision of CARDINAL DATE ( опр. № CARDINAL от CARDINAL.CARDINAL.CARDINAL г. по адм. д. № CARDINAL г. , PERSON , петчл. с-в ) .

In DATE PERSON brought a claim under LAW DATE ( see paragraph CARDINAL below ) against ORG . He alleged , inter alia , that his detention had been unlawful and had caused him psychological trauma . He sought ORG MONEY ( ORG CARDINAL ) in non - pecuniary damages and , under the head of pecuniary damages , reimbursement of the remainder of the costs that he had allegedly incurred in the judicial review proceedings : ORG CARDINAL ( EUR CARDINAL ) .

On DATE the proceedings were stayed pending the determination of the appeal against ORG judgment of DATE ( see paragraph CARDINAL above ) . On DATE the proceedings were resumed .

On DATE ORG dismissed the claim . It held that PERSON , who bore the burden of proof in that respect , had failed to show that he had suffered non - pecuniary damage DATE such as negative emotions , stress or discomfort – as a result of his detention . He had not provided any evidence , in particular medical expert evidence , on that point . The evidence of PERSON and the other person with whom PERSON PERSON had been detained , who had been called by PERSON to testify , and the expert evidence on the lawfulness of those conditions adduced in the course of the proceedings , gave information about the material conditions in the detention facility but not about PERSON state of mind or subjective perceptions . These could only be established on the basis of medical expert evidence , which had not been provided . The court went on to say that it was not possible to seek costs incurred in proceedings for judicial review of a detention order by way of a claim for damages under LAW .

Mr PERSON appealed on points of law . He argued , inter alia , that it was absurd to hold that the mental suffering flowing from unlawful detention could only be established on the basis of medical expert evidence . It was natural to presume that a person unlawfully deprived of his liberty for TIME would endure such suffering .

In a judgment of DATE ( реш. № DATE от GPE г. по адм. д. № CARDINAL/CARDINAL г. , PERSON , ORG ) , ORG upheld the lower court ’s judgment . It held that claimants in proceedings under section CARDINAL of the DATE Act bore the burden of proving all elements of the tort , including the existence of damage , and that the only evidence that could be used to prove non - pecuniary damage in the form of mental suffering was medical expert evidence , not witness evidence . The statements of the witnesses called by PERSON had established the conditions in the detention facility and the attitude of the police officers towards him , but could not serve as proof of negative changes in his physical , psychological or neurological status .

In DATE PERSON was working as head of the audit unit of the ORG division of ORG . She was in charge of , among others , the towns of PERSON and PERSON .

At TIME CARDINAL September CARDINAL , PERSON went to the Sandanski office of ORG , according to her to practise filling in tests on the ethical duties of tax officials . She said that , on her way there , she ran into an acquaintance of hers , PERSON , who asked her whether she could run a check on the identities of certain persons that he needed for court papers that he was about to file in connection with the registration of ORG as a political party . PERSON decided that there was no legal impediment to that and together with Mr PERSON went inside the ORG ’s office . However , their entry set off the alarm and shortly after that QUANTITY police officers came to the office and found PERSON and Mr PERSON inside , checking the personal data of certain individuals in the ORG ’s computer database . The officers asked the CARDINAL of them to produce their identification papers and to accompany them to the local police station .

PERSON and Mr PERSON , under police escort , arrived at the police station at TIME PERSON was asked to draw up a written explanation of her presence in the ORG ’s office . In the meantime , CARDINAL plain - clothes officers arrived at the station ; it later transpired that they were officers of ORG . They interviewed PERSON without identifying themselves and without explaining the reasons why she was detained . PERSON was released at about QUANTITY p.m. It appears that , in the meantime , at TIME , she was briefly taken by the police back to the office of ORG to be present while the police drew up a record , and then returned to the police station .

Following this incident , the prosecuting authorities opened criminal proceedings against PERSON on charges that she had knowingly divulged confidential information to which she had access by virtue of her position as a tax administration official , contrary to LAW . However , on CARDINAL DATE ORG decided to discontinue those proceedings . It noted that while PERSON had indeed misused her office to divulge confidential information – the personal data of QUANTITY persons DATE to which she had access by virtue of her position , LAW required , in addition , that this divulgation give rise to prejudice for the ORG or a private person . There was no evidence , however , that the applicant ’s act had prejudiced the ORG or those QUANTITY persons , both of whom , when interviewed , had stated that they had not suffered any negative consequences as a result of the applicant ’s divulging their personal data to Mr ORG

Shortly after the incident , PERSON and Mr PERSON complained to the military prosecuting authorities about the actions of the police officers who had detained them . On DATE the Sofia Military Prosecutor ’s Office refused to open criminal proceedings pursuant to those complaints . Its decision was upheld by ORG on DATE and by ORG on DATE .

In DATE PERSON brought a claim under LAW DATE ( see paragraph CARDINAL below ) against ORG of ORG and ORG . She alleged that her detention had been unlawful because it had not been based on a written order as required under section CARDINAL ) of the ORG . She also alleged that the deprivation of liberty and the pressure to which she had been subjected by the police had caused her stress and humiliation and had aggravated her health , and sought ORG ( EUR CARDINAL,CARDINAL ) in nonpecuniary damages .

On DATE ORG dismissed the claim . It noted that it was not disputed that TIME and TIME on DATE PERSON had been detained by officers of the Sandanski police . That was further proved by the register of detainees kept by the Sandanski police station and the statements of the officers concerned . However , a claimant in proceedings under LAW CARDINAL(CARDINAL ) of LAW ( see paragraph CARDINAL below ) had to make out all elements of the tort under that provision : a wrongful act or omission by officials , damage , and a sufficient causal link between the CARDINAL . The claimant bore the full burden of proof in relation to each of those , and the lack of any element meant that the claim should fail . However , PERSON had not categorically shown that she had suffered non - pecuniary damage as a result of her arrest and detention . There was no evidence that the officers concerned had done anything to hurt her dignity . Their testimony , which was internally consistent and matched the rest of the evidence , showed that ORG had not been subjected to any physical or psychological abuse . PERSON evidence that one of the officers had acted rudely was contradicted by the evidence of all officers and was vague ; it could not therefore be credited . It was not supported by the statement of Mr PERSON either . PERSON assertions in respect of the damage that she had allegedly suffered were in addition very general and could not be upheld . The police had been apprised of a possible offence and had detained her for CARDINAL to elucidate the case , as possible under section CARDINAL of the ORG ( see paragraph CARDINAL below ) . Had the detention lasted CARDINAL , the outcome of the case would probably have been different .

PERSON appealed on points of law . She argued , inter alia , that the court had not clarified under which point of section CARDINAL(CARDINAL ) of the ORG she had been detained , or commented on the fact that her detention had not been sanctioned by a written order . She also argued , by reference to LAW , that the mere fact of unlawful detention gave rise to non - pecuniary damage because it was an infringement of the fundamental right to liberty , guaranteed by , inter alia , LAW . Since she had been detained unlawfully , she was entitled to non - pecuniary damages in relation to that .

In a judgment of CARDINAL DATE ( реш. № CARDINAL от CARDINAL г. по адм. д. № CARDINAL г. , PERSON , ORG ) , ORG dismissed the appeal . It fully agreed with all of the lower court ’s findings , including that PERSON had been placed under police detention within the meaning of QUANTITY CARDINAL of the ORG , but did not mention LAW CARDINAL or CARDINAL of the Convention .


Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Kristina Pardalos

The applicants , PERSON Berkvens and Mr PERSON , are GPE nationals , who were born in DATE and DATE respectively and live in Asten .


Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani

The applicant was born in DATE and lives in GPE .

At the time of the events giving rise to this application , the applicant was working as a watchman on a construction site located in the vicinity of a military compound housing the CARDINALth ORG in GPE , GPE .

On DATE , sometime between TIME and TIME , the applicant left the construction site to meet QUANTITY friends , ORG , and PERSON , who worked on nearby farms . While walking towards his friends , the applicant suddenly collapsed for an unknown reason ; his friends immediately took him to hospital . The applicant ’s initial medical examination at ORG did not reveal any findings other than a cut measuring CARDINAL cm on his back between the tenth and eleventh ribs . However , a lung X - ray taken subsequently showed that a foreign object , which appeared to be a bullet , was lodged between his eleventh and twelfth ribs . The applicant was transferred to ORG to receive further treatment for serious injuries sustained to his lungs and liver . After undergoing various operations , on DATE he was discharged from the hospital . According to a medical report issued on DATE by ORG , it had been decided for medical reasons to leave the bullet inside the applicant ’s body , to be extracted only in the event of deterioration in the applicant ’s condition . The report also noted that the injuries sustained by the applicant had been life - threatening .

At TIME on DATE CARDINAL gendarme officers from the crime scene investigation unit of ORG arrived at the site of the incident , which was located by a farm by the name of “ Dürüs ” ( “ the NORP farm ” ) , to carry out a preliminary investigation and to prepare a scene - of - incident report ( on the instructions of the PERSON public prosecutor ) . After photographing the site of the incident , they talked to the witnesses and the gendarmerie patrol unit on duty . According to the information they obtained , the applicant had collapsed abruptly while he was walking to meet his friends . No gunshots had been heard at the site of the incident , but a firing practice had been underway at the relevant time at the nearby military compound housing the CARDINALth ORG . The gendarme officers indicated in their report that there were CARDINAL shooting ranges within the said military compound : CARDINAL located QUANTITY to the north of the LOC farm , at an altitude of QUANTITY ( “ the first shooting range ” ) ; and the other QUANTITY to the east , at an altitude of QUANTITY ( “ the second shooting range ” ) . The altitude of the NORP farm was QUANTITY . There were QUANTITY hills between the LOC farm and the first shooting range ; the first CARDINAL hills had an altitude of QUANTITY , and the third hill had an altitude of QUANTITY . No information was provided regarding the terrain between the farm and the second shooting range . Firing practice was carried out with GCARDINAL rifles at the first shooting range and with PERSON at the second shooting range . According to a sketch map prepared by the gendarme officers , the site of the incident was QUANTITY to the east of the assumed trajectory of bullets fired from the first shooting range . In the gendarme ORG opinion , the applicant had been hit by a stray bullet that had ricocheted during firing practice , particularly in view of the fact that no evidence of criminal conduct had been found at the site of the incident . The only evidence collected by the gendarme officers was the jacket that the applicant had been wearing at the time of his shooting , which was handed to ORG for examination .

The gendarme officers visited the site of the incident once again at TIME on TIME DATE to make further investigations , but did not discover any new evidence . It appears that on TIME they also went – on the instructions of the PERSON public prosecutor – to the military compound to photograph the shooting ranges .

At TIME on DATE the PERSON public prosecutor visited the site of the incident together with a police expert , GPE The public prosecutor noted that the investigation had not thus far revealed any spent cartridges , bullet shells , arms or any other such material on or around the site of the incident , nor had any suspects who might have shot at the applicant been identified . According to the information provided by the applicant ’s CARDINAL friends to the public prosecutor , the applicant had collapsed right before their eyes and there had been no one else present at the relevant time . They also told the public prosecutor that they often heard gunfire coming from the military compound during shooting practice and that gunfire had also been audible at the time of the incident , although they had not heard gun shots emanating from anywhere nearby .

According to the information in the case file , the applicant was still in a critical condition on TIME DATE . Nevertheless , at TIME , he was interviewed by CARDINAL gendarme officers in the office of the security team commander ( ORG ) of the local gendarmerie . It is not clear whether this office was located inside the hospital or outside . Prior to the commencement of the interview , the applicant was informed of his right to request the appointment of a lawyer from the local bar association to assist him , but it appears that he did not exercise that right . The applicant told the gendarme officers that at TIME on DATE , he had left his house to check up on the construction site where he worked as a watchman . As he had been walking towards the site , he had heard whizzing sounds above his head . He had continued to hear the same sounds on his way out of the construction site , along with the sound of gunfire from the military compound located nearby . Then , all of a sudden , he had felt a sharp pain in his back and had collapsed to the ground . He had not known what had happened until he had been told in the hospital that he had been shot in the back with a firearm . When the gendarme officers asked the applicant whether he had been in ongoing conflict with anyone and whether he had heard any gunshots at the time of the incident , he replied that he had not been in any conflict and that the only shots he had heard had been those coming from the military compound , which he had been hearing for DATE . The applicant also stated that he did not wish to press charges against anyone regarding the incident .

On DATE GPE , the police expert who had accompanied the PERSON public prosecutor during his examination of the site of the incident , issued a report of his findings . He indicated in his report that the distance between the site of the incident and the military shooting ranges , which were spread over hilly terrain , was CARDINAL kilometres . Having regard to the witness statements , and to the absence of any other factors that might explain the applicant ’s injury , the police expert opined that the injury had probably been caused by a bullet that had ricocheted during the firing practice at the military compound . He submitted a simple sketch map of the site of the incident along with his report .

On DATE the applicant was discharged from the hospital .

On DATE CARDINAL gendarme officers visited the applicant at his home on the instructions of the PERSON public prosecutor to enquire about the bullet that had wounded him . The applicant informed the gendarme officers that the bullet had still not been extracted from his body and that the doctors would re - evaluate the situation once he had fully recovered from the earlier operations . The applicant was requested to inform the authorities in the event that the doctors decided to remove the bullet .

On DATE ORG issued a report on the analysis carried out on the applicant ’s jacket . According to the report , a hole measuring QUANTITY in diameter was found in the back of the jacket , but no gunshot residue was found around that hole . Having regard to the shape and other characteristics of the hole , it was decided that it had been caused by a firearm and that the shot had been fired from a long distance .

On DATE the PERSON public prosecutor took the applicant ’s statement for the first time . The applicant was reminded of his right to request the assistance of a lawyer , which he once again declined to do . The applicant largely reiterated the statement he had made to the gendarme officers earlier . He also repeated that he did not want to press charges against any particular person , as he did not believe that he had been shot intentionally . He did , however , reserve his right to claim compensation .

On DATE the PERSON public prosecutor delivered a decision not to prosecute . The public prosecutor found firstly that , in view of the statements of the applicant and of the witnesses and the manner in which the incident had occurred , the applicant had not been shot intentionally . He noted secondly that the forensic examination conducted on the applicant ’s jacket had revealed that the shot had been fired from a long distance ; however , the source of the shot had not been identified , as the bullet had for medical reasons not yet been extracted from the applicant ’s body . Nevertheless , having regard to all the information in the case file and to the fact that a military firing practice had been underway QUANTITY away at the time of the incident , the public prosecutor found that the applicant had probably been hit by a stray bullet that had ricocheted during the firing practice . According to the public prosecutor , this offence was to be classified as CARDINAL of causing bodily harm through negligence ( taksir ) , as opposed to recklessness ( bilinçli taksir ) , in view of the significant distance of the shooting range from the site of the incident . Since the prosecution of the offence of causing bodily harm through negligence required a formal complaint to be made by the victim ( which was lacking in the instant case ) , the PERSON public prosecutor decided to close the investigation .

On DATE , after medical complications had arisen , the bullet was extracted from the applicant ’s body and handed over to the hospital police . On DATE it was registered in the custody of the PERSON public prosecutor ’s office .

In the meantime , on DATE the applicant lodged an objection against the decision of the PERSON public prosecutor , with the assistance of his lawyer . The applicant ’s lawyer stated that the decision to close the investigation had been taken prematurely , before the investigation process had been completed and the gun from which the bullet had been fired and the identity of the shooter had been identified . There had also not been an attempt to establish whether the bodily harm had been caused through negligence , recklessness , lack of experience or breach of duty or with intent . Moreover , requesting the victim to indicate whether he wanted to press charges without first having established the perpetrator and the nature of the offence did not comply with due procedure .

The applicant ’s objection was rejected by ORG on DATE . The assize court did not provide any justification for its decision , apart from stating that the PERSON public prosecutor ’s decision had been in compliance with the law . This decision was served on the applicant on DATE .

On DATE the applicant lodged a request with ORG ( “ the Ministry ” ) for pecuniary and non - pecuniary damages in respect of his wounding . ORG refused the request ; the applicant then brought an action for compensation before ORG .

On DATE ORG dismissed the applicant ’s action . It held that while it was not disputed that the applicant had been wounded by a bullet , there was no tangible evidence to prove that the bullet in question had in any way been connected to the firing practice held by the CARDINALth ORG in GPE on the date in question . The criminal investigation into the incident had been closed on account of the applicant ’s decision not to bring an official complaint , and the bullet extracted from his body after the closing of the investigation had therefore not been subjected to a ballistic examination . In these circumstances , by not pursuing his complaints the applicant had hindered the collecting of evidence that could have proved a causal link between the administrative act ( idari eylem ) and the damage sustained . In the administrative court ’s opinion , the applicant had thus not proved his allegations .

On DATE ORG upheld the judgment of ORG .

An internal administrative inquiry was also conducted by the military authorities into the applicant ’s shooting . During the course of that inquiry CARDINAL gendarme officers of various ranks who had attended the firing practice in question were interviewed on DATE by a lieutenant - colonel . The officers stated , in virtually identical words , that a firing practice had been held on DATE between TIME and TIME with GCARDINAL rifles , that all necessary security measures had been taken at the shooting range prior to the commencement of the practice , in line with the applicable laws and instructions , that all rifles had been fired under the supervision of senior officers , that no firing had been permitted outside the designated shooting areas , and that , in view of the security measures in place and the distance of the applicant from the shooting range , the applicant should not have been affected by bullets fired during the practice .

On DATE a report was issued on the findings of the administrative inquiry . According to this report , all requisite safety measures had been implemented at the shooting range on the date in question , in compliance with the relevant security regulations , and no fault or negligence had been found on the part of the military officers who had participated in the firing practice . The report indicated that additional security precautions had nevertheless been taken on the shooting range in the aftermath of the incident , such as adding to the sand bags and barrels behind the target boards , and building barriers in order to reduce the incidence of ricochets , and surrounding the gun - target line with additional barrels .


Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life)

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

The applicant was born in DATE and lives in GPE .

In DATE , the applicant started going to the dental practice of Dr A.D. in order to have dental bridges fitted . The treatment involved work on CARDINAL teeth , fitting bridges and crowns and adapting the adjacent teeth .

NORP The treatment started in DATE . When the first part of the bridgework was ready , the applicant noticed that it did not fit well . The dentist told her that she could still use it in order to eat and that he would rectify the problem . When the rest of the bridgework was ready , she again noticed that she could not close her mouth and that when she tried to eat it caused her great pain . The bridges were fitted provisionally and it was agreed that they would be permanently fixed at a later stage after being further adapted . Nevertheless , while wearing them she realised that her gums were affected . During DATE , she went to the dental surgery several times in order to have the bridges adapted , but the dentist told her that they were perfect and that all that remained was for them to be fixed permanently , even though she showed him that she could not close her mouth and that her gums were bleeding .

The applicant alleged that she had attempted to make a new appointment with Dr DATE on several occasions prior to DATE , but to no avail . During this period , her state of health worsened and she had no money to pay for further dental treatment .

On DATE the dentist issued her with a certificate of guarantee for the dental work that he had carried out and he kept the bridges with a view to adapting them . The applicant only received them back DATE , without any change having been made to them .

She insisted that she could not use the bridgework , she could not eat while wearing it and that it hurt her gums and caused them to become infected .

In a complaint of DATE addressed to ORG , the applicant asked to undergo a medical expert examination in order to determine whether the bridgework was functional , to what extent it affected her teeth and how long she could wear bridges which were only fitted provisionally without this affecting her teeth and gums or causing irreversible speech problems .

On DATE she was informed that her complaint would be reviewed by ORG .

At DATE , she had a consultation with another dentist , PERSON According to the applicant , she was told that the bridgework had not been correctly done and , given all the problems that it had caused her ( infected gums , cuts , pain ) , it was not recommended that the bridges be fixed permanently .

DATE , she was asked to undergo an examination by a panel of experts attached to ORG .

The second examination took place on DATE . She submitted that she had been told that there had been no need to perform an overly detailed examination , as it could be easily seen that the bridges should not be worn .

In a letter of DATE addressed to ORG , she asked to be informed of the findings in the medical expert report . On DATE , ORG replied that the findings of the medical examination that they had carried out were only for the internal use of ORG of ORG . If she wished to obtain an expert report , she had to request CARDINAL from ORG ( hereafter , “ the Institute ” ) .

She contacted the ORG , but was informed that a medical expert report could only be requested in the context of judicial proceedings .

On DATE the applicant lodged a criminal complaint , asking that a detailed medical expert report be ordered to determine whether there had been medical negligence . In the same complaint , she sought the reimbursement of the cost of the remaining dental treatment , which had not been returned to her , as well as compensation for non - pecuniary damage arising from the suffering and health problems that the treatment in question had caused her . Her complaint was registered with the competent police department on CARDINAL DATE .

In a letter of CARDINAL DATE , the police department asked the ORG to draw up a medical expert report in order to determine whether the dental work performed by Dr A.D. had caused injuries which required medical treatment .

The Institute , having received a request by the applicant for the examination not to be conducted by ORG , where Dr A.D. had studied , asked ORG to examine the applicant .

ORG issued its report on DATE , after having examined the applicant . The applicant took the report and handed it over to the ORG , which issued a forensic expert report on DATE .

Its findings were as follows :

“ after having examined S.B. and reviewing the medical papers , it appears that in DATE she underwent treatment to fit a variety of bridges and crowns , which proved to have been carried out incorrectly and inadequately . The attempt to wear the bridges and the subsequent absence of them led to complications and functional disorders ( dental abrasion , chronic marginal periodontitis ) [ made ] very widespread and severe by the dental bridgework , which is currently not correctly adapted to the cervical and axial margins [ of the interproximal surfaces ] .

We underline that her current state is not completely the fault of the doctor who performed the work , but is also a result of the lack of dental treatment in DATE , a period of time during which the functional disorders [ outlined above were ] aggravated because the bridges were not correctly adapted to the cervical and axial margins [ of the interproximal surfaces ] .

In order to redo the treatment and put in place correct bridges , it is estimated that ORG would have to undergo TIME of medical treatment ..... ”

The applicant tried to obtain a copy of that report , but she was told that she could only obtain one once the case had been referred to a court . In the end , she obtained a copy from the investigating officer on CARDINAL October CARDINAL .

The applicant contested the findings of this medical expert report , submitting that it had played down the negative findings of the report issued by ORG following that hospital ’s examination of her . She also complained that there was no opportunity to have the conclusions reviewed by a medical review board .

On DATE the prosecutor attached to ORG opened a criminal investigation against Dr DATE on charges of causing bodily harm , for which criminal liability was established by LAW , as in force at the material time .

On DATE the same prosecutor put an end to the criminal investigation , reasoning that the applicant ’s failure to go to DATE ’s dental surgery in order to have the bridges permanently fixed had led to the deterioration of her state of health .

That decision was communicated to the applicant on DATE .

The applicant lodged a complaint against the decision . The complaint was allowed by a prosecutor ’s decision of CARDINAL DATE . The prosecutor held that the case had been investigated on the basis of a crime punishable under LAW ( causing unintentional bodily harm ) , whereas the decision to terminate the proceedings had concerned a crime punishable under LAW ( causing bodily harm ) .

The case was referred back to the prosecutor .

By a decision of CARDINAL DATE , the prosecutor terminated the criminal investigation against DATE on the basis that the applicant had failed to lodge a criminal complaint against him within the twomonth timelimit set by LAW . A criminal action for unintentional bodily harm could only be started on the basis of a preliminary complaint by the victim , which had to be lodged within DATE from the date on which the victim had become aware of who the perpetrator was . As the applicant had known who had carried out the dental treatment since DATE but had only lodged her complaint with the prosecutor on CARDINAL DATE , it followed that her complaint was out of time . This decision was upheld by the supervising prosecutor on DATE .

The applicant ’s application for judicial review of those decisions was dismissed by ORG on DATE .

Her subsequent appeal was allowed by GPE ORG in a final decision of CARDINAL DATE , by which it was established that the prosecutor and the district court had wrongly assessed the evidence . ORG noted that the criminal investigation had not been completed within a reasonable time . It was further established that the evidence in the case file had been sufficient to support the allegation that Dr DATE had committed an act punishable by LAW § § DATE , a crime in respect of which a criminal investigation could be automatically started by a public prosecutor . ORG drew attention to the findings of the medical expert report in respect of the complications caused by the bridgework . It therefore considered that these complications ( the destruction of bone supporting the teeth ) amounted to a permanent physical disability .

ORG remitted the case to ORG CARDINAL District Court , instructing that court to consider the case in the light of the crimes punishable under LAW and CARDINAL of LAW .

The district court ordered a new expert report from ORG . The report could not be produced mainly because all the medical documentation from PERSON consulting room , consisting of medical records , xrays , dental prints , and so forth , could not be found . The applicant refused to undergo a new medical examination on the ground that the new report should have been based not only on her examination in DATE but also on the documents existent in her medical file .

In its judgment of CARDINAL DATE ORG found , on the one hand , that the applicable statute of limitation had expired . On the other hand , examining the merits of the case it acquitted the defendant on the basis of the expert report of DATE , finding that “ the subsequent behaviour of the injured party , who chose to ignore the medical advice of the defendant , refused the completion of the treatment , in particular the permanent fixing of the dental prosthetics , only wore the prosthetics when eating , as she had personally testified before the court , [ and failed to maintain ] proper oral hygiene , [ as ] underlined by the expert report , ... led to complications , [ which ] can not be blamed on the defendant but on the injured party herself . ”

The applicant lodged an appeal on points of law with ORG . She sought a requalification of the charges from Article CARDINAL ( causing unintentional bodily harm ) to Article CARDINAL ( causing intentional bodily harm ) of LAW .

By a decision of CARDINAL DATE ORG dismissed the applicant ’s appeal on points of law . It held , inter alia , that the additional evidence requested by the applicant such as the contract , order and invoice for the manufacture of the bridges , as well as dental xrays , was irrelevant . Furthermore , it held that no causal link could be established between the treatment and the injuries sustained by the applicant , which were attributable exclusively to her conduct , that is , ignoring medical advice .