Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Dmitry Dedov;George Nicolaou;Helen Keller;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

This application was lodged on DATE by PERSON , who was born in DATE and lives in GPE . The applicant is represented by PERSON , a lawyer practising in GPE .

On DATE the applicant staged a demonstration in front of ORG in GPE , holding a poster that read “ Psychiatry kills our children on our taxes ” . According to her , it was a solo static demonstration ( одиночное пикетирование ) ( see “ Relevant domestic law and practice ” below ) and , as such , fell outside the statutory requirement to give prior notification to the competent public authority . Moreover , she took care to position herself at a distance from other people who were also present in front of ORG .

After TIME , the applicant was approached by police officers , who then took her to the district police station . An arrest record was compiled ; the reasons for her arrest are unclear .

According to the applicant , she spent TIME in the police station and was then allowed to leave .

The Government submitted to the ORG a report issued on DATE by the senior officer on - duty , PERSON . The report stated that the applicant and CARDINAL other people ( including GPE , NORP S. ) had been present at TIME in front of ORG , holding posters that read “ Attention ! Psychiatry kills . MONEY of public funds spent on the destruction of lives ” , “ Do not force taxpayers to pay for psychiatrists’ systematic extermination of NORP ” , “ Psychiatrists need walls to hide their crimes ” and other such statements . The ORG also submitted to the ORG copies of documents relating to administrative offence proceedings against A. , NORP S.

As for the applicant , the administrative offence record states that she was accused of “ taking part , together with other citizens , in a demonstration in respect of which no prior notification had been provided to the public authorities ” . Her actions were classified under LAW of GPE ( hereinafter “ the CAO ” ) , which regulates the penalties applied to violations of the regulations on public events set out in , inter alia , LAW .

Officer PERSON submitted a written report to his hierarchical superior indicating that the applicant “ had been arrested and taken to the police station for violating the regulations on public gatherings , namely LAW of the ORG ” .

According to the Government , on DATE the case against the applicant was received by the justice of the peace of LOC , who on DATE scheduled a hearing for DATE . According to the applicant , she was not informed of the hearing date until it was too late . Thus , she made no written or oral submissions to the court .

Having examined the file , on DATE the judge considered that the applicant had been apprised of the hearing but had refused to sign the summons . The court decided to proceed with the case in her absence and held that she had been afforded but had not used an adequate opportunity to make written or oral submissions . On DATE , the judge found the applicant guilty under LAW of the ORG and imposed a fine of MONEY ( RUB ) , which was at the time equivalent to MONEY ( ORG ) .

Referring to the arrest record , the offence record and PERSON ’s report ( see above ) , the court considered that the applicant had participated in a demonstration after which CARDINAL people and the applicant had been arrested . In the court ’s view , the applicant ’s behaviour amounted to participation in a public event requiring prior notification . The justice of the peace then held as follows :

“ [ The applicant ’s ] actions constitute a violation of the regulations on static demonstrations in that no notification had been made [ to the competent authority ] about the possibility of staging a demonstration ... Thus , this demonstration was held without legal grounds . The court takes into account that the applicant ’s presence next to the object being picketed , together with other people , directly discloses the expression of opinions and attitudes , and thus takes the form of a group public event , namely a static demonstration . ”

The applicant sought re - examination of the case on appeal by ORG of GPE . On DATE the court heard the applicant and upheld the judgment of the justice of the peace , concluding that the applicant had taken part in a public event held without prior notification to the competent authority ; on DATE she had been apprised of the hearing to be held before the justice of the peace but had failed to sign the summons .

On DATE the Deputy President of ORG upheld ORG decision on supervisory review .

This application was lodged on CARDINAL DATE by PERSON , who was born in DATE and lives in GPE . He was represented by PERSON , a lawyer practising in GPE .

On DATE the applicant staged a solo demonstration in front of the ORG building . He was holding a poster showing people ( apparently , officials he suspected of corruption ) behind bars , and saying “ They should be found accountable ! ” and “ Mr Boos ! PERSON ’s residents are waiting for you to solicit the President ! ” . Mr S. , a journalist , was passing by and filmed the demonstration and the arrival of the police .

The applicant was arrested by the police and taken to the police station . He remained there for TIME and was then allowed to leave . No administrative offence proceedings were instituted against him .

According to reports subsequently made by the arresting officers , the applicant had not had an identity document on him and had agreed to accompany them to the police station in order to have his identity verified and to have an administrative record compiled .

The applicant brought civil proceedings seeking RUB CARDINAL,CARDINAL as compensation in respect of non - pecuniary damage caused by the authorities’ actions . The applicant referred to LAW .

By a judgment of DATE , ORG of GPE acknowledged that the taking of the applicant to the police station and his retention there had been unlawful . The court held as follows :

“ Following the escorting of [ the applicant ] to the police station no administrative offence case was opened ... [ Mr S. ] testified that the defendant had shown his identity document and had not expressed his consent to go with the police to the police station ... The police officers acted unlawfully when escorting the applicant to the police station ... ”

The court awarded the applicant RUB CARDINAL in respect of non - pecuniary damage ( approximately EUR CARDINAL at the time ) . It dismissed his claim concerning the alleged destruction of the poster by the police and made no separate findings relating to his freedom of expression .

On CARDINAL DATE ORG upheld the judgment .

This application was lodged on DATE by PERSON , who was born in DATE and lives in the village of GPE in GPE .

On DATE , when PERSON was visiting the village of GPE , the applicant staged a demonstration , standing at some distance from a road close to the village and holding a poster reading “ Mr GPE ! In the GPE region they disregard your Decree on social assistance to families . ORG disregards its obligations to issue housing certificates ! ”

According to the applicant , police officers approached him and ordered him to go to another place where journalists were filming . He arrived there and displayed his poster . He was approached by people in plain clothes who ordered the police to take him to the police station . The police complied . After TIME in the police station , the applicant was free to leave .

The police drew up a record of the administrative escorting in respect of the applicant .

The applicant was accused of disorderly behaviour on account of using foul language in a public place on DATE . On DATE a senior police officer found him guilty under LAW ( see paragraph CARDINAL below ) and imposed a fine of RUB CARDINAL on him . On DATE the ORG overruled the conviction because the senior police officer had not heard evidence from the applicant . The court then discontinued the case owing to the expiry of the time - limit for prosecution . On DATE ORG upheld the judgment on appeal .

The applicant brought civil proceedings challenging the actions of the police in respect of him . On DATE ORG dismissed his claims . On DATE ORG upheld the judgment on appeal . The appeal court noted that the courts dealing with the administrative offence case had not determined whether the applicant had committed the impugned action ( using foul language ) and whether he had committed an offence , but had simply discontinued the case on procedural grounds . The appeal court concluded that the above “ did not disclose any unlawfulness ” on the part of the law - enforcement officers , while the applicant had not substantiated , in the current case , that their actions had violated or otherwise impeded the exercise of his protected rights or freedoms .

This application was lodged on DATE by PERSON , who was born in DATE and lives in GPE . He is represented by PERSON , a lawyer practising in GPE .

At TIME on DATE the applicant staged a solo demonstration at a bus stop . He was holding a poster which read “ The ORG is not for sale – it is a piece of architecture ! ” . After TIME CARDINAL passers - by stopped and looked at him and his poster .

It appears that soon thereafter CARDINAL police officers approached and warned those present that a meeting required prior notification to the authorities . The passers - by went away .

It appears from a video recording submitted by the applicant that CARDINAL of the police officers refused to listen to the applicant ’s explanations and told him that he would be taken to the police station . The applicant was then placed in a police car and taken to the police station . He was accused of holding a public event without giving prior notice .

According to the ORG , the applicant had staged a public meeting first on the road and then on the pavement near a bus stop . The police ORG written reports indicated that the applicant had called passers - by to approach and discuss with him the topic of the event . The police decided to apply the escort procedure ( доставление ) to the applicant because it was necessary to put an end to the administrative offence and because an administrative offence record could not be compiled on the spot since the applicant had no identity document on him . The applicant agreed to go with the police to the police station .

On DATE a justice of the peace convicted the applicant under LAW of the ORG . The court considered that the applicant had held a public event in the form of a meeting ( митинг ) ; CARDINAL people had gathered but then dispersed after a warning from a police officer . The justice of the peace sentenced the applicant to a fine of RUB CARDINAL ( approximately EUR CARDINAL at the time ) , noting that the applicant had committed an offence that was similar to another one for which he had already been convicted DATE . The justice of the peace warned the applicant that his failure to pay the fine would constitute an administrative offence under LAW , which was punishable by a fine of double the amount or CARDINAL days’ detention .

The applicant appealed , arguing that the court had failed to take into account his financial situation when imposing a high fine .

On DATE the ORG of GPE upheld the judgment on appeal . The appeal court dismissed the argument concerning the amount of the fine by stating that it was the minimum statutory amount prescribed by LAW ORG .

In DATE the justice of the peace allowed the applicant to pay the fine in CARDINAL DATE instalments .

At TIME on DATE the applicant held a solo demonstration in front of ORG in GPE , to express his disagreement with the recent decision to close the university . The applicant was holding a poster that read “ To close the university is to commit a crime ” .

Mr A. was holding a demonstration on the other side of the road , making similar claims . He was holding a poster saying “ PERSON order no . CARDINAL of DATE and find its authors liable ” . According to the applicant , he was standing QUANTITY away . The Government submitted that the applicant and A. were at “ visual distance from each other ” .

Shortly after starting his demonstration , the applicant was approached by a police officer who warned him that he was in breach of LAW ORG . He then escorted the applicant to the police station . It appears that PERSON was also taken to the police station . According to the Government , it was not possible to draw up an administrative offence record on the spot because the applicant had no identity document on him .

The applicant was allowed to leave the police station after TIME .

In GPE , Law no . CARDINAL/CARDINAL-FZ of DATE set the minimum distance between solo demonstrators at QUANTITY .

On DATE a justice of the peace held a hearing . A. stated that he knew the applicant ; without any concerted plan , they had both gone to the university to stage solo demonstrations ; the applicant had not prepared his own poster and so had taken CARDINAL of A. ’s posters ; they had placed themselves at a distance of QUANTITY from each other .

On DATE , the justice of the peace convicted the applicant under LAW of the ORG ( organisation and holding of a public event without prior notification ) and imposed a fine of RUB CARDINAL on him . On CARDINAL DATE ORG of GPE upheld the judgment . The courts considered that the applicant and ORG had held a public static demonstration ( common logistical organisation , timing and claims disclosing a common goal ) , which by law required them to notify the local authorities in advance . The courts concluded that the offence impinged upon public order and public security , “ having a significant adverse impact on protected public relations ” . According to the Government , the applicant was a “ participant ” in a demonstration with A.

It appears that on DATE ORG reviewed the case and reduced the fine to RUB CARDINAL .


CASE OF KUDREVIČIUS AND OTHERS v. LITHUANIA

No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly)

Aleš Pejchal;András Sajó;André Potocki;Angelika Nußberger;Dean Spielmann;Egidijus Kūris;Elisabeth Steiner;Ganna Yudkivska;George Nicolaou;Guido Raimondi;Helen Keller;Helena Jäderblom;Johannes Silvis;Jon Fridrik Kjølbro;Josep Casadevall;Krzysztof Wojtyczek;Luis López Guerra;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The first applicant , Mr Arūnas Kudrevičius ( hereinafter “ PERSON ) , was born in DATE and lives in GPE , GPE region ; the second applicant , Mr Bronius Markauskas ( hereinafter “ B.M. ” ) , was born in DATE and lives in GPE , GPE region ; the third applicant , PERSON PERSON ( hereinafter “ GPE ” ) , was born in DATE and lives in GPE , GPE ; the fourth applicant , Mr PERSON ( hereinafter “ PERSON ” ) , was born in DATE and lives in GPE , LOC ; and the fifth applicant , PERSON PERSON ( hereinafter “ V.M. ” ) , was born in DATE and lives in GPE , Vilkaviškis region .

On DATE a group of farmers held a demonstration in front of the Seimas ( ORG ) building to protest about the situation in the agricultural sector with regard to a fall in wholesale prices for various agricultural products and the lack of subsidies for their production , demanding that the ORG take action . On DATE ORG passed a resolution on reinforcing the competitiveness of agriculture , providing for an increase in subsidies for the agricultural sector . According to the applicants , this resolution was not implemented by the government .

On DATE ORG ( LOC ūkio rūmai ) , an organisation established to represent the interests of farmers , met to discuss possible solutions to the issues . If no positive changes in legal regulation were forthcoming , the measures foreseen included addressing complaints to the administrative courts . In the meantime , it was decided to organise protests , in CARDINAL different locations next to major highways ( prie magistralinių kelių ) , to draw attention to the problems in the agricultural sector .

In DATE the PERSON municipality issued a permit to hold peaceful assemblies in GPE town “ near the marketplace ” from TIME to QUANTITY p.m. on CARDINAL - CARDINAL DATE , from TIME on CARDINAL DATE and from TIME on DATE . The organisers had been warned about possible liability under LAW as well as under LAW , including LAW latter ( see paragraph CARDINAL below ) . According to the Government , similar permits , accompanied by the same warnings , were issued for DATE , DATE and DATE DATE .

On DATE the LOC municipality issued a permit to hold a demonstration “ at the car park at QUANTITY of the FAC highway and next to that highway ” . The farmers were also authorised to display agricultural machineries for DATE from DATE . On CARDINAL DATE the organisers of the gathering were informed about possible liability under LAW as well as under LAW , including LAW latter .

On DATE the Klaipėda municipality issued a permit to hold an assembly in an “ area in GPE village next to , but not closer than QUANTITY from , the GPE - Klaipėda highway ” from TIME to QUANTITY p.m. on DATE . The permit specified that it granted the right to organise a peaceful assembly in compliance with the provisions set forth , inter alia , in the LAW and in ORG . It was also indicated therein that the organisers and the participants were to observe the laws and to adhere to any orders from the authorities and the police ; failure to do so could engage their administrative or criminal liability . The second applicant , PERSON , who was indicated as one of the organisers of the gathering , signed a receipt for the notification of the permit .

The PERSON police received information about the LAW possible intention to overstep the limits established by the permits . PERSON was therefore contacted by telephone and a meeting with him was organised in order to avoid unlawful acts during the demonstrations .

The demonstrations started on DATE . The farmers gathered in the designated areas .

On DATE the farmers blocked and continued to demonstrate on the roads next to GPE , on the GPE - Klaipėda highway , at the QUANTITY of the Panevėžys - Pasvalys - Riga highway , and at the QUANTITY of FAC .

The Government underlined that the police had not received any prior official notification of the ORG intention to block the CARDINAL major roads of the country . They described as follows the behaviour of the farmers and of the applicants during the demonstrations :

( a ) On DATE at TIME a group of CARDINAL people moved onto the GPE - Klaipėda highway and remained standing there , thus stopping the traffic .

( b ) On DATE at TIME a group of CARDINAL people moved onto the PERSON - Pasvalys - GPE highway and remained standing there , thus stopping the traffic . Such blockage continued until CARDINAL noon on DATE . The first applicant encouraged the demonstrators to move from the car park onto the highway .

( c ) On DATE at TIME a group of CARDINAL people moved onto the FAC and kept standing there , thus stopping the traffic . In addition , on DATE applicants drove tractors onto the highway and left them standing there . Such blockage continued until TIME on CARDINAL DATE .

On CARDINAL DATE the farmers continued negotiations with the government . DATE , following a successful outcome to those negotiations , the farmers stopped blocking the roads .

The parties disagreed as to the extent of the disruption to traffic created by the farmers’ demonstrations .

According to the applicants ( see paragraph CARDINAL below ) , knowing that blockages were likely to occur , the police had prepared alternative road itineraries in the vicinity of the places where the demonstrations were held , so that the roadblocks would not disrupt the flow of goods . Indeed , on DATE in question the latter had been “ even better than usual ” . This could be proven by the “ data from posts where the roadblocks took place ” .

In a letter of CARDINAL DATE addressed to the applicants’ lawyer , ORG indicated that several queues of lorries ( ranging from CARDINAL to QUANTITY ) had formed from CARDINAL until DATE in both directions in the proximity of the Kalvarija border crossing between GPE and GPE . According to the same letter , “ there were no queues of passenger cars . ” Moreover , no queues had formed at the GPE border post ( another post on the NORP - Polish border ) .

The Government first observed that the GPE - Klaipėda highway was the main trunk road connecting the CARDINAL biggest cities in the country , while the PERSON - Pasvalys - GPE highway ( otherwise known as ORG ) and the FAC were transitional trunk roads used to enter and leave the country . According to the Government , all CARDINAL roads were blocked at locations next to the customs post for TIME .

The Government alleged , in particular , that owing to the blocking of the Kaunas - Marijampolė - Suvalkai highway , which prevented vehicles from passing through the border control station , rows of heavy goods vehicles and cars formed in GPE and GPE at the GPE border crossing . The heavy goods vehicles were forced to drive along other routes in order to avoid traffic jams . As the functioning of the PERSON customs post was disturbed , the GPE territorial customs authority was obliged to re - allocate human resources as well as to prepare for a possible re - organisation of activities with ORG and the NORP customs . As a consequence , the GPE territorial customs authority incurred additional costs ; however , the concrete material damage had not been calculated .

According to a report of the GPE police , the road was blocked on DATE . The lorries returning to GPE from GPE were directed by the police to a car park at the GPE border crossing . At TIME the lorry drivers approached the farmers . They demanded an end to the roadblocks , with the threat of using physical force . The police urged the parties to the conflict to calm down and to wait for the results of the negotiations between the farmers and the Prime Minister . According to the Government , the farmers and the lorry drivers had a few arguments , but more serious confrontations were avoided . At TIME the farmers received a telephone call about the positive outcome of the negotiations and moved CARDINAL tractor off the road . The traffic then resumed in both directions .

The Government also noted that , owing to the blocking of the GPE - Riga highway on CARDINAL DATE from CARDINAL until TIME , heavy goods vehicles could not cross the border and rows of traffic of QUANTITY respectively appeared in both directions . Cars took diversions along a gravel road .

On DATE the NORP police issued a certificate stating that on DATE the farmers had held a demonstration in the car park at the QUANTITY of the Panevėžys - Pasvalys - Riga highway . On DATE at around midday the farmers had gone onto the highway and had stopped the traffic . They had only allowed through passenger vehicles and vehicles carrying dangerous substances . Vehicles that carried goods and cars were allowed to go through CARDINAL at a time on each side of the road once every hour . In order to improve the situation , the police had attempted to let the traffic bypass the blockade through neighbouring villages . However , owing to the poor condition of those neighbouring roads , not all lorries that carried goods were able to drive on them and they had to remain on the highway until the farmers had left . Some lorries became stuck in sand and special machinery was necessary to pull them out . The police indicated that the farmers had unblocked the highway at TIME on CARDINAL DATE .

As can be seen from the documents submitted to the ORG , in DATE and DATE CARDINAL logistics companies informed the police and PERSON , ORG , that they had sustained pecuniary damage in the sum of CARDINAL NORP litai ( LTL – approximately ORG CARDINAL,CARDINAL ) as a result of the roadblocks during the farmers’ demonstrations . The companies stated that they would institute court proceedings in respect of those claims .

The Government alleged that notwithstanding the fact that CARDINAL claim for pecuniary damage was ultimately lodged ( see paragraph CARDINAL below ) , CARDINAL carrier company incurred material loss owing to the disruption of traffic . As submitted by PERSON , PERSON incurred damage amounting to LTL CARDINAL,CARDINAL ( approximately EUR CARDINAL ) ; PERSON incurred damage amounting to LTL CARDINAL,CARDINAL ( approximately EUR CARDINAL ) ; and ORG incurred damage amounting to ORG ( approximately ORG CARDINAL ) . Moreover , in a letter of CARDINAL DATE the company ORG indicated that the loss incurred owing to the roadblocks amounted to ORG CARDINAL ( approximately EUR CARDINAL,CARDINAL ) .

Pre - trial investigations against the applicants and a number of other persons , on suspicion of having caused a riot , were initiated . In DATE PERSON , V.M. , GPE and GPE were ordered not to leave their places of residence . That measure was lifted in DATE .

On DATE the police imposed a fine of LTL CARDINAL ( approximately EUR CARDINAL ) on farmer GPE According to the applicants , it was established in the police record relating to the fine that on CARDINAL DATE had taken the farmers to block the LANGUAGE - Marijampolė - Suvalkai highway in GPE municipality ; he had walked in the middle of the road , pushing a cart in front of him , thus obstructing the traffic . By such actions GPE had breach paragraph CARDINAL of ORG ( see paragraph CARDINAL below ) and thus committed an administrative law violation , as provided for in LAW ( see paragraph CARDINAL below ) .

The Government noted that the criminal proceedings against DATE were discontinued on DATE as he had not organised or provoked a gathering to seriously breach public order ; his act ( walking in the middle of the road pushing a cart in front of him ) was not considered to fall under LAW ( see paragraph DATE below ) . The Government further noted that the criminal proceedings had been discontinued on similar grounds in respect of CARDINAL other persons . In respect of a fourth person the criminal prosecution was discontinued owing to his immunity as a Member of ORG .

On DATE an indictment was laid before the courts . PERSON and PERSON were accused of incitement to rioting under LAW .

The prosecutor noted that PERSON had taken part in the ORG meeting of CARDINAL DATE , at which the farmers had decided to hold demonstrations near major highways on DATE and , should the government not satisfy their requests by TIME on DATE , to blockade those highways . On DATE PERSON had told the farmers to blockade the roads on DATE As a result , at CARDINAL p.m. on that date around CARDINAL farmers had gone onto the GPE - Klaipėda highway . The farmers had refused to obey police requests not to stand on the road . Consequently , traffic had been blocked until TIME on CARDINAL May. Traffic jams had occurred on neighbouring roads and road transport in the region had become impossible .

With regard to PERSON , the prosecutor claimed that he had also incited the farmers to blockade the highway . As a result , at TIME on CARDINAL DATE CARDINAL people had gone onto the PERSON - Pasvalys - GPE highway , refusing to obey police orders not to block the highway . The road had remained blocked until TIME on DATE The roads in the vicinity had become clogged . The normal functioning of the PERSON border control post had been disrupted .

V.M. , GPE and GPE were accused of a serious breach of public order during the riot , under LAW . The prosecutor maintained that on DATE , at QUANTITY , CARDINAL people had gone onto the FAC at the QUANTITY . At CARDINAL p.m. the aforementioned applicants had driven onto the highway with CARDINAL tractors and had left the tractors on the carriageway . The CARDINAL applicants had refused to follow police instructions not to breach public order and not to leave the tractors on the road . The tractors had remained on the road until TIME on CARDINAL DATE . As a result , the highway had been blocked from the eighty - fourth to the QUANTITY . Due to the resulting increase of traffic on neighbouring roads , congestion had built up and road transport in the region had come to a halt . The normal functioning of the GPE and GPE border control posts had been disrupted .

Within the criminal proceedings , a logistics company brought a civil claim against PERSON , as the person who had incited the farmers to block the PERSON - Pasvalys - GPE highway , seeking damages of LTL CARDINAL ( approximately EUR CARDINAL ) for the loss allegedly incurred by it owing to the blockading of that road .

Several hearings , during which a number of witnesses testified , took place before GPE .

On DATE the Kaunas ORG found the applicants guilty of having incited riots or having participated in them , under Article CARDINAL § CARDINAL of LAW .

In convicting PERSON , ORG relied on video recordings of the events , documentary evidence and the testimony of CARDINAL witness . The court concluded that PERSON had organised a gathering with the aim of seriously breaching public order , namely by rioting . PERSON had been one of the leaders of the farmers’ meeting on DATE , at which the farmers had decided to attempt to achieve their goals by organising protests next to major highways . ORG noted that the second applicant had coordinated the actions of the farmers and as a consequence , on CARDINAL DATE , CARDINAL people had gone to the Vilnius - Klaipėda highway and had blocked it . As a result , traffic had been blocked until DATE . The ensuing serious breach of public order had been deliberate and had to be characterised as a riot . ORG dismissed PERSON ’s claim that he and other farmers had acted out of necessity because the roadblock had been their last opportunity to draw the government ’s attention to their problems . The farmers had had an alternative , namely , they could have brought complaints before the administrative courts . The farmers had themselves mentioned that alternative during the meeting of CARDINAL DATE ( see paragraph CARDINAL above ) . ORG further noted that a person who created a dangerous situation by his or her actions could only rely on the defence of necessity when a dangerous situation arose through negligence ( LAW CARDINAL § CARDINAL of LAW see paragraph CARDINAL below ) . However , the actions of PERSON had been deliberate and it was therefore appropriate to find him guilty of organising the riot .

ORG found it established , mainly on the basis of video recordings and documentary evidence , that PERSON had also organised a gathering with the aim of seriously breaching public order . He had taken part in the farmers’ meeting of CARDINAL DATE and had known about the decision to hold protests next to the roads . When a crowd of farmers had blocked the PERSON - Pasvalys - GPE highway on CARDINAL DATE , public order had been seriously breached . Traffic had been stopped on that part of the road , causing inconvenience to drivers and goods carriers . ORG held that “ during the blockade of CARDINAL and CARDINAL May , PERSON coordinated the actions of the crowd , that is to say he gave orders that some of the vehicles should be let through , incited [ the farmers ] to hold on and not to move away from the highway , was in contact with the participants in the protests in GPE municipality and GPE region , [ and ] was negotiating with the authorities by mobile phone in the name of the farmers ” . ORG emphasised that the farmers who had gathered ( CARDINAL people ) “ obeyed the actions of PERSON and followed his orders ” . For ORG , the actions of PERSON were to be characterised as organising a riot under LAW .

On the basis of written evidence submitted by PERSON , ORG also found that by having organised the blockade of the PERSON - Pasvalys - GPE highway , PERSON had caused pecuniary damage to CARDINAL carrier companies . As CARDINAL of the carriers had submitted a civil claim for the sum of LTL CARDINAL ( approximately ORG DATE see paragraph CARDINAL above ) , ORG deemed it proper to grant that claim .

In finding GPE , GPE and GPE guilty of having caused a serious breach of public order during a riot , ORG , on the basis of documentary evidence , audio - visual material and the testimony of CARDINAL witnesses , established that on CARDINAL DATE between CARDINAL a.m. and CARDINAL p.m. the CARDINAL of them had driven tractors onto the FAC at its QUANTITY . They had refused to obey lawful orders by the police not to breach public order and not to park the tractors on the road ( ant važiuojamosios kelio dalies ) and had kept the tractors there until TIME on CARDINAL DATE . As a consequence , and because CARDINAL people had gathered on the road , the traffic had been blocked between the CARDINAL and QUANTITY of the FAC , traffic jams had occurred and the normal functioning of the GPE and GPE border control offices had been disrupted .

The CARDINAL applicants were each given a DATE custodial sentence ( baudžiamasis areštas ) . ORG also noted that all the applicants had positive characteristics and that there were no circumstances aggravating their guilt . Accordingly , there was reason to believe that the aim of the punishment could be achieved without actually depriving them of their liberty . Consequently , ORG suspended the execution of their sentences for DATE . The applicants were ordered not to leave their places of residence for DATE without the authorities’ prior agreement . This measure was to last for DATE , whilst execution of the sentence was suspended .

ORG also acquitted , for lack of evidence , CARDINAL other individuals charged with organising the riots .

DATE . On DATE the applicants lodged an appeal with ORG . They noted , inter alia , that another farmer , DATE , had been punished under administrative law for an identical violation ( see paragraphs CARDINAL above ) .

The applicants further argued that in ORG ( hereinafter , the “ GPE ” ) member GPE , roadblocks were accepted as a form of demonstration , and that the right to demonstrate was guaranteed by ORG CARDINAL of the Convention . They referred , inter alia , to LAW ( ORG ) CARDINAL of DATE ( see paragraph CARDINAL below ) and to a report of DATE by ORG ( ORG ( CARDINAL ) on the application of that Regulation , as well as to the judgment of ORG ( hereinafter , the “ ECJ ” ) in the case of PERSON , ORG und GPE v. GPE ( see paragraphs CARDINAL below ) .

On DATE the ORG found that LOC The appellate court observed that the offence of rioting endangered public order , the safety of society , human health , dignity and the inviolability of property . The objective aspect of the offence was the organising of a gathering of people for a common goal – namely , to breach public order – and the implementation of their decision which , in the instant case , had been to organise the roadblocks . To constitute an offence , the actions also had to be committed deliberately , that is to say , the persons charged had to understand the unlawfulness of their behaviour . In relation to PERSON and PERSON , ORG observed that during the demonstrations the CARDINAL applicants had told others that it had been decided to block the roads . It had been established that PERSON and PERSON had understood that the roadblocks would be illegal and that they had been warned about their liability as organisers . Even so , they had continued to coordinate the farmers’ actions and had insisted that the farmers would maintain the roadblocks . As a direct result of the actions of PERSON and PERSON , on DATE a crowd had gone onto the highways and had blocked them , thereby stopping the traffic and breaching the constitutional rights and liberties of others to move freely and without restriction , causing damage to goods carriers and thus seriously breaching public order .

ORG also shared ORG conclusion as to the reasonableness of convicting PERSON , PERSON and GPE It noted that by driving tractors onto the highway , thus causing traffic congestion and disturbing the work of the State border control service , and by refusing to obey lawful requests by the police not to park their tractors on the road , the CARDINAL applicants had seriously breached public order . The fact that after the highway had been blocked the police and the drivers had negotiated with the farmers , with the result that some of the drivers had been let through , did not diminish the danger of the offence or its unlawfulness . ORG also emphasised that the blockading of a major highway had had dangerous consequences and could not be considered to have been a mere administrative law offence such as a traffic violation . As to the ORG argument that their offences were identical to that for which another farmer , DATE , had been given a mere administrative sanction for a traffic violation ( see paragraph DATE above ) , ORG indicated that it was not an administrative tribunal and thus could not comment on the administrative offence .

Whilst noting that the applicants had the right to freedom of expression under LAW , ORG nevertheless observed that such right was not without restrictions , should the interests of public order and prevention of crime be at stake . Analogous limitations to freedom of expression were listed in LAW of LAW ( see paragraph CARDINAL below ) . On this issue , ORG emphasised that the behaviour of PERSON and PERSON , in guiding the actions of the other individuals involved in the protest , could not be regarded as a non - punishable expression of their opinion , because they had breached public order , thus engaging criminal liability .

ORG further noted that the criminal offence had not lost its element of public danger merely because the government had refused to raise wholesale prices or had allegedly failed to take the necessary action .

On DATE the applicants appealed on points of law .

On DATE ORG , composed of an enlarged chamber of CARDINAL judges ( see paragraph CARDINAL below ) , dismissed the appeal . In providing an explanation as to the substance of the offence of rioting , as established in LAW ( see paragraph CARDINAL below ) , ORG referred to its classification as an offence against public order , which was the objective aspect of the crime ( nusikaltimo objektas ) . In describing the scope of the offence , the aforementioned provision stipulated the following features : the organisation of a gathering with the aim of causing public violence , damaging property or otherwise breaching public order , or the commission of those actions during a gathering . For ORG , a riot was to be characterised as a situation where a gathering of people deliberately and seriously breached public order , caused public violence , or damaged property . The subjective aspect of the crime was that of direct intent ( kaltė pasireiškia tiesiogine tyčia ) . The guilty person had to ( i ) be aware that he or she was performing an action that was listed as an offence in Article CARDINAL § CARDINAL of LAW and ( ii ) wish to act accordingly .

Turning to the circumstances of the present case , ORG found that the courts below had been correct in characterising the applicants’ actions as falling under LAW § CARDINAL of LAW . In particular , the trial court had properly established all the prerequisites for the application of LAW , namely that there had been a crowd and that public order had been breached by blocking the highways , stopping traffic and disturbing the work of the State border control service . The applicants had been sentenced for their offences under a law which had been in force at the time when they were committed and their sentences had been imposed in accordance with the provisions of LAW . It followed that the applicants’ convictions had been in accordance with the law and not in breach of LAW .

ORG also stated that the applicants had not been sentenced for expressing their opinion or imparting ideas , actions which were protected by the guarantees of Article CARDINAL § CARDINAL of the Convention , but for actions by which they had seriously breached public order .

Lastly , ORG shared ORG view that the applicants could not be regarded as having acted out of necessity ( see paragraph CARDINAL above ) . The fall in milk purchase prices and other problems with subsidies for agriculture had not constituted a clear or present danger to property , because the property in question had not yet materialised . The ORG had not deprived the applicants of their property , and their dissatisfaction with the government ’s agricultural policy had not justified the acts for which the applicants had been convicted .

NORP By court rulings of CARDINAL , DATE , DATE , DATE and DATE , ORG discharged the applicants from their suspended sentences .


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)

The applicants were born in DATE , DATE and DATE respectively and lived in GPE prior to their arrest .

On DATE ORG remanded the applicants in custody . The applicants were charged with forgery and legalisation of money committed by an organised group . On DATE the ORG convicted the applicants at first instance .

NORP The applicants’ detention on remand was not based on relevant and sufficient reasons . The gravity of the charges was cited as the main reason for detention in orders of DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE . The same detention orders did not mention specific and relevant facts capable of corroborating the existence of security risks . The domestic courts did not consider the possibility of applying alternative measures of restraint or did not consider them seriously . Extensions were approved without verifying compliance with the special diligence requirement : it was not stated what had been done in the period elapsed since the last extension and what had to be done during the period for which the extension would be granted ( see the orders of DATE , CARDINAL DATE , DATE , DATE , DATE , DATE and CARDINAL DATE ) . The detention orders of DATE , DATE , DATE , DATE , DATE , DATE , DATE and CARDINAL DATE employed repetitive standard formulae , notwithstanding changes in the applicants’ situation or developments in the proceedings . The trial court also issued collective detention orders in respect of the co - defendants that did not contain an analysis of their individual situations ( see the orders of DATE , DATE , DATE , DATE , DATE and CARDINAL DATE ) .


Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)

Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in DATE and lived in PERSON before his conviction .

On DATE CARDINAL PERSON , who had left home DATE intending to sell his car , was reported missing . On DATE his car was found on the outskirts of PERSON . The investigative committee at the GPE town prosecutor ’s office opened criminal proceedings in respect of PERSON ’s alleged murder . The criminal investigation department of ORG of the Republic of Mariy El carried out operational and search activities aimed at establishing PERSON ’s whereabouts and the circumstances of his disappearance .

According to a record drawn up by investigator PERSON , on DATE CARDINAL PERSON ’s body was found and the place of its location examined .

At TIME investigator PERSON drew up a record of the applicant ’s arrest as a suspect in the murder case , indicating that the applicant had been arrested at TIME that day .

From TIME investigator PERSON examined the applicant as a suspect in the presence of ORG , a lawyer provided by the ORG at the applicant ’s request . The applicant refused to give statements , relying on LAW ( privilege against selfincrimination ) .

According to operative police officers ( оперуполномоченные ) , GPE , NORP and S. , they received information concerning the applicant ’s involvement in PERSON ’s murder . At CARDINAL or TIME on DATE they came to the applicant ’s home and invited him to answer some questions ; they took him with his consent to their office at the LOC police station ; during his interview the applicant told them that he had murdered PERSON by strangling him in order to steal PERSON ’s car and that he could show them where PERSON ’s body had been hidden .

At TIME the applicant to a place on the outskirts of PERSON where he pointed out the location of PERSON ’s body . They called investigator PERSON , who arrived with other members of the investigative team , carried out an examination of the place and seized the body .

NORP The applicant provided a different version of his arrest and the events which followed . According to him , at TIME , when he and his girlfriend were buying something at a kiosk in the street , QUANTITY men in plain clothes approached him , pushed him to the tarmac , handcuffed him and put him in an unmarked car without any explanation . A plastic bag was put over his head , making it difficult for him to breathe , and he was taken to a forest , where the QUANTITY men subjected him to ill - treatment , demanding that he accept their conditions and do as he was told . He was punched ( in particular on the forehead ) , kicked ( after he had fallen to the ground ) , and administered electric shocks through wires attached to the thumbs . He agreed to cooperate and was taken to investigator G at the LOC police station .

During the criminal proceedings against him the applicant asserted that he had never shown the whereabouts of PERSON ’s body to the investigating authorities ; rather , it was his co - accused PERSON who had shown them the body ( see paragraph CARDINAL below ) .

At TIME the applicant was placed in a temporary detention facility ( “ the ORG ” ) at ORG of ORG . An officer on duty recorded the following injuries on him : a swelling and a haematoma on the left side of the forehead ; haematomas on the right side of the chest , on the right shoulder and right shoulder blade ; and abrasions on the back in the region of the waist .

At TIME on DATE the applicant was taken from the ORG to investigator PERSON to take part in CARDINAL confrontations , which were carried out TIME and TIME The applicant , who was represented by lawyer PERSON , again refused to give statements .

According to the ORG ’s records , the applicant was brought back to the ORG at TIME

In a “ statement of surrender and confession ” ( явка с повинной ) drawn up by investigator PERSON at TIME in the absence of a lawyer , the applicant confessed to participating in a conspiracy to murder PERSON and to stealing PERSON ’s car . The applicant stated that PERSON had been strangled by his partners in crime , PERSON and PERSON .

According to investigator PERSON , that day the applicant remained in his office until he was taken back to the ORG .

According to the applicant , investigator PERSON demanded that he confess to the crimes . The applicant refused , and after TIME , PERSON telephoned someone and CARDINAL men took the applicant out of the town by car . They beat him up , strangled him , threatened him with a revolver , tied him up with a car tow rope , threw him into a pit dug by CARDINAL of them and threatened to bury him alive , demanding that he confess to the murder . After being taken back to the ORG , the applicant signed a statement of surrender and confession , as requested by the investigator .

During the criminal proceedings against him the applicant stated that he had never signed the statement of surrender and confession , and that his signature on the record had been forged by the investigator . On DATE a criminal complaint lodged by the applicant on DATE against the investigator was dismissed after a handwriting expert was unable to determine whether his signature had been forged .

At TIME on DATE the applicant was taken to investigator PERSON , charged with murder and robbery , and questioned as an accused in the presence of lawyer PERSON According to the record of his questioning , he stated that he had given the statement of surrender and confession DATE voluntarily , without any pressure from police officers . He reiterated his self - incriminating statements .

During the criminal proceedings against him the applicant claimed that he had never signed the record of his questioning as an accused , and that his signature on the record had been forged by an investigator . A handwriting expert , whose opinion was sought by an investigator , concluded that a handwritten note in which the applicant fully acknowledged his guilt of PERSON ’s murder had been written by the applicant , but that it was impossible to determine whether he had also signed that record . On DATE the applicant ’s criminal complaint against the investigator ( see paragraph CARDINAL above ) was dismissed .

On DATE FAC , at a hearing held in the presence of the applicant and his lawyer , PERSON , investigator PERSON and a prosecutor , ordered that the applicant be detained on remand .

At TIME he was placed in pretrial detention facility IZ-CARDINAL/CARDINAL . Upon his admission he was examined by a medical assistant , who recorded the following injuries on him : an CARDINAL - long bruise on the front side of the neck , a bruise QUANTITY in diameter on the right side of the chest , and a CARDINALcmlong abrasion at the level of the first lumbar vertebra .

On DATE the applicant lodged a complaint with ORG of the Republic of Mariy El , requesting that investigator PERSON and the police officers responsible for his ill - treatment ( see paragraphs CARDINAL and CARDINAL above ) be prosecuted . An inquiry into his allegations was carried out under LAW ( “ CCrP ” ) by the investigative committee of the ORG prosecutor ’s office .

The pit into which the applicant had allegedly been thrown on DATE with the threat that he would be buried alive was located in a forest at a place pointed out by the applicant . Statements were taken from investigators and police officers . Investigator PERSON and operative police officers GPE , NORP and S. denied having ill - treated the applicant .

On DATE an investigator ordered a forensic expert medical report concerning the applicant ’s injuries , as recorded in pretrial detention facility IZ-CARDINAL/CARDINAL ( see paragraph CARDINAL above ) . In a report dated DATE the forensic medical expert concluded that the injuries could have been caused by hard blunt objects . They had not resulted in a health disorder of sufficiently long a duration for it to be categorised as health damage . The information contained in the medical records made available to the expert did not make it possible to establish the time at which the injuries had been inflicted .

Investigators refused CARDINAL times ( on CARDINAL and DATE and CARDINAL DATE , and DATE and DATE ) to open criminal proceedings in respect of the applicant ’s allegations for lack of the event of a crime ( отсутствие события преступления ) . Each time their decision was annulled as unlawful and unfounded by their superior at the ORG prosecutor ’s office and an additional inquiry ordered . The annulment of the ORG refusals of CARDINAL DATE , DATE and DATE followed ORG findings of DATE , CARDINAL DATE and DATE respectively that those refusals had been unlawful and lacking reasoning .

ORG decision of DATE was initially set aside after an appeal by the prosecutor before the ORG on DATE for the reasons that on DATE the criminal case against the applicant had been transferred for trial to the ORG , that those proceedings were pending , and that it was open for the applicant to raise in the course of his trial complaints concerning his illtreatment . In supervisory review proceedings on DATE the Presidium of the ORG quashed the decision of DATE . It found that the decision had been based on an erroneous interpretation of criminal procedural law and had failed to take into account LAW , which guaranteed access to court in respect of complaints against decisions of ORG authorities . It noted that ORG had explained that it was possible under LAW ORG to appeal against decisions made by ( as well as actions undertaken by or inaction on the part of ) investigating authorities at the pre - trial stage of proceedings , regardless of whether issues addressed in those decisions were connected to circumstances concerning other pending or completed criminal proceedings . The ORG referred to ORG decisions no . TIME of DATE , CARDINAL of DATE , CARDINAL-O of DATE , ORG of CARDINAL DATE , PERSON of CARDINAL DATE and CARDINAL of DATE . The ORG stressed that in the course of a trial the task of a court was to examine the admissibility of evidence and other questions relevant to the merits of the case ; such questions were factually and legally different from those examined in a review under LAW On DATE , following supervisory review and appeal proceedings , ORG decision of DATE entered into force .

The most recent decision of the investigative committee of the ORG prosecutor ’s office was taken on DATE . An investigator again refused to institute criminal proceedings against investigator PERSON and police officers GPE , NORP , PERSON for lack of the event of a crime under LAW ( CARDINAL ) of the CCrP. Relying on the statements of the applicant ’s coaccused , PERSON , the investigator concluded that the injuries found on the applicant upon his admission to the ORG could have been inflicted by PERSON on DATE . PERSON stated that shortly before PERSON ’s murder the applicant and PERSON had had a fight in a car and that he had seen them delivering several blows to each other . PERSON was unable to say where PERSON had hit the applicant . As regards the bruise on the applicant ’s neck recorded upon his admission to the GPE on DATE , the investigator noted that its cause had not been established and concluded that it could have been self - inflicted .

On DATE PERSON dismissed an appeal by the applicant against the investigator ’s decision of DATE . It found that the investigator had carried out a comprehensive inquiry , having exhausted all possibilities for collecting evidence , and that his decision had been lawful and well - reasoned .

On DATE the ORG dismissed an appeal by the applicant against ORG decision . It stated that in a review of an investigator ’s decision not to initiate criminal proceedings under LAW CCrP a court ’s task was to check whether the procedure for the examination of a complaint regarding the commission of a crime had been observed . The ORG noted that ORG had examined the material gathered during the course of the inquiry and established that the applicant ’s arguments had been examined by the investigator . It fully endorsed ORG findings that the inquiry had been thorough and the investigator ’s decision of CARDINAL DATE lawful and reasoned .

On DATE first deputy prosecutor of GPE annulled the investigator ’s decision of CARDINAL DATE as unlawful , lacking reasoning and proper assessment of evidence , and based on an inquiry which had not been thorough and had not exhausted all possibilities for collecting evidence . In particular , the applicant ’s allegations of illtreatment had not been refuted ; the circumstances in which he had received the injuries had not been established ; the existence of the pit at the place of the applicant ’s alleged ill - treatment had not been assessed ; the allegations of electric shocks had not been verified ; and the forensic medical expert had not been given all the necessary information ( including the applicant ’s version of the cause of the injuries ) . Consequently , the forensic expert ( see paragraph CARDINAL above ) had not made a full assessment , in particular of the injuries recorded upon the applicant ’s admission to the ORG . The prosecutor further noted that ( i ) the ORG records , which recorded at what times in the period from CARDINAL until DATE the applicant had been taken from the detention facility for the purpose of carrying out investigative actions and when he had been brought back , had not been assessed , and ( ii ) the documents indicating the grounds for the applicant ’s absence from the detention facility were missing . It was necessary , inter alia , to establish the applicant ’s location and a detailed chronology of the events in which had had participated in the period from CARDINAL until DATE , taking into account the fact that he had actually been arrested at TIME on DATE , as established at the applicant ’s trial . The prosecutor ordered that the investigative committee of the ORG prosecutor ’s office carry out an additional inquiry .

The applicant ’s case was heard by the ORG . On DATE it ordered that a preliminary hearing be held in order to examine the applicant ’s request for the exclusion of some evidence as inadmissible . On DATE the applicant withdrew his request . On DATE the ORG – after hearing the applicant and his legal counsel , who confirmed the withdrawal of the request – ruled that the request should not therefore be examined . According to the trial records of DATE , in the course of the trial the applicant lodged a new request for the exclusion of some evidence as inadmissible , which he again withdrew .

As regards the applicant ’s allegations of ill - treatment , the firstinstance court ( “ the trial court ” ) examined witnesses and other evidence collected in the course of the inquiry carried out by the investigative committee of the ORG prosecutor ’s office . In particular , it heard investigators A. and PERSON and police officers NORP and PERSON , who denied having ill - treated the applicant . A. , NORP and PERSON stated that the applicant had pointed out the location of PERSON ’s body . The trial court found it impossible to establish the circumstances in which the applicant had received the injuries . It noted that it could examine allegations of unlawful investigative methods as long as the admissibility of evidence was at issue , and that this was not the case because no evidence whose admissibility would have been prejudiced by the discovery of the applicant ’s injuries had been examined by it . It stressed that the circumstances in which the applicant ’s injuries had been inflicted could be established by the relevant law enforcement authorities by means of an inquiry .

In respect of an attack on PERSON in his car shortly before his murder , PERSON stated that he had seen the applicant punching PERSON to the head and body and PERSON trying to defend himself . In respect of the same episode another of the applicant ’s co - accused , PERSON . , who had also been in the car , stated that he had seen the applicant beating PERSON and PERSON covering himself from the blows .

The applicant pleaded not guilty . When asked whether he had been taken to the place where PERSON ’s body had been found , he answered that he had been taken by car to an unknown place , where he had seen PERSON talking to police officers . PERSON had been covered in mud . The applicant had been told by a driver that PERSON had dug out PERSON ’s body with his bare hands . The applicant further stated that he had not written the statement of surrender and confession .

In its judgment of CARDINAL DATE the ORG established that the applicant had murdered PERSON by strangling and had stolen his car . It found the applicant guilty of murder and robbery and sentenced him to CARDINAL years’ imprisonment . The finding of the applicant ’s guilt was based , inter alia , on statements made by GPE and PERSON . ( his accomplices in the robbery and eyewitnesses to the murder ) . In deciding on the punishment for the robbery the ORG held that the applicant had played an active role in solving the crime by pointing out the location of PERSON ’s body , and that this constituted a mitigating circumstance . The applicant ’s coaccused , PERSON and PERSON . , were convicted of aggravated robbery and sentenced to DATE imprisonment respectively ; in DATE . ’s case the sentence was suspended .

The applicant lodged an appeal with ORG against the judgment , complaining , inter alia , that the ORG should not have examined as evidence the witness statements made by A. , NORP and S. He further complained that his sentence in respect of the murder had been unfair because , in contrast with the decision on the punishment for the robbery , his disclosure of the whereabouts of PERSON ’s body had not been taken into account as a mitigating circumstance .

On DATE ORG dismissed the applicant ’s appeal and upheld the judgment of the ORG . It stated that in view of the disputed origin of the applicant ’s injuries the trial court had rightly not used evidence adduced at the time of the applicant ’s alleged ill - treatment . It agreed with the applicant that the record of his arrest had been drawn up TIME after his actual arrest at TIME on DATE , in breach of LAW . It further noted that the trial court had rectified that violation by including the time spent by the applicant in pre - trial detention in the sentence to be served .


Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Impartial tribunal;Independent tribunal)

Jon Fridrik Kjølbro;Julia Laffranque;Stéphanie Mourou-Vikström

The applicant was born in DATE and lives in GPE .

The applicant was an officer in the ORG . On DATE , relying on classified investigation reports , the applicant ’s contract was terminated and he was dismissed from his office . At the time , he did not have access to the classified reports and there was no remedy against this decision . Subsequently , following the adoption of a new law in DATE , the applicant once again applied to ORG on DATE , and asked for reinstatement . His request was rejected .

On DATE the applicant initiated proceedings before ORG to have the annulment of the decision of ORG . During the proceedings , the defendant party submitted classified documents for the court ’s consideration . On DATE ORG rejected the applicant ’s case . This decision was served on the applicant on DATE .


CASE OF R.B.A.B. AND OTHERS v. THE NETHERLANDS

No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Sudan)

Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicants are a married couple , PERSON and Mr GPE , their CARDINAL daughters , X and Y , and their son PERSON The children were born in DATE , respectively . The applicants have been in the GPE since DATE .

On DATE the applicants entered the GPE , where the first and second applicants filed separate asylum applications , and PERSON also filed applications on behalf of the other CARDINAL applicants ( the children , who were all minors ) . The immigration authorities conducted interviews with the first and second applicants on DATE ( eerste gehoor ) and CARDINAL DATE ( nader gehoor ) . An additional interview ( aanvullend gehoor ) was conducted with the second applicant on DATE .

The first and second applicants stated that they had previously lived in GPE in GPE ’s LOC province and that they had fled GPE after Mr GPE had attracted the attention of the NORP authorities on account of his activities for the opposition movement PERSON

On DATE the Deputy Minister of Justice ( Staatssecretaris van Justitie , the “ Deputy Minister ” ) notified the first and second applicants of her intention ( voornemen ) to reject their asylum requests . In the light of various contradictions in the statements given by the first and second applicants , their inability to answer basic questions about the respective tribes they claimed to belong to , and the second applicant ’s inability to provide simple topographic details of the city and the surroundings of the place where he claimed he had grown up and/or to provide any details about the PERSON opposition movement ( goal , members , structure , leader ) for which he claimed to have been active , the Deputy Minister concluded that no credence could be attached to the applicants’ asylum statement .

NORP In CARDINAL separate decisions of DATE , after the ORG lawyer had filed written comments ( zienswijze ) concerning the intended refusals , the Deputy Minister rejected the first and second applicants’ asylum requests , finding that the written comments had not dispelled her doubts concerning the credibility of their asylum statement .

The first and second ORG appeal against this decision were declared inadmissible on procedural grounds by ORG ( rechtbank ) of GPE sitting in GPE in a joint ruling , the first and second applicants having failed to submit the requisite grounds for their appeals , even though they had been given extra time to remedy this shortcoming . The applicants’ objection ( verzet ) was dismissed on DATE by ORG . No further appeal lies against this ruling .

On DATE the first and second applicants DATE and PERSON also on behalf of the other applicants DATE filed a second asylum request , which was based on essentially the same grounds as their initial request . They submitted various documents in support of their declaration . On CARDINAL DATE , the Minister for ORG ( Minister PERSON ) notified the first and second applicants of her intention to reject their fresh asylum request , holding that their repeat requests were not based on newly emerged facts or altered circumstances as required by section CARDINAL of LAW ( PERSON ) . The new documents submitted by the first and second applicants only served to increase the already existing doubts as to the credibility of their asylum statement . In CARDINAL separate decisions of DATE , having received the ORG written comments on the intended decision , the Minister rejected the applicants’ second asylum request on the grounds given in his notice of intention . The first and second applicants did not lodge an appeal against this decision before ORG of The Hague even though it would have been possible to do so .

On DATE the first and second applicants , and PERSON also on behalf of the other applicants , filed a third asylum request based on the claim that , if they were to be sent back to GPE , their daughters NORP and Y would be subjected to female genital mutilation ( “ LOC ” ) , contrary to LAW , due to tribal and social pressure . In interviews with the immigration authorities held on DATE , the first and second applicants stated that they opposed ORG but would be unable to protect their daughters against it . They further submitted a document issued by ORG in the GPE on DATE stating that the applicants “ are all NORP citizens although they do not possess the requisite documents to enable them to obtain a NORP laissez - passer ” .

On DATE , the Minister for ORG notified the first and second applicants separately of her intention to reject their third asylum request . The Minister doubted the sincerity of the applicants’ purported fear that their daughter would be subjected to ORG because they had not raised this argument in their previous asylum requests . The Minister also took into consideration the order amending LAW ( Wijzigingsbesluit Vreemdelingencirculaire DATE , “ FAC ” ) , which was based on an official report on GPE drawn up by ORG ( Ministerie PERSON ) on DATE ( DPV / AMCARDINAL ) , according to which women who had had the benefit of a higher education ( namely a university or higher professional level education ) and who were living in the larger cities in GPE did not experience any social stigma for not subjecting their daughters to PERSON , whereas women in the rural areas who had received little or no schooling had little choice but to subject their daughters to this practice . As the first and second applicants had still not substantiated their personal identities or given a credible statement concerning their place of residence in GPE , the Minister considered that they had not established that they did not belong to the group of more highly educated people able to reject the practice of female circumcision . The Minister also considered that the second applicant constituted a danger to public order , having accepted a negotiated penalty ( transactieaanbod ) in order to settle out of court a criminal charge for shoplifting .

On DATE the applicants filed their written comments concerning the intended refusal of their third asylum request . They argued that the Minister had failed to present a proper reasoning for her finding that it had not been demonstrated that the first applicant did not belong to the group of highly educated women who would be able to resist the social pressure to circumcise their daughters , especially as the first applicant had stated in her first request for asylum that she had only had a primary school level education . The first applicant therefore offered to take an IQ test to prove her level of education .

NORP In CARDINAL separate decisions of DATE the Minister rejected the first and second applicants’ asylum request on the grounds detailed in her notice of intention . The Minister added that it was not for her to examine the first applicant ’s level of education through an IQ test but rather for the applicants to prove their identities and background in their asylum application .

In a joint ruling given on DATE the provisional - measures judge ( voorzieningenrechter ) of ORG of The GPE sitting in GPE granted the first and second ORG appeals , quashed the impugned decisions and remitted the case to the Minister for a fresh decision . The provisional - measures judge held :

“ The judge notes that it is no longer in dispute that the petitioners are NORP nationals . Nor is it in dispute that both daughters of the petitioners , currently DATE , have not been circumcised .

According to the policy guidelines set out in CCARDINAL/CARDINAL.CARDINAL.CARDINAL Vc CARDINAL , a girl can DATE if return would entail a real risk of genital mutilation – qualify for an asylum - based residence permit ... The following conditions apply :

there exists a risk of genital mutilation ;

the authorities of the country of origin are unwilling or unable to provide protection to persons exposed to an imminent risk of genital mutilation ; and

no internal relocation possibility is deemed to exist in the country of origin .

According to chapter ACARDINAL Vc CARDINAL “ Country - specific part , the asylum policy in respect of GPE ” under QUANTITY Vc , genital mutilation is widespread in GPE . Although there is a Health Act forbidding genital mutilation , the NORP authorities hardly ensure compliance with that act . The parental freedom of choice ( as the court understands , whether or not to have their daughters circumcised ) is connected to the cultural attitudes of the family and surroundings . Women with a higher education in larger towns will generally not have their daughters circumcised . This will generally not give rise to problems from their social environment . The term ‘ women with a higher education’ is to be understood to mean women who have had an academic or higher vocational education . According to the official report of DATE , women with a low level of education living in rural areas have little choice . According to the same chapter it can not be deduced from the official report whether it is possible to avoid circumcision by settling elsewhere in GPE , meaning that for the assessment of the question whether there is an internal relocation alternative , each individual ’s declaration is of decisive importance .

The defendant ’s refusal to grant the requested residence permit is based to a large extent on the fact that the identity and origin of , in particular , [ the first applicant ] has not been demonstrated , but also because in the proceedings concerning the first asylum request , it was found that statements lacking credence had been given . For that reason , it is not possible to assess whether the conditions set out in the policy guidelines are met .

The refusal thus reasoned can not be upheld .

The policy guidelines are aimed at protecting girls and women against circumcision , an act which according to the policy is to be seen as a violation of LAW [ of the Convention ] . ...

The assertion that [ the first applicant ] based her first asylum request on an asylum statement subsequently found to be implausible is correct . However , it is unclear what the relevance of that conclusion is in the context of the present [ asylum ] application , which is concerned with the protection of the daughters and not of [ the parents ] . ”

On DATE the Minister filed a further appeal against this judgment with ORG ( GPE bestuursrechtspraak ) of ORG .

On DATE , ORG granted the Minister ’s further appeal , quashed the judgment of ORG and rejected the first and second ORG appeal against the Minister ’s decision of DATE . It considered that , pursuant to section QUANTITY , it was for the applicants to demonstrate as plausible those facts and circumstances which could lead to the conclusion that they were eligible for admission pursuant to the policy in force , and not for the Minister to demonstrate the opposite . As not only the ORG statements about their identity and origin but also their asylum statement had been found to lack credibility in a decision of CARDINAL DATE which had obtained the force of res iudicata , the Minister could reasonably have found that the applicants had not made out a persuasive case to show that they complied with the conditions for admission under the policy concerned , that the authorities could not provide them with protection , and that there was no internal relocation alternative for them . No further appeal lay against this ruling .

The third applicant , PERSON , gave birth to a daughter on DATE and to a son on DATE . On DATE was granted a GPE residence permit for the purpose of remaining with her partner . On DATE she informed the ORG that she did not wish to maintain the application in so far as it concerned her .

In the meantime , on DATE , the Minister for ORG ( Minister PERSON Integratie ) rejected a request for a residence permit filed by the fourth applicant , PERSON , who had come of age in the meantime . On the same day PERSON filed an objection ( bezwaar ) against this refusal and , on DATE , she attended a hearing on that objection before an official commission during which she stated that in DATE , as a volunteer for CARDINAL non - governmental organisations , she had disseminated information about ORG , for which purpose she had attended a training course .

On DATE the Minister rejected the fourth applicant ’s objection . In so far as the fourth applicant would allegedly be exposed to the risk of being subjected to circumcision in GPE , the Minister noted that her parents opposed this practice and therefore found it likely that they would not force PERSON to be circumcised . As regards pressure from the social environment , the Minister noted that PERSON had still not submitted any documents substantiating her identity or alleged PERSON origin . In this situation , the Minister found that it was not necessary to address the question of whether internal relocation would be a possibility . No further information about these proceedings has been submitted .

On DATE the fifth applicant , Mr PERSON , applied for a residence permit under LAW in the GPE ( overgangsregeling langdurig in GPE verblijvende kinderen ) , which provided that minors without a residence permit who had been residing in the GPE for DATE could obtain a residence permit if they met certain criteria . These criteria included that the minor in question must have applied for asylum DATE before reaching DATE and must not have evaded monitoring by the GPE authorities for DATE . The close family members of such minors could also qualify for accompanying family - member residence permits for close relatives ( that is to say parents and siblings ) . The fifth applicant also sought accompanying family - member residence permits for his parents , his sisters NORP X. , and for the latter ’s CARDINAL children , who are minors .

On DATE this request was rejected by the Deputy Minister of Security and ORG ( Staatssecretaris PERSON ) , who held that the applicants had not been in touch with the designated immigration authorities for DATE . On DATE , after remittal of the case by ORG on DATE , the ORG objection was again rejected by the Deputy Minister . No further information about these proceedings has been submitted .

NORP In a letter of DATE , the Deputy Minister informed the Mayor of GPE that he would not avail himself of his discretionary powers to admit the applicants to the GPE . The applicants’ objection was declared inadmissible by the Deputy Minister , who held that the content of the letter of DATE was not a decision within the meaning of section CARDINAL of LAW which could be challenged in administrative appeal proceedings . Although the ORG appeal against this decision was granted on DATE by ORG of The GPE sitting in GPE , it nevertheless held that the legal effects of the impugned decision were to remain intact . No further information about these proceedings has been submitted .